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Employment Case Law Update November 2021

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Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.

 

Wrongful dismissal

Hovis Limited v Louton

The claimant, Mr Louton, worked for Hovis as a delivery lorry driver. It was reported by one of the company’s managers (Mr Sittre) that he and his wife had seen Mr Louton smoking at the wheel of his lorry while driving on the motorway.

An internal disciplinary procedure was launched which agreed with the allegations that Mr Louton had been smoking whilst driving. As this was a serious breach of the respondent’s procedures he was dismissed without notice for gross misconduct.

Mr Louton then brought a claim for wrongful dismissal.

At the tribunal, Mr Louton gave evidence in person that he had not been smoking at the wheel. Mr Sittre and Mrs Sittre did not give evidence to the tribunal, and their testimonies were admitted as hearsay.

While the tribunal found Mr Louton’s dismissal was fair in light of the evidence that had been taken into account, the judge upheld the wrongful dismissal claim on the basis that the tribunal could not make a finding of fact the claimant was smoking. This was because the tribunal had heard evidence directly from the claimant but did not hear evidence directly from the witnesses of the alleged act of gross misconduct. This was despite the tribunal having their hearsay statements and other evidence to support Hovis’ case.

The case then came before the Employment Appeal Tribunal. The question was whether, when determining wrongful dismissal where the claimant denies the allegations, is the tribunal safe to conclude that it could make no positive finding as to the misconduct without having heard from witnesses who claimed to have seen the alleged conduct?

The EAT held that evidence given in person before the tribunal did not supersede or trump documentary or hearsay evidence and that the tribunal at first instances was wrong not to evaluate the hearsay evidence or the statements from the witnesses that had been considered as part of the disciplinary process.

Employer takeaways

The impact of the EAT’s decision is not to place any greater weight to either hearsay or oral evidence made before the tribunal in wrongful dismissal claims, but it does highlight that tribunal judges can consider such evidence, attributing appropriate weight in the context of all the evidence provided and concluding on a balance of probabilities whether the dismissal was or was not wrongful.

For employers, it is a reminder that defences should ideally lead with first-hand evidence from witnesses to alleged acts of gross misconduct but where this is not possible, hearsay evidence should be put forward for the tribunal to consider as part of its decision making.

 

Disability discrimination

Sullivan v Bury Street Capital Ltd

The claimant, Mr Sullivan, suffered delusions which had caused him to believe he was being tracked by a Russian gang. This, in turn, affected his timekeeping and attendance at work.

At first instance, the tribunal ruled that, although the paranoid delusions did have the required substantial adverse effect, at the time this effect was not anticipated to have an impact on the employee long term, as it was not likely to last for at least 12 months, nor likely to recur.

The EAT agreed with the first tier decision. It also held that the later recurrence of the condition did not undermine the assessment made of the potential for recurrence, which the tribunal must conduct on the conditions prevailing at the time.

The decision was further appealed to the Court of Appeal, which held that Mr Sullivan’s delusions did not qualify as a disability under the Equality Act 2010. This was because, despite acknowledging that the delusions occurred over many years, the delusions only had a substantial adverse effect for two discrete periods lasting months, which did not qualify as long term.

Employer takeaways

The decision highlights the challenge for claimants to establish a disability for the purposes of the Equality Act. Credibility of the claimant is also a determining factor; here, the tribunal heard conflicting medical evidence from both sides, and found it preferred the testimony of the employer’s medical experts and held that the claimant was ‘exaggerating’ his symptoms.

 

Whistleblowing & unfair dismissal

Secure Care UK Limited v Mr R Mott

Mr Mott was employed as a logistics manager by Secure Care Limited, a company contracted to provide transport services for NHS patients.

While employed, he made a series of protected disclosures relating to issues including inadequate staffing at the company. He was advised he was at risk of redundancy the day after making his last disclosure. He was subsequently made redundant, along with two other employees. He brought a claim for unfair dismissal.

The tribunal at first instance found that three of the nine disclosures qualified as protected disclosures and in light of the chronology of events and the communications between the parties, agreed with the claimant that his whistleblowing had materially impacted his selection for redundancy and that he had been unfairly dismissed.

Secure Care appealed the decision.

The EAT disagreed with the first tribunal and found it had erred in two regards. First, the EAT stated that the tribunal applied the wrong causation test. While it should have used the sole or principal reason test required for s103A ERA claims, it had instead applied the ‘materially influences’ test, which only relates to whistleblowing detriments under s47B ERA.

Secondly, when determining the reason for the dismissal, it had failed to distinguish the impact of the three protected disclosures from the impact of all nine of the concerns raised by Mr Mott. The case has been remitted to the tribunal.

Employer takeaways

The EAT has provided a useful reminder of the correct test to be applied in automatic dismissal claims relating to protected disclosures, namely that the protected disclosure must be the sole or principal reason for dismissal.

 

Mandatory vaccinations for health & social care sector workers

From 1 April 2022, COVID 19 vaccinations are to become mandatory for workers in the health and social care sectors whose roles involve face to face contact with service users and patients, unless an exemption applies.

The changes were announced by the Department of Health and Social Care on 9 November 2021 following public consultation.

The regulations mean providers of CQC regulated activities in the health and social care sector must only employ individuals who have been fully vaccinated against COVID-19 for jobs which have direct contact with patients and service users. This includes roles involved in patient care, such as doctors, nurses, dentists and domiciliary care workers, and non-clinical staff such as porters and cleaners, receptionists and ward clerks, as well as volunteers and trainees.

Workers will be required to comply with the rules regardless of whether they are employed by the NHS or are contracted by an agency.

The new regulations build on the recent requirement for frontline care home workers in England to be double vaccinated against COVID 19, a regulation which came into force on 11 November 2021.

The changes are set to come into force in the Spring, subject to parliamentary approval. A 12-week grace period will apply to allow workers to have both doses of the vaccine by 1 April 2022, when enforcement is set to begin.

Employer takeaways

The regulations apply only to relevant roles in the health and social care sectors. Employers in other sectors considering implementing mandatory vaccination policies will need to give full consideration to the legal risks of such a policy.

 

Need assistance?

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: 30 November 2021

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