Shoplifting Health Visitor Not Unfairly Treated

A health visitor who lost her job after involuntarily embarking on a violent shop-lifting spree whilst in the grip of a psychiatric disturbance has failed to convince the Employment Appeal Tribunal (EAT) that her employers treated her unfairly.

The woman, who had a blameless 12-year work record, had endured a series of tragic events in her life – including her husband leaving her, a diagnosis of breast cancer and a friend’s death from the same disease. She was suffering from acute depression and bearing a double work load after a colleague went off sick.

After she broke her way out of a supermarket with goods she had not paid for, and drove away with a customer on her bonnet, she admitted theft, battery and dangerous driving. However, she was given a conditional discharge on the basis that her actions had been involuntary and entirely out of character.

As a consequence of her convictions, she was nevertheless summarily dismissed by her NHS trust employers. After she launched proceedings, an Employment Tribunal (ET) rejected her unfair dismissal claim on the basis that she had been convicted of serious criminal offences which were relevant to her employment. Her summary dismissal was within the range of reasonable responses open to the trust.

However, in circumstances where the trust accepted that she was disabled by reason of her mental incapacity, and had rejected her as a candidate when she applied for another post, the ET found that there had been a failure to make reasonable adjustments to cater for her condition.

In upholding the trust’s challenge to that decision, the EAT noted that the ET had made the relevant finding without identifying a single adjustment which would have had the practical effect of keeping the woman in work. The ET had misunderstood the scope of the duty owed by the trust and had erred in law.

Time Off to Accompany a Pregnant Woman to Ante-Natal Appointments

From 1 October 2014, an expectant father or the partner (including a same sex partner) of a pregnant woman will be entitled to take unpaid time off work to accompany the woman to up to two of her ante-natal appointments.

The time off is capped at six and a half hours for each appointment.

An employer is not entitled to ask for any evidence of the ante-natal appointments, such as an appointment card, as this is the property of the expectant mother attending the appointment. However, an employer is entitled to ask the employee for a declaration stating the date and time of the appointment, that the employee qualifies for the unpaid time off through his or her relationship with the mother or child, and that the time off is for the purpose of attending an ante-natal appointment with the expectant mother that has been made on the advice of a registered medical practitioner, nurse or midwife.

The Department for Business, Innovation and Skills has produced guidance for employers on the new right in the form of frequently asked questions. This can be found here.

Undermined Estate Agent Unfairly Dismissed

A senior estate agent, who was moved from a lucrative area manager’s post to take charge of a number of unprofitable ‘graveyard’ offices, has succeeded in an unfair dismissal claim – but will not receive as much compensation as he had hoped for.

The man’s income was directly linked to the profitability of the branches he managed and his move had led to a reduction in bonuses due to him. However, as he was ‘an honourable and trusting man’, he had relied upon his boss’s promise that he would not lose out financially in the end.

However, that promise was not kept, nor were assurances relating to his healthcare and pension benefits. The man was subsequently moved again to a more junior role as manager of two branches. He felt so undermined and unsupported by his boss that he ultimately resigned, considering his position untenable.

In ruling that he had been constructively dismissed unfairly, an Employment Tribunal (ET) found that his boss had fundamentally breached the implied term of trust and confidence in a way that went to the root of the employment relationship.

The ET assessed the man’s compensation on the basis of the higher earnings he had enjoyed in his original role as area manager of a number of successful branches. It also awarded him damages for breach of contract.

However, in allowing the employer’s appeal, the Employment Appeal Tribunal (EAT) found that the ET had no power to make an award of damages for breach of contract when the man had neither raised nor pursued such a claim.

Noting that he had been moved from the area manager’s role more than four months before his resignation, the EAT also found that the man’s compensation ought to have been based on the lower salary he was earning at the time of his departure. The case was sent back to the ET for the man’s award to be reassessed.

Sacked Banker Wins £66,000 from Negligent Solicitors

A former banker whose tortuous brush with employment law earned him a damages award which failed even to cover his legal costs has won at least some recompense from a negligent law firm which admitted having let him down.

The man was purportedly made redundant following a grievance process and a long debate as to how he was to be deployed after he suffered spinal injuries during a work skiing trip. His claim for unlawful direct disability discrimination and unfair dismissal was initially successful and he was awarded more than £500,000.

However, his claims of unlawful direct and indirect age discrimination failed and the disability discrimination findings were subsequently overturned on appeal. He was ultimately left with an award of £68,000 for unfair dismissal and a costs bill that exceeded that sum.

