Section Three

[newsletter-pulldown]

Case Law Update – Significant decisions from the Courts

This section includes important cases on:

• 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.
• Nuisance claimant banned from making claims!
• Illegal working
• The use of covert recordings
• Disability, redundancy and reasonable adjustments.
• Reference and Data Protection clash
• Constructive Dismissal
• Dismissal – post natal depression
• Holiday pay and commission payments
• Secondary Industrial Action
• Age discrimination in police force
• Use of Occupational Health reports

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

Case Summaries

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.

The European court has produced a legal opinion on the meaning of ‘establishment’ for collective redundancy purposes in the “Woolworths” case. This is an Opinion only and the “full” decision is expected later this year.

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 opinion.

When it came to the meaning of ‘establishment’, the opinion says that ‘establishment’ is the local employment unit to which the redundant workers were assigned to carry out their duties. It goes on to say that it is for national courts to decide how the local employment unit should be defined as this will turn on the facts of each case. However, the AG added that it is also up to member states to decide if they want to provide a greater level of protection, and that any such changes made had to be more favourable to all workers.

Comment

The AG 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.

However, employers should note that the AG’s opinion is not binding on the European court, whose decision is expected later this year. Hopefully that decision will provide certainty for employers over whether they should be aggregating the number of redundant employees across their different establishments when deciding whether they are under a duty to inform and collectively consult.

[Case; Woolworths v WW Realisation. AG 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]

Nuisance claims

The Employment Tribunals Act 1996 enables the Attorney General or Lord Advocate to apply to the EAT for a restriction of proceedings order against a serial vexatious litigant, to prevent him or her making further claims.

An application can be made if a person habitually, persistently and without any reasonable grounds institutes vexatious proceedings (whether or not against the same or different respondents), or makes vexatious applications in proceedings to the tribunal or EAT.

Mr Iteshi had brought a grand total of 30 employment tribunal claims and numerous applications within those claims between 2007 and 2011, none of which were successful. The claims arose from a series of unsuccessful job applications by Mr Iteshi.

Four of the claims were against his own employers, with the remainder against recruitment companies in respect of positions for which he did not have the necessary qualifications. All claims involved direct and indirect race discrimination, most involved sex discrimination and many involved victimisation.

On all occasions, the claims were dismissed or struck out on the grounds that they were either vexatious or had no prospect of success. Costs were awarded against Mr Iteshi in a number of instances.

The EAT estimated that over the course of the 30 claims, the various respondents had incurred legal fees amounting to a six-figure sum.

The EAT made an order preventing Mr Iteshi from bringing any further claims for an indefinite period.

An individual who has conducted unreasonable and vexatious litigation, but who then stops and undertakes not to do so in the future, can avoid a restriction of proceedings order. Mr Iteshi sought to rely on this, but the EAT took the view that there was a realistic possibility that he would bring further vexatious or hopeless claims in the future, given that he did not accept that any of his 30 claims had been unreasonable or vexatious and dismissed the EAT as “crooked individuals hiding behind judicial immunity and their evil cloak of infallibility”.

[Case; Her Majesty’s Attorney General v Iteshi EAT/0435/13]

Illegal working.

If an employee works under an illegal contract of employment, he or she will usually be restricted from asserting the rights and protections that such a contract entails. For example, it is well established that such an employee will not usually be able to bring an unfair dismissal claim, since the effect of a successful claim would be to enforce a contract that the law deems never to have existed. This refusal of the courts to give a remedy is commonly referred to as the ‘illegality defence’, since its effect is to relieve the employer of liability under the contract.

Despite this principle however, the Supreme Court has recently held that a domestic worker could proceed with claims of race discrimination related to her treatment while employed, and her eventual dismissal, despite that the fact that she was working illegally. The connection between the illegality and the discriminatory treatment was insufficiently close to bar the claims. Furthermore, in the view of the majority of the Court, there was evidence to suggest that the worker had been trafficked and the public policy against forced labour outweighed the public policy defence of illegality in this case. The Court accordingly restores a tribunal’s finding of discriminatory dismissal, overturning the Court of Appeal in the process.

[Case; Hounga v Allen. Supreme Court 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.]

Disability, redundancy and reasonable adjustments.

Mr. Dominique was disabled and had previously suffered a stroke. As a result, he frequently made mistakes at work and generally struggled with computers.

He was selected for redundancy on the basis of his poor productivity and accuracy; the selection criteria adopted by the Employer.

He brought claims for unfair dismissal and disability discrimination, alleging that his employer had failed to make reasonable adjustments to the selection criteria applied to him.

The EAT decided that the productivity and accuracy criteria placed Mr. Dominique at a substantial disadvantage, and would therefore warrant a ‘reasonable adjustment’ for discrimination to be avoided. A reasonable adjustment would have been to adjust the scores. The employer had not taken this step, and they were therefore liable for discrimination.

Implications for businesses

Although not a departure from previous cases, it is a reminder that disability protection requires the Employer to demonstrate that it has considered making reasonable adjustments. This extends to redundancy scores and Employers should keep an audit trail to show what reasonable adjustments have been made. It can be fair to dismiss a disabled worker for redundancy – but it is important to show that reasonable adjustments were made, and that the person still fell into the dismissal category despite the adjustments to their score. This case really does highlight the fact that an employer should give full consideration to all reasonable adjustments to ensure that its redundancy process is not discriminatory.

[Case; Dominique v Toll Global Forwarding Limited EAT 2014]

Reference and Data Protection.

Employers should play it safe when asked about a former employee’s job history

The case concerned a senior police officer who had served for over 24 years. Before leaving the force, disciplinary proceedings were instigated against him. By this point in time, the police had adopted the practice of providing standard references for employees who left the force.

After a period of long-term sickness absence (and just before the disciplinary hearing took place), AB resigned from the police to take up a job with a regulatory body. In its reference request, the regulatory body asked for details of AB’s sickness absence and disciplinary history. In accordance with its policy, the police force’s HR department issued AB with a standard, factual reference.

On learning that only a factual reference had been supplied to AB’s new employer, the deputy chief constable of the police force in question decided to send a further reference, which included information about the disciplinary hearing and sickness absence. Before sending it to AB’s new employer, this second reference was sent to AB who, unsurprisingly, objected to this information being passed on to his new employer.

AB served the police with a notice under section 10 of the Data Protection Act 1998 stating that it would be unlawful for the police to send out the second reference because the information in it constituted sensitive personal data. He also instigated public and private law claims against the police.

High Court

The police argued that it had both private and public law duties to inform the regulatory body about AB’s employment history, and felt it had a positive duty to correct the misleading information already given in the first reference.

The High Court found that while the first reference was inadequate, the duty of care imposed on the police did not require a further reference to be provided. The court decided that although the police force does have a public duty to act honestly and with integrity, that was effectively trumped by its data protection duties and its specific duty to AB, who had been led to believe that a standard reference would be provided.

Comment

Although this case involved a public body subject to more stringent public law duties than most employers, it does provide some useful pointers for employers giving references. Employers should remember that:

• if an organisation decides to provide a reference, it has to exercise reasonable care and skill to ensure that the reference is true, accurate, fair and not misleading
• organisations providing references owe a duty of care to both the recipient and the person who is the subject matter of the reference
• references are likely to constitute personal information and potentially sensitive personal information if, for example, they contain details about sickness absence, so organisations must ensure they are complying with the data protection principles
• if organisations promise a reference as part of a settlement agreement, it is sensible to include a provision that allows the employer to refuse to provide a reference if it finds out information after the settlement has been concluded which changes its opinion of the employee.

If in doubt, remember, employers do not have to give a reference at all, unless operating in a Regulated industry such as Financial Services.

[Case; AB v A Chief Constable. High Court 2014]

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]

Holiday Pay and Commission

Does the Working Time Directive require that holiday pay should include commission payments that are part of remuneration?

Yes, held the European Court of Justice (ECJ), this recently decided case.

Mr Lock was a salesman on a basic salary with variable commission paid in arrears. Mr Lock’s commission depended not on the time worked, but the outcome of that work, i.e. sales achieved. Mr Lock could not earn commission whilst on leave, and therefore would lose income by taking it. He brought a claim in the Leicester employment tribunal for his ‘lost’ holiday pay after taking leave in December 2011 to January 2012.

The employment tribunal made a reference to the ECJ to ask, broadly, if in calculating holiday pay, Member States must take measures to ensure that a worker taking leave is paid by reference to commission payments that the worker would have earned if at work, and, if so, how to work out that holiday pay.

The ECJ answered ‘yes’ to the first question, but left the calculation as a matter for the national courts to decide. This decision appears to be in line with the spirit of the Directive – to ensure that workers take paid leave and are not deterred by loss of pay during their leave.

