How to go about terminating the employment of an employee who has had a sustained period of sickness absence and may be or is disabled is right up there amongst the questions I am asked most often. Every bit of guidance from case law on navigating these choppy waters is therefore welcome, so it is good to have two cases on the subject this month.
Otherwise, it just remains for me to wish all readers a very Happy Christmas and New Year. I will not be sending cards, electronic or otherwise, but I do invite you to read to the end of this Newsletter and enjoy the final item, in which employment law meets the festive season.
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Earlier this year the Government outlawed terms in zero hours contracts which prevent individuals from doing work under any other contract or arrangement. This core rule is now being backed up by draft Regulations which, if enacted, will:
- mean that an employee working under a zero hours contracts will be unfairly dismissed if the reason, or principal reason, for dismissal is failure to comply with an exclusivity clause (with the two year qualifying period not applying), and
- prohibit the subjecting of a worker to any detriment because the worker has failed to comply with an exclusivity clause.
A zero hours contract is one which offers no certainty of work for the worker. Expect further regulation in this area given the scope for avoidance of these rules, for example by offering a very low number of core hours.
Solicitors firm Taylor Wessing received subject access requests in connection with litigation taking place in the Bahamas. The firm acted for a trust comp any which was sole trustee and manager of a trust fund. The requests came from members of a family, one of whom was a beneficiary under the trust.
Taylor Wessing did not comply with the subject access requests. It maintained that legal professional privilege applied to the majority of documents and that it would be disproportionate for them to search all their records going back over 30 years to check which were covered by legal professional privilege. They also maintained that their filing system was not a ‘relevant filing system’ for the purposes of the DPA because many of their records were not computerised.
The High Court supported the firm. The ‘disproportionate effort’ exemption, which permits data controllers to avoid carrying out a search where it is not reasonable or proportionate for them to do so, applied. The view the Court took that the claimants’ purpose was to obtain documents for litigation, which was not a proper purpose under the Data Protection Act, was also relevant.
This decision is helpful for those employers who face onerous requests, especially ones which appear to be tactical and aimed at fishing for information to back up a possible litigation claim. But this remains a delicate area and it is easy to see another court on another day taking a different view. (Dawson-Damer and others v Taylor Wessing LLP and others 2015 EWHC 2366.)
In L v M the employee was dismissed after 162 days of sick leave for depression, brought on by complaints that she had been stalking someone outside work.
The employer had some evidence suggesting that the employee was not guilty of the stalking allegations, but it refused to disclose the material to the employee. When she did eventually get hold of it (through an anonymous source) she sent it to the police and the case was dropped.
Despite all of this, the employee was dismissed because of her sickness absence record a few weeks later. The tribunal and the Employment Appeals Tribunal (EAT) considered that to be unfair. Although the employer was not responsible for the depression, it prolonged it by not disclosing the material showing the employee’s innocence. This was a relevant factor when assessing the fairness of her dismissal. That did not mean that the employer could not dismiss fairly at a later date.
Where an employer causes or exacerbates an employee’s illness, greater steps to avoid dismissing for incapacity may be needed.
Monmouthshire County Council v Harris (UKEAT/0010/15) concerned a disabled employee who worked partly at home. A new manager was appointed who would no longer allow this, resulting in the employee’s dismissal. The employment tribunal decided that this dismissal was unfair and discriminatory.
The EAT upheld the Council’s appeal. The tribunal failed to address the question of whether the employer could reasonably be expected to wait longer before dismissing, which was a critical one in determining fairness.
As far as the discrimination claim was concerned, the tribunal also went wrong in assessing whether the decision to dismiss was a proportionate one. It was fair enough to take into account an earlier failure to make reasonable adjustments, but the tribunal also needed to recognise that there was no continuing obligation to make the adjustments at the time of dismissal and the up-to-date medical evidence (which gave an uncertain and pessimistic prognosis) was relevant too.
The recent employment tribunal decision in Waddingham v NHS Business Services Authority (ET 1804896/13; ET 1805624/13) is a reminder to all employers to take care when a disabled employee is amongst the candidates for an internal post.
Mr Waddingham applied for an internal vacancy but failed to achieve the required score at a competitive interview. He was at risk of redundancy but said that he wanted to proceed with the interview, despite having been signed off whilst receiving cancer treatment.
The tribunal accepted that some form of assessment was needed, but that in the circumstances the employer should have carried this out on the basis of existing data about the employee’s performance, including appraisals from previous posts (although lowering the interview pass mark was not necessary). The failure to appoint the employee was discrimination as it had resulted from his poor performance at interview, which had been adversely affected by his condition.
Robinson v RSCH (UKEAT/0311/14) is an interesting case involving a nurse who suffered different forms of disability discrimination.
She was dismissed in 2013 following a capability hearing. She complained of various acts taking place in 2011 and 2012 which she maintained amounted to direct disability discrimination, disability related harassment and a failure to make reasonable adjustments.
The conundrum for the employment tribunal was whether these different strands represented a continuing act. It concluded not, leaving Ms Robinson out of time to bring her claim. The EAT though this was wrong and that it might be appropriate to allow complaints of different types of discrimination to be taken together as constituting conduct extending over a period.
Critically, though, the EAT felt that the employment tribunal could legitimately conclude from the facts that there was no link between the earlier discriminatory acts and the decision to dismiss, so the claim failed anyway.
An important consideration in any disciplinary or dismissal decision is whether there is scope for the employee to point to the different treatment of another employee for the same or a similar offence to undermine fairness. MBNA Ltd v Jones (UKEAT/0120/15) is a useful guide to this issue.
You will enjoy the facts of this case, so here is a summary. MBNA held an event at Chester Racecourse to celebrate its 20th anniversary. Staff were told that it was a work event and that normal conduct rules applied. Despite that, there were some incidents between Mr Jones and a colleague, Mr Battersby, described by colleagues as ‘banter’. Drink was involved. The incidents began with Mr Battersby kneeing Mr Jones in the back of his leg. Mr Jones responded, as you do, by licking Mr Battersby’s face. Later on, Mr Jones had arms around Mr Battersby’s sister. Mr Battersby responded in his conventional fashion, by kneeing Mr Jones in the leg again. Mr Jones then punched Mr Battersby in the face. After the event, Mr Battersby texted Mr Jones seven times threatening serious violence, although he did not follow that up.
The same MBNA manager investigated both cases. He found no substantive provocation of Mr Jones, that the incident risked reputational damage to the company and that Mr Jones should be dismissed for gross misconduct. In Mr Battersby’s case, the text messages also amounted to gross misconduct, but the appropriate penalty was a final written warning.
Mr Jones argued in the tribunal that if both employees had committed gross misconduct, either both of them should have been dismissed or neither of them. Therefore his dismissal was unfair.
The tribunal supported that view and that there was an unreasonable inconsistency in treatment between the two.
The EAT disagreed. The question was whether it was reasonable for the employer to dismiss this employee. Disparity of treatment will occasionally be relevant to reasonableness, but the circumstances need to be truly parallel. Here they were not. The fact that in these circumstances the employer was lenient, possibly unduly so, to another employee was neither here nor there.
The decision of the European Court of Justice (ECJ) in Pujante Rivera v Gestora Clubs Dir SL (C-422/14) is important when it comes to determining whether the threshold for collective consultation in multiple redundancy situations is met.
In the course of the restructuring of Gestors Clubs, 10 employees were dismissed for economic reasons, 17 left because the agreed contract term had expired, there were two voluntary redundancies and one contract terminated at the employee’s request because she objected to a 25% pay cut. The pay cut was implemented for the same reasons as the economic dismissals.
The Court regarded that last termination, essentially a resignation, as constituting a ‘redundancy’ for the purpose of the collective consultation obligations imposed by the Collective Redundancies Directive. The resignation was in response to the change made unilaterally to an essential element of the employment contract for reasons not related to her as an individual.
Another ECJ ruling this month concerned a worker whose hours of work increased and whether statutory annual leave that had already accrued needed to be recalculated retrospectively to take account of the increased working hours.
No, said the Court. The two periods should be calculated separately. Going forward, of course, leave entitlement needed to be calculated according to the new working pattern, but any leave taken in excess of the entitlement that applied under the previous working pattern should be deducted from the leave going forward. (Greenfield v The Care Bureau Ltd (C-219/14).)
