Case Law Update – Significant decisions from the Courts

This section includes important cases on:

• Travel time under the Working Time rules
• Challenge to tribunal fees
• Disability and pension reduction
• Holiday Pay calculations
• Sickness absence and holiday carry over
• Indirect Age Discrimination
• Work related stress claim
• Consultation and redundancy
• Dismissal after admission in discipline meeting
• Diabetes and Disability
• Redundancy consultation decision
• Offensive tweets on Twitter Account
• Obesity and disability 1
• Obesity and disability 2
• Disability discrimination at Return to work meeting
• “Emergency Leave” – duty on the employee
• On call is Working Time
• The use of covert recordings
• Constructive Dismissal
• Dismissal – post natal depression
• Use of Occupational Health reports
• Court Shorts!

After these important cases we have also added – Court Shorts – one line comments on recent cases.

Case Summaries

Travel time under the Working Time rules

Back in June, the European Court Advocate General gave a preliminary opinion (not binding) that Employers should treat all journeys between clients and customers as working time; including the first and last trips of the day. Currently in the UK, employers may have a workplace agreement that the first and last journeys of each day are not included as working time for those who work from home.

In September the full Court agreed with this opinion and ruled on the facts of the case. This means that in the UK, for workers who do not have a fixed or habitual place of work, time spent travelling between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’ within the meaning of the EU Working Time Directive. This will have implications for working hours and entitlement to breaks, so Employers are encouraged to review their policies, and may need to arrange for more staff to “opt out” of the 48 hour weekly limit.

The National Minimum Wage rules are currently adopting a different approach, ruling out travel time – but this is likely to be open to challenge at some point in view of this EC decision that the travel is effectively “work”.

Challenge to tribunal fees

When Employment Tribunal fees were first being introduced, Unison endeavoured to challenge their legality but this was rejected as being premature due to lack of evidence. That legal challenge was re-presented by Unison when the dramatic reduction in the number of Employment Tribunal claims, which had followed the introduction in fees, became evident. These challenges have all now been considered together by the Court of Appeal. In summary Unison’s arguments were that: the fee regime stopped European-based rights (such as discrimination) being effectively enforced; and the fees charged for complex claims, such as those for discrimination, indirectly discriminated against those with protected characteristics (such as women who are statistically more likely to purse a discrimination claim). The Court of Appeal has rejected all of the union’s arguments.
This means that fees are here to stay for the time being, although the Government is now undertaking its own review of the scheme, and the Scottish Parliament has announced that it intends to scrap the fee system.

[Case; R (on the application of Unison) v the Lord Chancellor CA 2015]

Disability and pension reduction

The EAT has overturned an employment tribunal’s finding that a disabled employee suffered discrimination when he received an ill-health retirement pension based on his final salary, rather than the salary he had received before his working hours were reduced in a series of reasonable adjustments.
When Williams retired through ill-health at the age of 38 because of his disabilities, the rules of the University’s pension scheme entitled him to immediately receive a pension, without actuarial reduction, based on his final salary.
In the year leading up to his retirement, he had requested, and been granted, a number of reasonable adjustments to his working hours, with the end result that he was working half of his previous hours by the time he retired. His salary had been adjusted to the new hours, so the pension which he received was half what it would have been had he taken ill-health retirement when still working full-time.

The tribunal accepted his argument that he had been treated unfavourably by the rules of the scheme, since his disability had ‘caused him to have a lower pension than he would have done had his disability not caused him to work part-time’.
The University appealed.
Mr Justice Langstaff, President of the EAT, considered that the tribunal’s conclusion that Williams had suffered unfavourable treatment was ‘manifestly perverse’ – the tribunal’s conclusion could not stand – the matter would be remitted to a fresh tribunal for a complete rehearing.

[Case; Trustees of Swansea University Pension Scheme and anor v Williams, EAT 2015]

Holiday Pay calculations

Since the decision of the EAT in the case of Bear Scotland in late 2014, there has been uncertainty about the inclusion of purely voluntary overtime in holiday pay calculations. Most assumed that whilst compulsory overtime (guaranteed and non-guaranteed) would have to be reflected in holiday pay after this decision, voluntary overtime was exempt.