The case reaffirms the principle that where a worker’s pay consists of a basic salary and variable elements directly linked to work, then holiday pay should be paid on the basis that a worker receives pay comparable to normal pay whilst on holiday.

Employers should review their leave arrangements to ensure that commission or other relevant variable payments are factored into holiday pay due under the Directive

[Case; British Gas v Lock ECJ 2014]

Secondary Industrial Action

In what will come as a blow to trade unions, but is likely to be welcomed by employers with a unionised workforce, the European Court of Human Rights rejected (May 2014) the argument that the ban on secondary action represents an unlawful restriction on the rights of Trade Unions.

The Court held that in what it termed a ‘legislative policy area of recognised sensitivity’, a state’s room for manoeuvre was wide enough to encompass the UK’s existing ban on secondary action.

The continuation of the ban on secondary action will particularly affect unions with members who have been subject to outsourcing. The RMT’s complaint focused on a situation where, two years after a TUPE transfer, the transferee sought to impose reduced terms and conditions. The union had wished to call out its members at the transferor company in solidarity with those at the transferee, but the law prevented it from doing so.

[Case; National Union of Rail, Maritime and Transport Workers v United Kingdom ECJ 2014]

Age discrimination in police forces.

Because Police Officers are not “employees” they cannot be dismissed or made redundant as ordinary employees can. A number of Police Forces, facing the need to cut costs, invoked a regulation allowing the force to require a police officer at or below Chief Superintendent level to retire. The officer must have served 30 years and be entitled to minimum levels of pension too. The Forces took legal advice which apparently suggested that although this practice would be indirect age discrimination, it could be justified. In a recent test case, involving a number of forces, a Tribunal has said that the practice was not justified. The main stumbling block appears to be that the Police employers did not seriously consider alternatives – invoking the rule across a number of Forces in very similar ways. To defend claims like this, employers need to demonstrate that the practice was a proportionate response to a legitimate aim. The Tribunal saw little or no evidence of other options being considered, such as career breaks or more part time working to achieve savings. The Court also looked at evidence from other Forces who did not implement this regulation and apparently achieved similar savings through other means.

This is a costly blow to those Forces who adopted this measure. It also serves as a reminder to all Employers that forced early retirement, whilst possible, needs to be carefully justified.

[Case; Harrod and others v Chief Constable WM Police and others ET 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.)

2014 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

Sick pay and Constructive dismissal

Does claiming sick pay reaffirm the employees’ contract and undermine a claim of constructive dismissal? Possibly said the EAT!! When linked to a number of other factors such as accessing work e mails and Intranet whilst off sick and attending meetings at the Employers premises – was sufficient to indicate the contract was still in force so the claim for constructive dismissal failed as it was too long after any breach by the Employer.

(Mari v Reuters EAT)

Bonus scheme caused disability discrimination

In Land Registry v Houghton, the EAT has upheld a tribunal’s decision that a bonus scheme that excluded those who had received a formal warning in respect of sickness absence during the relevant financial year occasioned discrimination arising from disability under the Equality Act 2010. The rule clearly gave rise to unfavourable treatment in consequence of disability, given that the exclusion was automatic even for disability-related absences, and it could not be objectively justified because, among other things, managers had no discretion under the scheme, and there was no acknowledgement that absence had improved in some cases.

Work experience discrimination.

The EAT has held that where a student on work experience complains that they have been discriminated against whilst they are on that placement, the action falls within the educational, rather than the employment parts of the Equality Act 2010. This means that this sort of action should be started in the County Court rather than an employment tribunal. Blackwood v Birmingham and Solihull Mental Health Trust NHS Foundation

E- cigarettes

In one of the first reported cases involving e-cigarettes, a woman has lost her complaint of Constructive Dismissal.

The head teacher of the secondary school where the catering assistant, Ms Insley, was working complained to her employer, Accent Catering, that he had seen her using an e-cigarette at the beginning of the school day in full view of pupils.

Ms Insley resigned just before a disciplinary hearing was arranged by her employer to decide if her actions were serious enough to justify dismissal. The tribunal dismissed her claim of constructive dismissal, holding that the employer had acted properly.

Employers need to ensure that their smoking policies are clear on the use of such devices. Insley v Accent Catering ET 2015.