Middlesex University engaged ICTS to provide security services at a number of sites. One of the sites was closed and some employees were assigned to guard these vacant premises. When the site was purchased by a Malaysian university, ICTS offered to enter into a new contract to continue to provide its security services in the meantime. Four months later a replacement contractor was appointed. Was this a ‘service provision change’ under TUPE?
The new contractor argued that it would be providing security while the site was redeveloped, rather than an empty site. That represented a ‘task of short-term duration’ (for the period of the renovation of the site) which would not, under TUPE, be a relevant transfer.
The employment judge accepted that argument, noting that TUPE refers to whether the client ‘intends’ that the activities be carried out in connection with a task of short-term duration. Hence it was the intention of the client when the new contractor was engaged which mattered, subsequent events being irrelevant.
The EAT disagreed. Subsequent events could be considered, in this case the fact that by the time of the hearing no planning permission had been obtained and no building work had started at the site. That information would inevitably have affected the employment judge’s decision by casting doubt on the reliability of the client’s evidence and raising questions as to whether it could genuinely have been intended that the ‘task’ would be ‘of short-term duration’ and as to whether that could have been more than a ‘hope and wish’. The matter was sent back to the tribunal to be reconsidered. (ICTS UK Ltd v Mahdi and others UKEAT/0133/15.)
The claim made against Chelsea FC by Dr Eva Carneiro for constructive dismissal and gender discrimination may raise no novel points of law but it attracts legal attention on two counts.
First, the discrimination aspect of the claim will no doubt turn on what Jose Mourinho, Chelsea’s manager, said to Ms Carneiro after she had rushed onto the field (at the request of the referee and in accordance with her duties as a doctor) to attend to the apparently badly injured Eden Hazard (who may or may not have been feigning it because Chelsea were already down to 10 men and were hanging on for a point). Might what he said represent stereotypical assumptions within and around the great game that women know little or nothing about football?
Secondly, the inclusion of Mr Mourinho personally as a respondent in the claim reminds us that employees who commit acts of discrimination can find themselves in the front line and may not just be able to hide by their employer. If found liable, Mr Mourinho could be jointly responsible with the Club for the payment of any financial awards. Presumably the Club will protect him on this – although maybe a couple of wins are urgently needed to ensure that happens.
I’d like to finish with a heartfelt thank you to the management at Celtic Manor Resort near Chepstow – home of the 2010 Ryder Cup – for this Christmas gift to employer lawyers across the country.
The potential claimant in the case is a Mrs Claus. Celtic Manor advertised for someone to take that role, at the minimum pay rate of £6.70 per hour, to work alongside a Mr Santa Claus, who would be paid £12 per hour.
Hold on a minute. Do EU equal pay laws not apply at the North Pole? How come Santa earns a handsome £12 an hour when his good lady gets the same as the elves?
Celtic Manor apparently explained that Santa would play the ‘lead role’ and be the ‘star attraction’, with Mrs Claus taking ‘more of a supporting role’. ‘The difference in pay’ they said ‘reflects only the more skilled requirements and responsibilities of the Santa role and is in no way indicative of a gender pay divide at Christmas Kingdom’. To be fair, the advert for the Santa role required him to have ‘acting ability’ and to be ‘entertaining, jovial and happy at all times’. Meanwhile, when hidden away in ‘her’ kitchen, it appears that Mrs Claus was permitted to be boring and miserable.
The Daily Mail found a local expert (or possibly Santa visitor) Kim Rees, 33 and mother-of-two, from Ringland, Newport who succinctly identified the legal issue: ‘It’s not fair – there’s a huge difference between the two rates of pay. I wouldn’t want to work there knowing Santa is on almost double what his wife gets. They should get the same. Whoever came up with this pay scale should get the sack.’ (Pun intended? - good for her if it was.)
The job evaluations which will no doubt be undertaken by each party to the litigation, assessing the demands of Santa’s job – mastering his cheerful ‘Ho, Ho, Ho’, selecting a suitable gift according to the age and gender of the child (or is that discriminatory as well?) – will be interesting reading.
The equal pay lobby may have found its new champion.