The Northern Ireland Court of Appeal (July 2015), has ruled that there is “nothing in principle” to prevent purely voluntary overtime counting towards holiday pay entitlement.
The Court overturned the Tribunal decision and sent it back to be reheard and to take account of the Employee’s evidence on his precise overtime arrangements.
So still a case of wait and see!

[Case; Patterson v Castlereagh Borough Council NICA 2015]

Sickness absence and holiday carry over

The Employment Appeal Tribunal has clarified two issues affecting the rights of workers on long-term sick leave to carry forward untaken annual leave under the Working Time Regulations 1998 (WTR).

Firstly, the EAT has confirmed that a worker on sick leave can carry forward untaken leave into a new holiday year under the WTR even if the worker was capable of taking annual leave. It follows that the principle set out by the Court of Appeal in the case of NHS Leeds v Larner. This applies to those who are unwilling to take annual leave during sickness absence as much as those who are unable to do so. Note, however, that the case before the EAT only concerned the four weeks’ leave granted by the WTR, and not the additional leave of 8 days granted in the UK.

Secondly, the EAT says that such untaken leave cannot be carried forward indefinitely. European law only requires, at most, that employees on sick leave are able to take annual leave within a period of 18 months of the end of the leave year in respect of which the annual leave arose. Consequently, the WTR are to be read as permitting a worker to take annual leave within 18 months of the end of the leave year in which it is accrued where the worker was unable or unwilling to take annual leave because he was on sick leave and, as a consequence, did not exercise his right to annual leave.

Facts of the case
The case came about when the claimant claimed a payment in lieu of untaken leave when his employment came to an end after a long period of sickness absence. His leave year ran from 1 February to 31 January each year. His sickness absence began on 26 April 2010 and ended with the termination of his employment on 10 February 2014. During that period he did not take any annual leave.
The EAT ruled that the claimant was entitled to a payment in lieu of leave that accrued in the 2012/13, 2013/14 and 2014/15 leave years but not the leave that accrued in the 2010/11 and 2011/12 leave years.
Interestingly the EAT gave both parties permission to appeal to the Court of Appeal (although not in respect of the decision concerning the 2013/14 and 2014/15 leave years).
[Case; Plumb v Duncan Print Group Ltd, EAT, July 2015]

Indirect Age Discrimination

Is it indirectly discriminatory on the grounds of age to retire police officers entitled to receive a pension, in order to cut costs?

No, held the EAT when they overturned a tribunal decision that the Police Forces could not justify their decision.

Police officers are not employees, and their office will only terminate (unless found guilty of misconduct or capability) upon retirement.

Regulation A19 of the Police Pensions Regulations 1987 allows for retirement of officers who meet certain criteria, if doing so is in the general interest of efficiency.

Following the Government’s Comprehensive Spending Review in 2010, police forces were required to make 20% cuts in their budgets over four years. Since 80% of their costs related to staffing Forces across the country looked to reduce staff numbers.

Using A19 clearly disadvantaged officers over the age of 48 and those affected argued indirect age discrimination. Indirect age discrimination is not unlawful if justified as being a proportionate way of achieving a legitimate aim.

Overturning the employment tribunal’s judgment, the EAT found the only way the forces could be certain of a reduction in officer numbers was by use of A19, since there was no power to make a police officer redundant, and their actions were therefore justified.

[Case; West Midlands Police v Harrod & Ors.EAT 2015]

Work related stress claim.

Not a new or surprising decision; more confirmation of the previous case law, which is always good for consistency! Stress claims continue to be made against Employers; with reports suggesting that the recession and constant budget cuts are creating more pressurised workplaces.

