EAT Breathes New Life into IT Worker’s Disability Discrimination Claim

Can a dismissal be an act of discrimination if the affected employee is subsequently reinstated? In a case concerning a disabled IT support analyst, the Employment Appeal Tribunal (EAT) answered that important question in the affirmative.

Railway Line 2The man’s employer, a railway infrastructure company, was aware that he suffered from ulcerative colitis. Due to that condition, which amounted to a disability, his record of absence from work was on any view high. He had been off work sick for almost five months when he was given notice of redundancy. After that notice period expired, he was dismissed.

That decision was in breach of a national agreement between the employer and trade unions that there would be no compulsory redundancies amongst workers in the man’s grade during the relevant year. Having apparently realised its error, the employer first extended the redundancy notice and then revoked it. The man returned to work and was still in the same employment when he launched Employment Tribunal (ET) proceedings.

In dismissing, amongst other complaints, his direct disability discrimination claim, the ET found that it was a genuine redundancy situation and that his dismissal was not a sham. His employer handled his dismissal poorly, but it had arisen from management ineptitude rather than from his disability. The man having in any event treated himself as employed throughout, the ET found that, on his reinstatement, his dismissal effectively vanished.

In upholding his appeal against that ruling, the EAT noted that the man was the only one amongst the employer’s large workforce to be dismissed in breach of the union agreement. There had apparently been some animus directed towards him because of his frequent absences from work and there had been no consideration of whether that was the underlying reason for the employer’s error.

His reinstatement was irrelevant to the issue of whether the employer’s failure to retract the redundancy notice before it took effect was a detriment that arose because of his disability. The same ET was directed to consider the man’s disability discrimination claim afresh in the light of the EAT’s ruling.

Part-Time Judges Come Out on Top in Supreme Court Pensions Dispute

An important Supreme Court ruling concerning the pension rights of part-time judges has removed a potential obstacle in the way of justice being obtained by part-time workers who are treated less favourably than comparable full-time colleagues.

GavelDepending on their length of service, full-time, salaried judges who were appointed on or before 31 March 1995 are entitled to receive pensions on reaching retirement age under the Judicial Pensions and Retirement Act 1993. However, the same benefit is not available to part-time, fee-paid judges on the basis that they are not qualifying judicial office-holders as defined by the Act.

In those circumstances, four current and former judges who served at least part of their time on the bench on a part-time basis complained to an Employment Tribunal (ET) of less favourable treatment, contrary to the Part-time Workers Directive (Directive 97/81) and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

Claims under the Regulations must be brought within three months of the date on which the alleged less favourable treatment or detriment occurs and the judges’ complaints were dismissed on the basis that they had been brought too late. The ET found that the three-month time limit began to run on the date of their appointment and that their claims were thus substantially out of time.

In ruling on their appeals against that decision, the Court noted that judicial office-holders, whether full- or part-time, are not employed under contracts. The judges might well have been able to complain of unequal treatment on the date of their appointment due to the lack of any provision for a pension, equivalent to that available to their full-time colleagues, in their terms of office.

In unanimously upholding their appeals, however, the Court found that that did not detract in any way from the less favourable treatment that they undoubtedly suffered, or would suffer, at the point of retirement. As a matter of common sense, the detriment that they suffered when compared to full-time judges was continuing and persisted throughout their periods of office. Time in respect of the three-month limitation period thus began to run on the date of their retirement. The Court made declarations to give effect to its decision.

Rules of Fairness Apply to Big and Small Businesses Alike

Hair stylistIn small family businesses, disagreements are often patched up informally. However, as an Employment Tribunal (ET) ruling showed, it is vital to remember that legal standards of fairness in employment relationships apply to them in just the same way as to giant corporations.

The case concerned a woman who had worked as a stylist in a hair salon owned by her sister for over 20 years. Heated exchanges between them were commonplace, but would generally be resolved amicably, sometimes with a bunch of flowers and an apology. Matters took a different course, however, following a row in which the stylist swore at her sister and refused to leave the premises when asked.

