Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.
Failure to make reasonable adjustments
The employment tribunal has found a disabled manager was treated ‘unfavourably’ by her employer after facing disciplinary action for asking staff to stop hot-desking at her specially-adapted workstation.
Ms Baker was employed as a collections manager at the Palace of Westminster. She had a modified workstation, including an orthopaedic swivel chair to help with musculoskeletal pain.
Between June and September 2018, managers allowed other staff to use her workstation while she was away for short periods due to overcrowding in the office.
In her tribunal claim, Ms Baker stated that she would have to readjust the workspace and chair after each time it was used by someone else. An occupational health report also recommended Ms Baker’s desk “not be used as a hot desk” as she “needs to have her own dedicated workstation”.
Because of this, she left a polite note asking staff not to use her workstation while she was out of the office.
In response, her management started disciplinary proceedings against Ms Baker on the basis that her request was “unreasonable”.
The allegation was later removed in a revised invitation, the tribunal was told.
Ms Baker again went on sick leave in October, citing workplace stress, and brought her tribunal claims in January 2019.
The tribunal has now ruled Ms Baker had been treated unfavourably, stating “Ms Baker would have been put at a substantial disadvantage by the House of Commons Commission’s practice of allowing hot-desking on all desks. Her workstation and equipment had been adapted for her needs, to prevent injury and discomfort”.
Ms Baker’s claims of failure to make reasonable adjustments also succeeded.
Her other claims of sex and disability discrimination and victimisation were dismissed.
A further hearing to decide upon compensation will be held in due course.
Harassment
Ali v Heathrow Express and Redline Assured Security Ltd
In Ali v Heathrow Express, the EAT held that the claimant’s perception that conduct constituted harassment was not sufficient.
Mr Ali was a security guard at Heathrow Airport. Redline Assured Security Ltd was responsible for carrying out security checks at the airport and the Heathrow Express stations.
As part of its standard procedures, Redline would ‘plant’ suspicious objects to check security staff’s response.
In August 2017, one such test incident was set up, with a bag that contained a box, electrical cables and a note saying “Allahu Akbar” in Arabic.
An email was subsequently sent to a group of employees, including Mr Ali, reporting on the results of the test and sharing images of the bag and and the note.
Mr Ali complained that the conduct amounted to either direct discrimination or harassment by reference to his religion, as defined in the Equality Act 2010.
At first instance, the tribunal found against the claimant, deciding that the conduct amounted neither to direct discrimination nor to harassment as defined by s26 Equality Act 2010. On the facts, the phrase on the note had been used in the context of recent incidents, and was not being used to ‘associate Islam with terrorism’.
Mr Ali appealed on the basis that the tribunal’s decision was either perverse or insufficiently reasoned.
The EAT also dismissed the appeal on both grounds, finding that the claimant’s perception is just one of the matters for the tribunal to take into account when considering if conduct amounted to harassment as defined by s26 Equality Act 2010.
Constructive dismissal
Craig v Abellio
Mr Craig had been employed by Abellio as a bus driver since 2014. He complained of a number of issues relating to pay and working hours.
Following a period of sick leave, Mr Craig alleged Abellio paid him the incorrect level of sick pay and failed to resolve his complaints.
He brought an internal grievance and subsequent appeal which resulted in an agreement that the employer would pay over £6,000 in back pay by a specified date. Abellio failed to pay this, leading to Mr Craig resigning in July 2019 as the “last straw” in a pattern of treatment of him.
Mr Craig brought a claim for constructive dismissal.
The employment tribunal held that the employer had addressed the pay dispute by agreeing to pay the outstanding backpay, and that failing to pay Mr Craig on time was merely a mistake and did not constitute either a repudiatory breach itself or ‘a last straw’, as required to justify a constructive dismissal claim.
Mr Craig appealed the decision.
On appeal, the EAT found that the first tier tribunal had failed in a number of areas, including failing to correctly apply the legal principles relating to “last straw” constructive dismissal; failing to engage with the claimant’s factual case; and failing to make findings on a number of other complaints raised by the claimant.
The constructive dismissal claim was remitted to a new Employment Tribunal.
Sexual harassment
Ms F Fricker v Gartner UK Ltd
Ms Fricker had been employed as a sales executive at Gartner UK since September 2017.
In November and December 2017 her line manager, Mr Ajroldi, started to message Ms Fricker frequently via WhatsApp, asking her to take a “better picture” for her LinkedIn profile and the company intranet.
He commented in one mesasge that the image she provided was a “beautiful picture”, adding: “You are beautiful! For once trust your manager”.
On 5 February 2018, Ms Fricker agreed by text to carry out a task, and Mr Ajroldi responded saying “Good girl!”. Ms Frickers replied: “I’m an independent woman for goodness’ sake!! ;)”.
He continued to refer to Ms Fricker as a “good girl” over WhatsApp throughout February and telling her he loved her with a kissing face emoji.
The tribunal also heard that in August 2018, Ms Fricker had an overnight stay for work and Mr Ajroldi “insisted” on accompanying her. The tribunal accepted Ms Fricker’s evidence that on 7 August Mr Ajroldi made sexual advances towards her in her hotel room, which she rebuffed. Later that night Mr Ajroldi apologised for his behaviour by text.
Mr Ajroldi’s behaviour towards Ms Friker then changed to what she described as “defensive and very aggressive”.
On 24 September, Ajroldi told Fricker he was implementing a performance improvement plan which Ms Fricker said came “completely out of the blue” and when she questioned this, Ajroldi’s attitude towards her “deteriorated further”. The plan was brought to an end on 29 October following “significant improvement” in her performance and Ms Fricker raised a grievance which was found by the tribunal not to have been handled in a prompt or proper manner.
Following a grievance appeal and disciplinary proceedings, Ms Fricker went off on certified sick leave, during which time Mr Ajroldi left the company on good terms following a settlement. On her return in April 2019, Ms Fricker claims she was further harassed by other male colleagues, for which she brought further complaints.
She resigned on 15 October 2019, citing sexual harassment, continued bullying and victimisation and forcing her to “work in a hostile environment” alongside other reasons.
Ms Fricker brought a claim for sexual harassment and unfair dismissal.
The tribunal found that her manager had ‘took revenge’ by souring relationships with other colleagues and that she was treated less favourably as a result of her rejecting the harassment.
The tribunal also found the company’s approach to Ms Fricker’s disclosure was ‘primitive’ and the HR representative had made a “deliberate attempt to mislead the tribunal so that the respondent can evade liability for Mr Ajroldi’s sexual harassment of the claimant” by attempting to “cover up Mr Ajroldi’s sexually harassing behaviour.”
The tribunal also made comment on the nature of the conduct in question, namely that although several Gartner employees had testified that Ajroldi’s behaviour was “banter”, this was not the case and changes in language and meaning must be considered.
Further claims of victimisation and discrimination were not upheld.
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Last updated: 27 April 2022
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals