Supreme Court Ruling Extends Workplace Whistleblowing Protection

Can the reason for an employee’s dismissal ever be other than that given in good faith by the decision-maker appointed by the employer? The Supreme Court has answered that burning question in a test case concerning a whistleblower who was sacked on the basis of performance concerns trumped up by her dishonest line manager.

WhistleThe Royal Mail worker was a whistleblower, having made protected disclosures under Section 43A of the Employment Rights Act 1996 (ERA). Her line manager’s response was to pretend that her performance was inadequate. Bullying which the worker suffered at the line manager’s hands resulted in her being signed off work, suffering from work-related stress, anxiety and depression.

Another employee (the decision-maker) was appointed to consider whether the worker should be dismissed. She was, due to her condition, unable to present her case so that the decision-maker, who acted entirely in good faith, had no reason to doubt the truthfulness of material which had been fabricated by the line manager. The worker was dismissed on grounds of inadequate performance.

In rejecting her claim of automatic unfair dismissal under Section 103A of the Act, an Employment Tribunal found that the decision-maker had held a genuine belief that her performance was inadequate and that, therefore, was the reason for her dismissal. That ruling was reversed by the Employment Appeal Tribunal but subsequently reaffirmed by the Court of Appeal.

In upholding the worker’s challenge to the latter decision, the Supreme Court ruled that, where the real reason said to justify a dismissal is hidden behind an invented reason, it is incumbent on judges to penetrate through the invention. The Court concluded that, if a person in the hierarchy of responsibility above an employee decides that she should be dismissed for one reason, but hides it behind an invented reason which the decision-maker adopts in good faith, the reason for the dismissal is the hidden reason rather than the invented reason.

The Court noted that, although the case raised an apparent issue of general importance, the facts of the matter were extreme. Instances of dismissal decisions being taken in good faith, not just for a wrong reason but for a reason dishonestly constructed by an employee’s line manager, would not be common. The outcome of the case clearly accorded with Parliament’s intention that, where the real reason for a dismissal is whistleblowing, the automatic consequence should be a finding of unfair dismissal.

Unfairly Sacked College Lecturer Wins Over £60,000 Compensation

Workplace personality clashes are sadly common but a perception that an employee is difficult to work with is not enough to justify his or her dismissal. A college found that out to its cost after an Employment Tribunal (ET) ordered it to pay more than £60,000 in compensation to one of its former lecturers.

StudyingIn finding that the woman’s inappropriate behaviour was a primary cause of a breakdown in personal relationships within her department, the college noted that three of her colleagues had cited her conduct as a factor which contributed to their decisions to resign. Many perceived her behaviour as challenging and she was dismissed on the basis that her behaviour had destroyed the relationship of trust and confidence that should exist between an employer and employee.

In ruling on her unfair dismissal claim, the ET noted the college’s concern about the sheer volume of complaints against her and the heavy resource implications of dealing with them. On the basis that many of her colleagues viewed her as a difficult person to work with, the college was also anxious about the prospect of further resignations.

In upholding her complaint, however, the ET found that the procedure followed by the college was fundamentally unfair and was from the outset aimed at justifying her dismissal. She had been given no opportunity to answer unparticularised allegations and there had been no inquiry as to whether they were in fact justified. An unfair assumption had been made that she had in every instance been at fault.

After she lodged a formal grievance, complaining of, amongst other things, failures of management, the college did not investigate. She had been suspended for eight months, pending investigation of unsubstantiated allegations, and her extended absence had led to a hardening of attitudes against her return. The ET ruled that she was in no way to blame for her dismissal and awarded her a total of £62,940 in damages. That included sums in respect of holiday and notice pay.

Chronic Fatigue Sufferer Wins Substantial Disability Discrimination Damages

Every disabled employee is entitled to have reasonable adjustments made for them so that they are not disadvantaged in going about their work. In a case on point, an ME and chronic fatigue syndrome sufferer who could not meet the requirements of her employer’s attendance policy won tens of thousands of pounds in compensation.

HospitalThe occupational therapist’s disability meant that she was more likely to need periods of sick leave than other employees. Her NHS trust employer responded by making an adjustment to its sickness absence management policy whereby she could have five periods of sickness absence annually, instead of the standard three afforded to other personnel.

The adjustment was kept in place, apparently successfully, for four years before it was abruptly removed. Whilst other adjustments were made, including a reduction in the woman’s working hours, she was unable to meet the attendance requirements and was ultimately dismissed.