Mr. Easton was a well respected store manager for B&Q. He had absences for depression and agreed a phased return (always good for the Employer to demonstrate reasonable treatment). However the phased return was not a success and Mr. Easton was again signed off work with depression. He then claimed damages alleging that the depression was work related and B&Q had been negligent.>

The Judge referred to the principles established in the leading stress case of Hatton v Sutherland, including that the Employer is entitled to take the employees’ actions and representations at face value without the need to make searching background enquiries. The initial absence had not been foreseeable; the Manager had maintained a 10 year career managing large retail outlets; he had no history of mental illness and neither he nor other managers in similar roles had issues with work related stress. By returning to work on a phased basis, the manager had indicated he felt he was fit for work, and although the Employer knew of his condition and the fact that he was taking medication, there was no negligence in the way it was handled.

[Case; Easton v B&Q High Court 2015]

Consultation and redundancy

Can the obligation to consult over collective redundancies be triggered when an employer makes a provisional decision to close a workplace?

Yes, held the EAT, in dismissing a school’s appeal against a protective award of 90 days pay per employee in respect of a failure to consult over the closure of a school.

The school decided in February 2013 that it would have to close at year’s end if pupil numbers had not increased by April. Ultimately, the school decided to close in April 2013 and there was never any collective consultation over the decision, in breach of Section 188 of TULR(C)A.

The EAT considered an unresolved question [from the case of United States of America v Nolan] on the different tests as to what triggers the duty to consult, whether it is an employer proposing a strategic decision that will foreseeably or inevitably lead to redundancies, or when that decision has been made and redundancies are a consequence.

The EAT noted that the decision (February 2013) to close the School, unless numbers increased ‘was either a fixed, clear albeit provisional intention to close the School or amounted to a strategic decision on changes compelling the employer to contemplate or plan for collective redundancies. On either analysis, the duty to consult arose on that date’. The EAT did not find it necessary to decide which test applied.

The EAT also rejected a ground of appeal that special circumstances excused a failure to consult because of the need to keep the closure plans secret for fear of confidence in the school being lost. That an employer which had not thought about consultation might, with hindsight, give consideration to the practicalities of consultation, is not a special circumstance excusing the duty to consult.

Employers need to commence meaningful consultation as soon as possible, when redundancies are being contemplated and not just after the decision has been made.

[Case; E Ivor Hughes Educational Foundation v Morris, EAT 2015]

Dismissal after admission in discipline meeting

Mr. Wiltshire was a supervisor overseeing work that involved heavy lifting. He was dismissed after a container of which he was in charge fell 20 feet to the ground when being lifted. He accepted full responsibility for the incident and admitted that the procedure he had carried out for securing the container was dangerous.

Nonetheless the Tribunal upheld Mr. Wiltshire’s claim for unfair dismissal. The Tribunal said that if the employer had conducted a wider investigation it would have uncovered facts which put Mr Wiltshire’s admissions into a wider context. The employer should have looked at the level of pressure its employees were working under and taken into account that Mr Wiltshire’s dangerous actions had been impacted by that pressure.
The EAT at the Appeal concluded that the Tribunal had misapplied the law and had substituted its own judgment for that of the employer rather than considering whether the employer’s decision was within “the range of reasonable responses”; the EAT remitted the case to a different Tribunal to be considered afresh.

In its decision the EAT emphasised that, even where an employee confesses, employers must still consider whether there is any conflict in the evidence. This case is a reminder to employers that it may not always be enough to close the file once a confession has been recorded.

[Case; CRO Ports London Ltd v Wiltshire EAT 2015]

Diabetes and Disability

The EAT has overturned an employment tribunal’s decision that an employee’s type 2 diabetes amounted to a disability under the Equality Act 2010. The condition, which was controlled by abstaining from sugary drinks, did not have a substantial adverse effect on the employee’s ability to carry out day-to-day activities.

S was employed as a bus driver. Following his dismissal for gross misconduct he sought to bring claims of disability discrimination, among other things. An employment tribunal decided at a preliminary hearing that S was disabled on the basis of his type 2 diabetes. It referred to the fact that S took medication to reduce his blood sugar levels and avoided sugary drinks. MT Ltd lodged an appeal against this decision.