Constructive Dismissal

Law worked for a small accountancy business. While her performance was considered good in 2011, her employer thought that it had declined over the course of 2012. It was felt that she had become careless and had made a number of uncharacteristic mistakes. Her managers were also concerned that her conversation had on occasion seemed incoherent and rambling. The principal of the firm, decided to discuss L’s behaviour and performance with her son. He did this out of genuine concern for Law, who was 62 years old, but without discussing the matter with her first or taking any formal step to address her performance issues directly.

When L found out about the conversation with her son, she was horrified and resigned, claiming unfair constructive dismissal. An employment tribunal upheld her claim, finding that the conversation had been a clear breach of the implied contractual term of mutual trust and confidence. The EAT agreed. Frith Accountants v Law EAT 2014.

Caste Discrimination

Proposals have been discussed to outlaw caste based discrimination by an amendment to the Equality Act. This may not now be necessary.

Is caste already protected under the Equality Act? Sometimes, held the EAT – but only where caste is part of a protected characteristic, usually ethnic origin.

Ms Tirkey was a migrant worker from India employed by Mr and Mrs Chandhok as a nanny. She alleged that she had been mistreated by them, in part, because she was from a lower caste.

Mr and Mrs Chandhok argued that this aspect of her claim should be struck out because caste was not a protected characteristic under the Equality Act.

The EAT, upholding the employment tribunal’s decision, disagreed. Caste is not a freestanding protected characteristic. But elements of caste identity may form part of an individual’s ethnic origin, particularly where caste is determined by descent or contains an identifiable ethnic identity. Therefore caste discrimination may be protected as a form of race discrimination. Chandhok v Tirkey. EAT 2015

Fixed Term Contract Discrimination

Xerox UK’s decision not to provide a man on a fixed term contract  the same income replacement cover as permanent employees was justified said the EAT. The insurer involved refused to pay those on FTC and the contract made it clear that the Employer was subject to the terms of the insurance policy. Hall v Xerox  UK EAT 2014.

Working time.

Attendance at Union meetings in the day, for nightshift workers, was not working time under the WTR. The employer gave time off the night shift either before or after the union meetings. The employer paid the employees for attending the meetings. There was no breach of the right to have an 11 hour uninterrupted break from work. Edwards v Encirc Ltd. ET 2014

Constructive Dismissal

An Employee gave notice to his Employer, and then claimed constructive dismissal. He gave, and worked, more than twice the notice that his contract required. The Tribunal said that by working longer than he was required to do under his contract, he had undermined his complaint of constructive dismissal. Cockram v Air Products EAT.

Ageist remark (again!)

Yet another example of a one off age related remark that landed the Employer in trouble. Mr. Clements worked for Lloyds Banking. During a performance related discussion his Manager commented “you are not 25 anymore”. He resigned later, following further issues. The Tribunal agreed that the remark was discriminatory as it was a reference to his age.

Minimum Wage and sleepover

On the facts of this case, a care worker was entitled to the minimum wage whilst working a “sleep in” shift. The Employer was legally required to have a competent person on site overnight and the carer was required to check residents every 40 minutes.  On those facts, the £25 allowance paid was insufficient as the NMW did apply to each hour worked. . Middle West Care Home v Slavikowska. EAT

Domestic altercation and dismissal

A fairly minor domestic altercation between two employees who were in a relationship outside work was not grounds for dismissal. Employers need to be wary of over reacting to incidents outside work. The Court said that… “it was difficult to see how an employee pushing another employee onto a sofa during a domestic argument could reflect on the employer-employee relationship”. CJD v Royal Bank of Scotland. Court of Session 2014.

Data Protection.

A forensic scientist working with mental health patients at Broadmoor Hospital was suspended from work on grounds of possible gross misconduct. The alleged offences stem in part from breaching patient confidentiality. A member of the public complained to the NHS Trust that the Consultant had discussed her work in such a way that her place of work, as well as individual patients could be identified. All of this occurred whilst travelling on a train.

Further investigation by the Trust has identified that the Consultant would also dictate notes to secretarial staff whilst on the train; again these dictated reports contained sensitive patient information. This could result in dismissal, although a final decision has not yet been made.

Ensure you take your Data Protection responsibilities seriously, and more importantly, your staff do to!

TUPE.

An Employment Tribunal found no reason in law why an incoming Employer could not discipline an Employee for an act of misconduct that occurred just prior to the completion of a business transfer of a pub to new owners. Balcombe v The Lane End Public House.

Data Protection.

Not an employment case (very few are). The Information Commissioner has fined a local authority £80,000 for a serious breach of security. Sensitive information about special needs children wasleft unencrypted on a memory stick which went missing.

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