Her complaints of discrimination and a failure to make reasonable adjustments were subsequently upheld by an Employment Tribunal (ET), as was her claim of unfair dismissal, although the ET ruled that there was a 50 per cent chance that she would have been dismissed within four months in any event. She was awarded substantial damages, including a basic award of over £10,000, more than £30,000 for future loss of earnings and £24,500 for injury to her health and feelings.

In rejecting the trust’s challenge to that outcome, the Employment Appeal Tribunal could find no fault in either the ET’s calculation of her award or its properly reasoned conclusion that the abrupt withdrawal of an adjustment that had worked well for years was unjustified and that her dismissal was thus unfair.

Disabled Nurse Denied Reasonable Adjustments Wins Substantial Damages

Managing an employee’s return to work after a long period of sickness absence can be a highly sensitive matter. A case in which a visually impaired nurse was awarded more than £30,000 in damages serves as an instructive illustration of how it should not be done.

NurseThe nurse, who was agreed to be disabled, was on sick leave for over two years before she was dismissed without notice. Her NHS trust employer’s attempts to redeploy her had been abandoned on the basis that there was no reasonable prospect of her returning to work as a nurse or in any clinical capacity.

In upholding her complaints of unfair dismissal and disability discrimination, an Employment Tribunal (ET) noted that there was no dispute that her dismissal amounted to unfavourable treatment. The reason for her dismissal was her long-term sickness absence, which arose as a consequence of her disability.

The ET found that reasonable adjustments that the trust could have made in order to ease her return to work included extending the redeployment process for a further period and providing suitable lighting, specialist computer software, training and a dedicated work station. Some adjustments had been offered, but occupational health reports supported her case that, had more been done, she would have been able to return to work in a suitable role, at least on a trial basis.

The trust’s plea that her dismissal was justified by the legitimate aims of promoting fair and consistent employment policies and prioritising patient care were rejected. She had not been a cost burden on the trust, given that the latter part of her sick leave was unpaid, and her dismissal was inconsistent with the trust’s own policy, in that she was willing and able to return to work. She was awarded a total of £32,709 in compensation, including £13,000 for injury to her feelings.

Individual Hardship Tips the Balance Against Non-Compete Covenant

When deciding whether to enforce non-compete covenants in employment contracts, judges often have to perform a delicate balancing exercise between protection of legitimate business interests and individual hardship. A High Court ruling in a recruitment industry dispute provided a perfect example of that happening.

Teacher\'s deskA recruitment company in the education sector launched proceedings against five of its former employees after they took jobs with a rival business. The company argued that restrictive covenants in their employment contracts forbade them from working for a competitor for six months following their departure.

The five offered to give formal undertakings that they would not, during that period, solicit or deal with any of those named on an agreed list of the company’s clients. The company, however, took the view that that did not provide it with adequate protection and sought an interim injunction against them, preventing them from carrying out any work for their new employer for the requisite six months.

The five argued that the relevant covenant was not incorporated in their employment contracts, but the Court found that the company had in that respect raised a serious issue to be tried. It also accepted that, in the event of breaches of the covenants being established, an award of damages would not provide the company with an adequate remedy.

In refusing to grant the injunctive relief sought, however, the Court noted the terms of the non-solicitation and non-dealing undertakings that the five were prepared to give, both contractually and to the Court. Requiring them not to do any work for their new employer for an extended period would cause them obvious hardship and disrupt both their lives and the competitor’s business. There was no evidence that the competitor would be prepared to continue employing them on that basis and the balance of convenience therefore fell firmly in the five’s favour.

Stables Worker Injured By Spooked Horse Wins Substantial Damages

HorseIf you are injured at work due to your employer’s failure to keep you reasonably safe, you should seek legal advice straight away. A livery stables worker who did just that after she was injured by a spooked horse won more than £90,000 in damages.

The experienced equestrian was exercising a horse that she had ridden many times before when it was startled by a piece of plastic packaging that had lodged in a hedgerow and which was fluttering in the wind. After shying and running out of control, the horse fell on her, causing a double fracture to her lower leg.

After she brought a claim against her employers, a judge found that the plastic debris probably emanated from a bale of fodder which had been opened at the stables. There was no adequate system in place to ensure that such debris was securely disposed of, rather than being allowed to escape into the open.

Everyone working at the stables would have been aware that pieces of plastic have a tendency to blow about in the wind and that horses can be spooked by a wide range of sometimes small stimuli. There was therefore a direct causal link between the employers’ breach of duty and the woman’s accident. She was awarded damages in the agreed sum of £93,142.