The EAT, allowed the appeal against the finding of disability. The Court could not accept that abstention from sugary drinks constituted a substantial adverse effect on day-to-day activities, within the meaning of ‘disability’ in the Equality Act 2010. Nor was it the case that type 2 diabetes amounts to a disability per se. While a particular diet may be a ‘treatment or correction’ that must be ignored when assessing the effect of an impairment, he did not consider that abstaining from sugary drinks was sufficient to amount to a treatment or correction for this purpose.

The EAT then went on to order that S should reimburse the £1600 in appeal fees paid by MT Ltd.
[Case; Metroline Travel Ltd v Stoute, EAT]

Redundancy consultation decision.

Under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA), employers are obliged to inform and consult collectively with employees where they propose to make 20 or more employees redundant at one establishment within a period of 90 days or less.

Tribunal
The case involves high street retailer Woolworths, which went into administration in November 2008, followed in March 2010 by another retailer, Ethel Austin, resulting in large scale redundancies. An employment tribunal made awards against the employer for failing to inform and consult employees working in the shops about these redundancies. However, the tribunal only made awards for employees who worked at stores with 20 or more employees, holding that the duty under TULCRA did not apply to stores with fewer than 20 employees because each store was a separate ‘establishment’ for consultation purposes.

EAT
The Employment Appeal Tribunal overturned the tribunal’s decision, finding that the words “at one establishment” in the UK legislation were incompatible with the European directive on collective redundancies and should, therefore, be disregarded.

European Court Decision.
The ECJ held that ‘establishment’, in the collective redundancy legislation, refers to an individual workplace (or, more accurately, the entity to which the workers made redundant are assigned to carry out their duties), not to the employer as a whole.

So when establishing headcount to see whether an employer needs to engage in collective consultation (required when contemplating 20+ redundancies in a period of 90 days), Woolworths was right to count each store as a separate ‘establishment’. This, in turn, meant that it did not need to engage in collective consultation with staff who worked in a store with a headcount of less than 20.

Comment
The ECJ adopting a “narrow” approach to the interpretation of ‘establishment’ under the European directive is favourable to employers as it is likely to reduce the number of times their obligation to inform and consult collectively under TULRCA would be triggered.
[Case; Woolworths v WW Realisation. ECJ 2015

Offensive tweets on Twitter Account

The EAT has overturned an employment tribunal’s decision that a dismissal for posting abusive tweets on a personal Twitter account was unfair.
In Game Retail Ltd v Laws, L was employed as a risk and loss prevention investigator responsible for investigating losses, fraud and theft. He had responsibility for 100 stores. He opened a personal Twitter account which did not specifically link him to his employer. He started following the stores for which he was responsible in order to detect any inappropriate activity by employees, such as offering video games for sale. One local manager tweeted on his store account an encouragement to other stores to follow L and 65 stores did so. Following an anonymous store manager notifying the employer about offensive and abusive tweets posted by L, an investigation took place and L was dismissed for gross misconduct.

L claimed unfair dismissal and the employment tribunal upheld his claim. Although the judge accepted that customers and employees might have been offended by the tweets, he considered that dismissal was not within the band of reasonable responses as the tweets had been posted for private use and it had not been established that any employee or customer had seen his tweets or associated him with the company. In addition, the company’s disciplinary policy did not clearly state that inappropriate use of social media in an employee’s own time would be treated as gross misconduct.

The employer appealed to the EAT which overturned the tribunal’s finding. The judge had not been entitled to find that L’s followers were restricted to social acquaintances and so customers and employees would not have seen his tweets. He had not made use of the restriction setting on his account, nor had he set up separate accounts, one to follow the stores and one for purely personal use. The 65 stores that followed him would have seen his tweets, as would any customers who picked up on his account, perhaps after it was recommended by the local manager.

The case was remitted to the employment tribunal to be heard by a different judge.
NOTE. It would appear from the EAT’s decision that the following factors will be relevant when deciding whether a dismissal for this type of reason is unfair:

• The nature of the tweets and how offensive they are
• Whether the tweets are made on a purely personal Twitter account
• Whether privacy restrictions are in use so that only friends can see tweets
• Whether there is anything on the employee’s Twitter profile or in any of the tweets to link him to the employer
• Whether tweets say anything derogatory about the employer
• Whether the tweets are posted in an employee’s own time or in work time
• Whether the employee uses his own equipment or the employer’s
• Whether the disciplinary rules make it clear what sort of misuse of social media gives grounds for dismissal.

[Case; Game Retail Ltd v Laws EAT 2014]

Obesity and disability 1

Is obesity a disability under EU law?

It can be, held the European Court of Justice in FOA (Kaltoft) v Billund. However, discrimination on the grounds of obesity is not itself unlawful.

Mr Kaltoft was a clinically-obese childminder for a local council in Denmark. He was dismissed due to redundancy; he alleged that obesity was a factor and brought proceedings. The District Court referred the issues to the ECJ for a preliminary ruling.

The Court held that obesity itself cannot be regarded as a ground for protection against discrimination. However, the ECJ went on to say that “under given circumstances, ‘obesity’ entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one”, it could be a disability. The origin of the disability, or contribution to it, was irrelevant.

It was a matter for national courts (e.g. employment tribunals) to determine whether the conditions required for obesity to be a disability are met.

Therefore, a worker with long-term obesity might be regarded as disabled.

[Case Kaltoft v Municipality of Billund ECJ 2014]

Obesity and disability 2

In Kaltoft v Billund in Denmark, the European Court of Justice ruled that obesity can constitute a disability under the Equality Act 2010 – see above. The first obesity case in the UK following this ruling has been heard. In Bickerstaff v Butcher, Mr. Bickerstaff said he has been harassed by his colleague Mr. Butcher because of his weight. Mr. Butcher had made the following comments about the claimant stating he was “so fat he could hardly walk” and that he was “so fat he would hardly feel a knife being stuck into him”. With a body mass index of 48.5 Mr. Bickerstaff is classed as morbidly obese. Referring to the Kaltoft case, the judge confirmed that Mr. Bickerstaff had been harassed for a reason which related to his disability, namely his morbidly obese condition. The employment judge said it was satisfied that Mr Butcher had been “harassed for a reason which related to his disability, namely his morbid obesity condition”. It heard evidence of the claimant’s excessive body mass index (48.5), sleep apnoea and gout.

The tribunal panel referred to December’s ruling in the European Court of Justice (ECJ). The ECJ said that if obesity hinders “full and effective participation” at work, it could count as a disability.

It appeared to make no difference to the tribunal that Mr. Bickerstaff’s condition was self-inflicted and his health would have improved if he had lost weight: the important issue for the tribunal was the impact of the condition on him, not its cause.

Employers need to be aware that inappropriate comments from colleagues about an individual’s obesity (whether verbal or through social media) may constitute disability harassment. Employers can be vicariously liable for such comments, which can lead to tribunal claims and compensation for injury to feelings.

[Case; Bickerstaffe v Butcher NIIT 2015]

Disability discrimination at Return to work meeting

Not for the first time recently an employee has secretly recorded comments at meetings with Management. This time it was a Police Sergeant who was caught on tape. PC Gardner had been off work with a stress related condition and had a return to work discussion a few days before his return to work date. He covertly recorded the conversation. His sergeant referred to the reason for absence as “going a bit f****** doolally tap (army slang for losing your mind) and made references to the film One flew over the Cuckoos Nest – a reference to a mental institution. The PC was awarded compensation for harassment on the grounds of disability.

It is possible for an Employer to build a defence to this type of complaint, but it was found that:

• The sergeant had received no Equality related training for 8 years
• The Equality policies were flawed
• Equality issues were not mentioned in the return to work guidance procedures for Management
• There was lack of action after the PC raised a grievance

[Case; Gardner v West Yorkshire police ET 2014]

“Emergency Leave” – duty on the employee

Cases on so-called “Emergency Leave” are pretty rare, so this dispute about an employee’s failure to make reasonable contact is interesting and important.

