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Employment Case Law Update August 2020

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A number of key employment law cases of significance for employers have recently been decided.

 

Unfair dismissal

Phoenix Academy Trust v Kilroy

The claimant was a teacher who was dismissed from his role following disciplinary proceedings.

The claimant appealed the disciplinary decision. The decision was subsequently overturned and he was reinstated, subject to a final written warning.

The claimant refused to return to work, stating it was “unrealistic” to expect he should resume his role in light of how he had been treated. He then brought a claim for constructive unfair dismissal.

His claim was upheld by the Employment Tribunal, who agreed that the claimant had not affirmed his contract by lodging his appeal.

The claimant’s former employer appealed the tribunal’s decision on the basis that, by making use of the internal appeal process, he had affirmed his contract of employment, removing any right to claim for constructive unfair dismissal.

The EAT held that, regardless of whether the employee invoked their right to appeal to clear their name and with no intention of resuming their role, by law, an overturned disciplinary decision has the effect of erasing the original dismissal, as if it had never occurred. Consequently, claims may no longer be brought in relation to said dismissal.

Where the employee remains unhappy with the outcome, their only option to pursue a claim would be to resign and claim unfair dismissal, although this potentially raises issues between earlier Court of Appeal authorities such as Patel v Folkestone Nursing Home and Kaur v Leeds Teaching Hospitals NHS Trust.

 

Employment status

Varnish v British Cycling Federation (t/a British Cycling)

In Varnish v British Cycling Federation (t/a British Cycling), the Employment Appeal Tribunal has upheld the first tribunal decision that a professional cyclist is neither an employee nor a worker.

As discussed in our previous summary, the case provides a useful discussion on case law relating to mutuality of obligation, however it also remains a fact-based decision, which could have been decided in the alternative on a different set of facts.

 

Dismissal relying on anonymous witness

Tai Tarian Ltd v Christie

The EAT has held that it was within the range of reasonable responses to dismiss someone relying on evidence from an anonymous witness.

The claimant, Mr Christie, was a carpenter who had been employed by Tai Tarian Ltd for 14 years with no disciplinary incidents on his record.

Tai Tarian received a complaint from a tenant that Mr Christie had made homophobic comments. The tenant was interviewed by two different, non-decision making managers. He asked to remain anonymous.

Mr Christie was subsequently dismissed for gross misconduct, and then brought an unfair dismissal claim.

The tribunal decided in favour of the claimant, finding it was not within the band of reasonable responses to dismiss Mr Christie. The tribunal held there had not been a fair disciplinary hearing, the decision-making manager had accepted the tenant’s word without interviewing the tenant himself and had not considered reasons why the tenant’s account might have been embellished.

The tribunal also took in account the claimant’s positive character references, finding it unlikely that Mr Christie had made the alleged comment and unreasonable for the manager to have accepted the tenant’s version of events over that of Mr Christie.

Tai Tarian appealed the tribunal’s decision.

The EAT’s upheld the appeal, finding the tribunal had failed to conclude on whether Tai Tarian’s decision was within a range of reasonable responses, instead substituting its own view for that of the employers.

Following guidance in Linfood Cash and Carry v Thomson, the EAT sought to determine if there were logical and substantial grounds for the employer to accept the tenant’s word as truthful.

The tenant had been interviewed twice, not invited to the disciplinary hearing and unable to provide evidence at the appeal stage for personal reasons. This was not a clear enough reason to not rely on their statement.

The case was sent back to an entirely fresh Tribunal rehearing.

For employers, the case is a reminder that it is possible in disciplinary proceedings to rely on the evidence of a witness who does not want, for good reasons, to be identified. However, the guidance in Linfood Cash and Carry v Thomson should be followed with care in the case of anonymous witnesses.

 

Discrimination arising from a Disability

Robinson v DWP

The Court of Appeal has held in Robinson v DWP that, when considering s.15 of the Equality Act 2010 (EqA 2010) and discrimination arising from a disability, the key question for the tribunal should be causation, and whether the treatment was ‘because of’ the disability rather than, ‘but for’ the disability.

In effect, the motivation behind the treatment complained of should be considered. This requires more than showing that the claimant would not have experienced unfavourable or less favourable treatment if they did not have a disability.

In Robinson v DWP, the claimant, Ms Robinson, was employed by the DWP as an Administrator. She suffered from blurred vision and migraines, which amounted to a disability.

After the DWP installed a new software package on work computers, her symptoms deteriorated. DWP took some action to try to resolve the issues, but with little success, leading to Ms Robinson suffering from stress and taking time off work due to sickness.

Ms Robinson filed a grievance in respect of the DWP’s slow response to helping adapt her workplace due to her disability. The grievance was upheld. She was moved to a paper-based role, which was intended to be on a temporary basis. Ms Robinson lodged a second grievance requesting an apology and compensation. This was in part successful as she received her apology but no compensation.

Ms Robinson then brought two tribunal claims; discrimination arising from disability under s.15 EqA 2010 and a failure to make reasonable adjustments under s.20 EqA 2010.

At first instance, the Employment Tribunal found that the Claimant had been discriminated against due to something arising from her disability but also found that the respondent had made reasonable adjustments in moving her to a paper-based role.

However, the Court of Appeal held that the detriment suffered by the claimant was not because of her disability and that the Employment Tribunal had wrongfully applied the “but for” test. Any unfavourable treatment suffered by the claimant was because of an attempt to rectify the problem which failed.

It was further held that while Ms Robinson had not been treated well by the DWP, and that her sense of grievance was understandable, this was not sufficient to prove that any treatment was because of something arising in consequence of her disability.

The DWP’s treatment of the claimant was therefore not motivated by the consequences of her disability and the claim could not succeed.

This case highlights the importance of considering reasonable adjustments for employees who may be placed at a disadvantage at work due to disability and to treat all employees consistently.

Employers must also take great care in approaching capability dismissals where the employee is absent, and the reason for the absence is a disability. As well as the risk of an unfair dismissal, the dismissal will amount to discrimination because of something (the absence/incapability) arising in consequence of the disability unless it can be shown to be a proportionate means of achieving a legitimate aim. The relevant aims should be clearly identified and balanced against the discriminatory effect of the dismissal on the individual when deciding whether there is a justification defence. The duty to make reasonable adjustments must also be complied with – if not, it will be far more difficult to justify the dismissal.

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If you have a question about employment case law and the impact of tribunal and court decisions on your business, DavidsonMorris’ experienced employment lawyers can help. Working closely with our specialist human resource colleagues, we offer a holistic advisory and support service for employers encompassing both the legal and people risks of workforce management. Speak to our experts today for advice.

Last updated: 25 August 2020

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