The law firm which advised him admitted that it had been negligent in failing to lodge a cross-appeal in respect of age discrimination issues with the Employment Appeal Tribunal within the time permitted. As a result he had lost the opportunity to pursue the cross-appeal, which stood more than a negligible chance of success.

The High Court found that, but for the firm’s negligence, there would have been an 18 per cent chance of his age discrimination claims succeeding. On that basis, he was awarded £66,163 in damages, including interest. However, the Court rejected further arguments that the law firm had also been negligent in failing to advise on or explore the possibility of a claim based on a failure to make reasonable adjustments under the Disability Discrimination Act 1995.

Case Underlines Tax Pitfalls of Leaving Employment

HMRC2In an important case which illustrates the financial pitfalls of leaving employment, a senior worker who received £200,000 in settlement of age discrimination and unfair dismissal claims has been landed with an unwelcome income tax bill.

The man, aged in his 60s, was a long-serving executive director of an engineering company but was made redundant from his £111,000-a-year job after failing to achieve promotion to vice-president. He received statutory redundancy pay of £10,640 but subsequently launched proceedings before an Employment Tribunal.

Those proceedings were settled by his former employers for £200,000. The payment was made without any admission of liability and was expressed to be ‘ex gratia’ and ‘by way of compensation for loss of office and employment’. The man nevertheless argued that the money should be viewed as compensation for discrimination and injured feelings and was thus not taxable.

In dismissing his appeal, however, the First-tier Tribunal (FTT) ruled that the entirety of the £200,000 was paid ‘directly or indirectly in consideration or in consequence of, or otherwise in connection with’ his employment.  The link between the payment and the termination of his employment was incontrovertible.

The FTT acknowledged that its ruling ‘may appear harsh’ – particularly because the man would have paid less tax had he not challenged HM Revenue and Customs’ more generous assessment. However, after taking into account the limited exemption that applies to redundancy pay, the FTT found that £180,640 of the sum was taxable under Section 401 of the Income Tax (Earnings and Pensions) Act 2003.

Acas Advice on Workplace Dress Codes

The Advisory, Conciliation and Arbitration Service (Acas) has issued new guidance for employers who wish to impose dress standards in the workplace.

The key points to bear in mind are:

  • Employers should have sound business reasons for applying a particular dress code;
  • Dress codes must apply to both men and women equally, although they may have different requirements;
  • Reasonable adjustments must be made for disabled people when dress codes are in place;
  • Employers must avoid unlawful discrimination in any dress code policy; and
  • There may be health and safety reasons for having certain standards in place.

The guidance can be found here.

Contact us if you would like advice on this subject.

Trader Pays Price for Walking Out Without Notice

In a ground-breaking decision, the High Court has ruled that, where an employee leaves his job without notice and ceases to be paid, the employer is still entitled to keep his employment contract alive and to prevent him working for competitors.

A derivatives trader’s contract required him to give 12 months’ written notice before leaving his job. However, on receiving an offer of employment with a rival company, he announced that he was leaving immediately and would never return.

The company for which he worked launched proceedings against him, claiming that he was still one of its employees and bound by restrictive covenants in his contract preventing him working for competitors during his notice period, which had been reduced by agreement to six months.

The company argued that, by ‘vanishing without agreement’, the trader had caused it serious prejudice by jeopardising its hopes of holding onto his client base. It had ceased to pay his salary following his departure on the basis that he was no longer ready and willing to do his job.

However, the trader, who was living on his savings, insisted that the company could not purport to continue to employ him whilst refusing to pay him and that his contract had come to an end on the day on which he walked out.

Ruling in the company’s favour, the Court found that it had good reasons for seeking to affirm the trader’s contract. It was entitled both to cease paying him whilst he refused to return to work and to stand on its contractual rights in seeking to prevent him from working for a rival for as long as possible.

Noting that the trader had ‘simply absented himself from work’, the Court issued an injunction which, during the six-month period, prevented him from contacting the company’s clients and from taking up his new post with the rival company or any other similar competitor.

Shared Parental Leave and Pay Reforms

The Government has laid before Parliament draft regulations which, if approved, will make changes to the way in which eligible parents of children due to be born or adopted on or after 5 April 2015 can take parental leave and pay. The aim is to introduce more flexible, more equal arrangements that will enable mothers to share up to 50 weeks’ maternity leave and 37 weeks’ pay with their partner so that both parents are able to maintain a strong link to their workplace.

The draft regulations can be found here.

Guidance for employers on how the new system will work can be found here.

Guidance for employees can be found here.