Employees have the right to a reasonable (interpreted by Tribunals as a few days only) amount of time off work ‘to take action which is necessary’ to assist or care for their dependants in certain specified circumstances, as set out in the Employment Rights Act 1996. These circumstances include the provision of assistance when an employee’s dependant falls ill or gives birth. If an employee is dismissed because he or she has exercised the right to time off, this dismissal will be automatically unfair. (No service is required.)

In order to exercise the right to time off, the employee must tell the employer the reason for his or her absence as soon as reasonably practicable. In addition, the employee must also communicate the anticipated duration of that absence, unless it is not reasonably practicable to tell the employer the reason for his or her absence until after the employee returns to work.

The EAT upholds a tribunal’s decision that an employee had not been automatically unfairly dismissed for exercising his right to take time off for dependants. The employee had been absent from work to take his heavily pregnant partner to hospital to give birth. He had not contacted his employer to inform it of his absence until the evening of the second day, and nor had he indicated the expected duration of his absence. (He was absent for 5 working days)

He was subsequently dismissed for misconduct relating to his absence and failure to make contact. (He was already on a final written warning for other misconduct offences.)The tribunal was correct to hold that as the employee had failed to comply with the requirement to inform his employer of the reason for his absence ‘as soon as reasonably practicable’, the dismissal was not “automatically unfair”.

[Case; Ellis v Ratcliff Palfinger Ltd. EAT 2014]

On call is Working Time

Two ambulance paramedics who worked “on call” shifts away from home were entitled to treat this as “working time”. They normally worked from an ambulance station, but sometimes provided night cover after the completion of a day shift. They could stay in “accommodation of their choice”, but within a 3 mile radius of the base station, and not at home. One of the claimants worked a normal day shift from 8.00 am to 6.00pm; immediately followed by a period of on call night cover for 4 consecutive days. This was a total of 97 hours. The paramedic argued that this was all working time and he had been denied various rights including rest breaks or compensatory rest. The Tribunal felt that not all of the on call time was working time, based on earlier case law; it was only the times they were actually working that counted.

The EAT overturned this decision. Because of the restrictions imposed by the Employer (they had to be within 3 miles of base; and could not be at home), the Court felt that all of the shift should be classed as working time. As such the employees were not given statutory breaks.

The message is that the more the employee is restricted during a period of being “on call”, the more likely it is to be classed as working time. In this particular case, the employees were apart from family, had very limited freedom to socialise or manage their time. The time was not their own to enjoy, so is working time.

[Case; Truslove v Scottish Ambulance Service EAT 2014]

The use of covert recordings

Thanks to advances in technology, most employees now carry recording devices in their pockets because their Smartphone can be turned into a recorder. Therefore, it is increasingly likely that any conversations between you and your employees may be recorded without your knowledge. It is also possible that a recording device could be left recording when apparently private conversations are taking place.

Surprisingly beyond normal data protection restrictions, there is no specific legislation that prohibits covert recordings during confidential workplace meetings. The question asked by many is: If a recording is made without your authority can this later be produced as evidence in an Employment Tribunal? Surely data protection laws come into play here? This was the question that was addressed in the recent case of Punjab National Bank (International) Ltd and others v Gosain [2014] EAT.

Gosain attended formal disciplinary and grievance meetings with her employer prior to resigning. Without the panel being aware, she recorded both the hearings themselves and the private discussions of the panel that followed. The recordings of the private discussions included some derogatory comments about her and she wanted to produce those recordings at the Employment Tribunal to support her argument that she had been constructively dismissed and had suffered discrimination.

The Employment Appeal Tribunal (EAT) ruled that the recordings were admissible. The EAT drew a distinction between this case and previous rulings. In this case, the EAT decided that the recordings of the private discussions had not included content relating to the actual deliberations of the panel (concerning the offences alleged) which would not have been admissible, but only general discussions.

Following this decision the advice must be that, given the prevalence of recording devices, you take a proactive approach. Make it clear in your disciplinary and grievance procedures whether you will allow recordings. Take charge and include a discussion about recordings at the start of each disciplinary and grievance meeting, so everyone is aware of the approach being adopted.

If recording is permitted, ensure that each party provides their express consent and it is sensible for you to take control of the recording and transcribing if at all possible. Alternatively, ask employees to confirm that their mobile phone has been turned off at the beginning of the meeting and confirm that consent is not given by any party for the content of the meeting to be recorded.

Of course, this does not mean that an employee will not attempt to make a recording anyway, so ensure that nothing is said which you would not want to be heard in public but at least it offers a clear basis on which to argue inadmissibility, if needed. Also, more practically, look out for that bag or jacket left in the room during any adjournment. In the unfortunate case that you do discover a covert recording has been made, you should request a copy of the original recording rather than a transcript from the employee – to ensure that the recording is accurate and complete.
[Case; Punjab National Bank (International) Ltd and others v Gosain [2014] EAT.]

Constructive Dismissal

Constructive dismissal arises when the Employer fundamentally breaks the contract by its conduct – and the employee resigns in response. Can a delay in resigning amount to an affirmation of a breach of contract? The EAT in this case said that the delay alone was not enough to reject the complaint.

The employee suffered two acts of racial discrimination at work, which the employment tribunal held amounted to a breach of contract. Although initially investigated by the employer, the HR manager ultimately failed to investigate the employee’s grievance.

The employment tribunal held that the employee had affirmed the breach of contract because the last act of mistreatment, the HR manager’s failure to investigate the grievance, was some six weeks before the employee’s resignation.

The EAT overturned this decision. The Court emphasised that the passage of time is not to be taken in isolation. Rather, the principle is whether the employee has demonstrated that they have made a choice (i.e. to stay or leave), which they will do by their conduct.

They will do so, generally, by continuing to work in the job or by communications which show that they intend the contract to continue. But the issue is essentially one of conduct and not of time.

[ Case; Chindove v Morrisons Supermarkets EAT 2014]

Dismissal – post natal depression

This decision confirms previous case law in this sensitive area. Ms. Lyons worked at a Job Centre Plus. She was pregnant in 2009 when she also involved (as a car passenger) in a fatal traffic incident. Whilst on maternity leave L was diagnosed as suffering from moderately severe post-natal depression.
Two days before her scheduled return to work in mid-September 2010, she saw her GP and was signed off with post-natal depression until 14 October, before commencing a period of sick leave that invoked the employer’s attendance management policy. She never returned to work and was eventually dismissed in March 2011. She brought a number of claims in the employment tribunal, including that her dismissal amounted to direct sex discrimination or to pregnancy and maternity discrimination. The tribunal ruled against her and she appealed to the EAT.

The EAT also rejected her complaints. It ruled that the case of Brown v Rentokil (a European Court decision from 1998) was the important precedent here. As the dismissal was outside the protected period (covering pregnancy and maternity leave) an Employer can justify dismissal when normal absence triggers are reached. A man would have been treated in the same way, which defeats the sex discrimination point. The Brown case also confirmed that when a pregnancy-related illness arose during maternity leave and persisted after that (protected) period, an employer was (after the end of maternity leave) permitted to take this into account. Again it is possible to justify dismissal in the same way that a man’s absences for illness are taken into account.

[Case; Lyons v Job Centre Plus EAT 2014]

Use of Occupational Health reports

Employers often rely on medical reports to ascertain whether an employee has a disability. In a worrying decision, the Court of Appeal has ruled that an employee may be disabled even though a report from Occupational Health stated that in their opinion, the employee was not disabled. The case involved a council worker allegedly suffering from a stress related condition – one of the more problematic reasons for absence. The Employer obtained a report from Occupational Health (OH) which clearly stated that the employee was not covered by the (then) Disability Discrimination Act.

The man was eventually dismissed and brought various claims to Tribunal. The Council argued that the man did not have a disability; the Court of Appeal disagreed and sent the case back for rehearing in Tribunal. The Court considered the OH report to be “threadbare”, with no reasoning provided to support its decision. The Court advised Employers to form their own opinion and not to merely follow OH advice without question. This is a tough decision!

