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Employment Case Law Update September 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.

 

Furlough & unfair redundancy dismissal

Mhindurwa v Lovingangels Care

The employee was a live-in care assistant for a sole elderly client. During the first lockdown in 2020, the client moved to live in a care home. Since this had been her only client and since thr pandemic had reduced the demand for live-in care work generally, this left no ongoing work for the employee to do for her employer and she was made redundant. She asked to be furloughed instead of being made redundant, but her request was refused since there was no work for her. Her employment was then terminated due to redundancy.

She brought a claim for unfair dismissal against her former employer.

The Employment Tribunal found in favour of the employee and held that this was an unfair dismissal since her employer had failed to consider furlough as an alternative to redundancy. The purpose of the furlough scheme was to avoid redundancies resulting from the pandemic and a reasonable employer would have considered furlough as an alternative to dismissal on the grounds of redundancy.
Importantly, it was not that the claimant should have been furloughed, only that this should have been considered by the employer as an alternative to redundancy.
At the time, while there was no work at the point of dismissal, this may have changed and the employer could have availed of the job retention scheme and furloughed the claimant to see if the situation did change.

When assessing complaints of furlough as an alternative to redundancy, each case will turn on its own facts and circumstances, such as the employers’ financial position at the time of the dismissal and the uncertainties at that time surrounding the furlough scheme and the pandemic generally.

Employer takeaways

Where employees have been dismissed by redundancy, and they have at least two years’ continuous service with you, they have only three months from the date of termination to bring a claim for unfair dismissal. They must also notify ACAS of their intention through the Early Conciliation service.

 

Workplace stress liability

Mackenzie v AA plc

This case examined the question of employer liability resulting from workplace stress.

The employee was the CEO and executive chairman of the company he worked for. He was dismissed after he got drunk and assaulted a colleague at a company ‘away day’. In his defence, he claimed that his actions were because of a psychiatric illness resulting from workplace stress. He brought a claim for personal injury against his employer, alleging his employer was aware of that he was under such stress but had failed to take proper care of his health and safety.

His claim was dismissed on the grounds he could not establish that his employer knew, or ought to have known, that any stress he was under would cause a psychiatric illness.

Employer takeaways

The case provides helpful guidelines for employers if an employee is ill due to stress at work and in relation to thresholds for liability for stress at work.

Employees are required to show that they faced a real risk of injury resulting from the stress; this goes beyond having too much work to do or being under excessive stress.

Employers can presume that an employee is coping with stress unless there is evidence to the contrary. There is no obligation on the employer to make searching or intrusive enquiries and can accept at face value what an employee tells them.

Employers only have to act when the signs are such that a reasonable employer should realise that it needs to take action.

If an employee does show signs of workplace stress, make reasonable investigations and talk to the employee and ask if there is anything you can do to help. If an employee tells you that they are OK, you can accept this.

 

Constructive dismissal

Simplico v Alfona Limited

Employees with more than two years’ continuous service may be able to bring a claim for constructive dismissal if they resign as a result of the employer’s breach of contract.

In Simplico v Alfona Limited, the employee resigned citing a number of breaches of contract by his employer. The allegations included his manager often burping in his face, breaking wind loudly in front of him, one instance of shouting at him and a number of instances of the employee being underpaid.

The tribunal made distinctions as to which of the behaviours complained of did constitute a breach of the employment contract. While the shouting and underpayment counted as breaches, the burping and breaking wind was deemed inappropriate behaviour but not sufficient to be a breach of contract.

Employer takeaways

Employers are reminded that certain behaviours and conduct are unlawful and unacceptable, such as underpaying workers and shouting at them. These are classed as a breach of contract.

 

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: 28 Sepember 2021

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