The stylist was served with a formal suspension letter and she was summarily dismissed following a disciplinary process conducted by her sister’s partner, who performed an administrative role in the business. After she sought to appeal, she was denied a hearing on the basis that she had put forward no further information and had stated that she did not want her job back in any event.

After she launched an unfair dismissal claim, the ET took account of the modest size of the business and its limited administrative resources. The stylist admitted having used foul language and refusing to leave the salon and her sister’s partner, who was trying to help out in good faith, had done his best to follow a fair procedure. Both he and the sister genuinely believed that the stylist was guilty of gross misconduct which justified her dismissal.

In upholding her complaint, however, the ET pinpointed flaws in the decision-making process and found that her dismissal fell outside the range of responses open to a reasonable employer. Her sister’s partner had closed his mind to her claim that she had been provoked and she had been given no opportunity to challenge her sister’s account of the argument. Those shortcomings were exacerbated by the fact that she was not allowed to appeal against her dismissal.

There was no evidence that the particular altercation between the sisters was any different from previous rows between them and the ET found that the incident could reasonably have been dealt with by issuing a warning to the stylist not to overstep the mark again. The ET nevertheless found that, given her admitted misconduct, she bore 25 per cent of the responsibility for her own dismissal. The amount of her compensation will be assessed at a further hearing.

Made Redundant Without Consultation? You Could Be Due Compensation!

DresserCompanies facing financial difficulties sadly often collapse with little notice, leaving their hard-working employees bereft. As an Employment Tribunal (ET) decision showed, however, those affected are not without legal redress and can win compensation if they have been made redundant without consultation.

The case concerned a long-established furniture manufacturing company which went into administration. All three of its plants were closed with little warning and almost 200 workers were made redundant. They launched proceedings against the company, seeking protective awards under Section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

In upholding their claims, the ET noted that at one of the plants, where there was no recognised trade union, there had been no attempt to engage in collective consultation before the redundancies were announced. The legal requirement to elect an employee representative in order to give employees the opportunity to engage in such consultation had not been complied with.

Although a number of individual employees had purportedly been consulted, the process was a meaningless sham in that the decision to close the plant had already been taken. It was at one point mooted that employees might be willing to work for a period for no pay, but such suggestions were entirely ignored. The closure of the other two plants was also infected by an absence of employee consultation.

Given the company’s failure to comply with the requirements of TULRCA, The ET made the maximum available award of 90 days’ pay to each redundant worker. If those sums could not be recovered from the company’s administrators, the workers could have recourse to the Redundancy Payments Office, part of the Department for Business, Energy and Industrial Strategy.

Employee Unfairly Sacked for Alleged Expenses Fraud Secures Compensation

Workplace disciplinary proceedings must always be thorough and fair, but that is all the more the case where an employee is accused of dishonesty. An Employment Tribunal (ET) succinctly made that point in awarding substantial damages to an employee who was accused of making a fraudulent expenses claim.

GastropubThe policy of the company for which the man worked was that only expenses that had been incurred wholly, exclusively and necessarily for business purposes could be claimed by employees. External HR consultants were engaged to investigate after he was alleged to have lodged an expenses claim in respect of a pub meal attended by himself, his girlfriend, a friend of hers and his line manager. The latter was the principal witness against him in the disciplinary proceedings.

There were a range of factual disputes as to what was and was not said during and after the meal and as to whether the pub’s bill was in respect of two people or four. However, the line manager’s account was ultimately accepted and the man was dismissed on grounds of gross misconduct. He was found to have submitted a fraudulent expenses claim in knowing breach of the company’s policy.

In upholding his unfair dismissal claim, the ET noted that the gravity of the allegation mandated careful critical analysis of all the evidence. Although the investigation was diligently performed, the company’s managing director, who took the decision to dismiss the man, ignored a number of inconsistencies in the line manager’s account. On any reasonable analysis of the evidence, the latter’s testimony was unreliable.

The ET made a total 50 per cent deduction from the man’s compensation to reflect his own share of responsibility for his dismissal and the chance that, had a fair procedure been followed, he could have been fairly dismissed. Nevertheless, his award came to £24,749, made up of a basic award of £734, £7,000 in respect of three months’ notice pay and £17,015 by way of compensation.