Note. Employers sometimes have to make a management decision based on medical information. It is not the Medical Advisors role to make the decision, only to offer advice. Management has to take responsibility for the final decision: obtain Medical advice first, and then review it before making a decision to dismiss. Ask OH to justify their opinion, particularly when dealing with a suspected disability, which has a statutory rather than a medical definition.

[Case; Gallop v Newport City Council. Court of Appeal, 2013]

Court Shorts!

(Very brief case summaries, most recent first.)

Agency Workers

The right to be informed of vacancies does not then give any preferential treatment to an Agency worker – when applying for a post he already held. Coles v Ministry of Defence EAT 2015

Associative Disability Discrimination

An employee was dismissed shortly after informing his employer that he would need to take a greater role in caring for a disabled daughter. Lacked the service to claim unfair dismissal but was successful in claiming direct disability discrimination by association. (Truman v Bibby Distribution Liverpool ET 2015)

Zero hours worker wins harassment claim

A young lady with mental health problems has won £19,500 for injury to feelings following her complaint of sex related harassment. She felt that if she complained about the managers behaviour she would not be given further shifts as she was on a zero hours contract. The high award reflects her vulnerable situation, the abuse of power by a manager and the employers failure to investigate properly. (Southern v Britannia Hotels Leeds ET)

Health and Safety requirement not discriminatory

A health and safety requirement that clothing does not represent a trip hazard was not discriminatory on the ground of religion. A potential nursery worker was spoken to at interview about the need for her jilbab (clothing) to be off the ground slightly and decided not to take the position before claiming discrimination. The EAT agreed with the Tribunal that the Employer had not unfairly discriminated against her.

(Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery. EAT 2015)

Deductions from wages after striking

A teacher went on one day of strike action (not Jeremy Clarkson style striking then!). The employer then made a deduction from pay and there was a dispute about the amount withheld. The Court of Appeal has decided that the employer was entitled to withhold 1/260th of pay rather than 1/365th of pay as suggested by the teacher. ( Hartley v King Edward VI College. CA 2015)

Bus Driver who Tested Positive for Cocaine was Unfairly Dismissed

A bus driver who tested positive for cocaine was unfairly dismissed and has been awarded £84,000 by the Employment Tribunal – Bailes v First Bristol Ltd 20/05/2015. The investigation by the company was not thorough enough given the drivers 22 years unblemished record and the possibility of the cocaine being ingested after handling contaminated bank notes

2014 Discrimination Case Round Up

Whilst the number of claims has dropped rapidly due to the introduction of fees and compulsory ACAS intervention – there is no room for complacency in dealing with employees fairly.
Some notable decisions in 2014 included:

• £121,863 for NHS worker with disability
• £363,179, sex discrimination case at BAE Systems
• £126,348 disability case at RBS.
• £209,188 Race claim by a Sikh Police Officer
• £238,216, unfair dismissal and disability case Monmouthshire Council
• £254,611 Whistleblowing at Accountancy firm
• £557,039, Sex Discrimination claim by RAF nurse

Associative Disability Discrimination

In Hainsworth v Ministry of Defence CA 2015 the Court of Appeal confirms that there is no duty on an Employer to make reasonable adjustments in respect of a non disabled employee to enable the employee to cope with the needs of her disabled daughter.
In a similar case (Coleman v Attridge Law), the employee was subjected to direct discrimination connected to her child’s disability

Appeals

Where possible, Employers need to provide a different Manager to deal with any Appeals (discipline or grievance). Mr. Blackburn raised a grievance with Aldi regarding various matters including health and safety and his treatment by his manager. The grievance was dealt with by the regional director and partly upheld. Blackburn appealed to the next level – to the group director. However the appeal was again dealt with by the same regional manager in a meeting lasting just 20 minutes. Blackburn resigned and claimed constructive dismissal. The EAT referred to Aldi’s own procedures and the ACAS Code of Practice on Discipline, pointing out that “appeals should be dealt with impartially and wherever possible by a manager not previously involved in the case…”. Not surprisingly the Court said that an organisation the size of Aldi should have been able to make this provision. Blackburn v Aldi Stores EAT 2013