The Staff Christmas Party

While the Christmas party is a great opportunity for staff to socialise together and celebrate their achievements over the past year, and for employers to thank them for the work they do, it is important to remember that employers owe their employees certain obligations, even outside work, when they have organised the event themselves.

ChristmasEmployees should be aware that their conduct during the party must comply with normal standards and must not breach workplace equal treatment and anti-harassment policies. Employers can be vicariously liable for their employees’ behaviour at such functions, so it is important to be able to show that all reasonable steps have been taken to prevent behaviour that could give rise to such a claim. This includes making staff aware of the appropriate policies regarding conduct at work events and providing adequate training.

In order to prevent what should be a happy occasion from leading to recriminations or worse, an employer should take certain basic steps. Here are some of the more important ones: 

  • Try to make sure the date of any work event does not coincide with the dates of religious festivals;
  • Carry out a risk assessment – this should include the venue and, in particular, the possible risks associated with serving alcohol. Making sure employees can get home safely is important, so consider hiring transport or providing taxis solely for this purpose if necessary. Ensure soft drinks are provided as an alternative to alcoholic drinks and that individual dietary requirements are catered for;
  • Ensure that, if employees’ partners are invited, there is no discrimination with regard to who is included. Ensure also that reasonable adjustments are made to allow any disabled employee or partner to attend and that any employees absent on maternity leave or because of long-term sickness are included;
  • Where possible, make sure that the arrangements accommodate the requirements of employees of different religions;
  • Ensure that employees understand the difference between ‘banter’ and behaviour that could be considered to infringe the dignity of any person present. You may wish to appoint event supervisors to oversee the function, to whom staff can report any problems. If unwanted behaviour is observed, act quickly to prevent it from reoccurring and take prompt action if a complaint is received;
  • Make sure that employees who are expected to attend work the next day understand that absence through over-indulgence is likely to be regarded as a disciplinary matter; and
  • Make sure employees are aware that any illegal acts will not be tolerated.

The biggest problems that are likely to arise are that inappropriate behaviour may occur, especially if alcohol flows too freely, and that there may be conduct which members of a particular faith find objectionable.

Your firm’s contract of employment will probably deal with most or all of these issues. However, it is sensible to have a separate policy on what is expected of employees at workplace social events and to remind them of its contents in advance of any function.

For advice on any aspect of employee behaviour or contracts of employment, contact us.

Has Your Employer Been Taken Over? Your Loyalties Must Shift!

When a company is taken over by another, its employees may have mixed feelings, but the legal position is clear – they must shift their loyalties to the new owner. Two men who found themselves in exactly that position were hit hard in the pocket after maintaining their attachment to the old guard.

LorriesThe men worked for a transport and logistics company in which they each had a 5 per cent shareholding. After a purchaser acquired the remaining 90 per cent of the shares, they retained their stakes in the company and continued in their employment under new management for about two years.

They eventually exercised put options, requiring the purchaser to buy their shares at their fair value. Under the terms of agreements signed at the time of the takeover, that would have had the effect of automatically terminating their employment on three months’ notice. However, after they were instead dismissed on grounds of alleged gross misconduct, they launched proceedings.

The company contended that they were guilty of a number of material breaches of their employment contracts and that their dismissals were justified. They responded with claims that the sole motive for sacking them was to avoid the purchaser’s contractual obligation to pay them a fair price for their shares.

In ruling on the matter, the High Court found that the men were aware of accounting irregularities in the company’s affairs prior to the buy-out and that it was in the grip of a cash-flow crisis. Unbeknown to the purchaser and the company’s directors, they had shared highly confidential information concerning the company with a former shareholder, who was the father of one of them. Notwithstanding the change in ownership, their loyalties had remained firmly with the company’s former management, rather than with their employer.

Rejecting their wrongful dismissal claims, the Court found that their breaches of the confidentiality obligations that they owed to the company were serious and went to the heart of the employer/employee relationship. On the basis that they could no longer be trusted, the company was entitled to dismiss them. As defaulting shareholders, they were also entitled to only a nominal price for their shares.