It has been a relatively quiet month in terms of employment law developments but as ever I do encourage you to look through my update. The future arrival of a right to bereavement leave is a change you might want to store in your mind, for example when you next look at updating your employee handbooks.
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The Parental Bereavement (Leave and Pay) Act 2018 has received Royal Assent. It will give a right to two weeks away from work for those employees who have lost a child under 18, or suffer a stillbirth from 24 weeks of pregnancy. Statutory parental bereavement pay (likely to be the same as statutory paternity pay etc.) will be due for this period, if the employee meets the relevant eligibility criteria (which again are expected to be similar to the eligibility criteria for statutory paternity pay).
The detail of the rights will be in as yet unpublished supporting regulations and the Act is expected to be fully in force by April 2020.
In Talon Engineering Limited v Smith (UKEAT/0236/17) Mrs Smith, who had been employed by Talon for over 21 years, was summarily dismissal for gross misconduct.
Her original disciplinary hearing was postponed for three weeks as a result of a period of sick leave and then annual leave. A date for the rescheduled hearing was set, but Mrs Smith’s trade union representative was unavailable then and for a further two weeks.
Talon refused a further request to postpone the hearing. They said that to do so would result in an unacceptable delay and that it was only required to agree to a postponement of up to five days under the statutory provisions relating to the right to be accompanied to a disciplinary hearing. So the disciplinary hearing went ahead in the absence of both the employee and her trade union representative and the decision was reached to dismiss her summarily. This decision was upheld on appeal.
Mrs Smith’s claim for unfair dismissal succeeded. The Tribunal decided that it was not reasonable in the circumstances to proceed with the disciplinary hearing in her absence and the Employment Appeals Tribunal (EAT) agreed. Just because the statutory rule says that a five-day postponement must be allowed, it did not follow that a postponement for longer would always be permissible and reasonable. Here, a further postponement should have been granted. The question was one of overall fairness.
Two issues arose in Mutombo-Mpania v Angard Staffing Solutions Ltd (UKEATS/0002/18) which are often of significance to employers in disability cases.
Mr Mutombo-Mpania worked for an agency which provided casual staff to the Royal Mail Group. When he joined he did not indicate on his application form that he had a disability and nor did he disclose any disability on a health form. Later, he tried avoid working regular night shifts, relying on his ‘essential hypertension’, the symptoms of which (despite medication) included headaches, fatigue, breathing difficulties and lack of confidence.
At the Tribunal hearing he offered no evidence of the impact of his impairment on his ability to carry out normal day to day activities. The burden of proof was on him to do that, by showing a substantial adverse effect. As he failed to do that, he did not meet the requirements of the law.
The second issue was whether the employer, even if under a duty to ask questions, could be considered to have been aware of the condition when a vague reference to a ‘health condition’ had been made. No, said the tribunal and the EAT agreed. Overall, on these facts, and where the employee had worked night shifts before and had denied having a disability, the employer could not be deemed to have knowledge.
In a second disability discrimination case which I report this month, the Court of Appeal considered an EAT decision that a disabled employee whose application for ill-health retirement was subject to unreasonable delay by the Ministry of Justice’s ‘arcane and unwieldy’ procedures did not suffer either direct disability discrimination or ‘discrimination arising from a disability’. The Court of Appeal held that it had no grounds to interfere with that decision.
Mr Dunn, a prison inspector, suffered from a depressive illness and a heart condition which amounted to a disability and he took ill-health early retirement in February 2016, having first applied in November 2014. He brought his claims because of the procedure by which his ill-health retirement application was determined. There was a long delay in dealing with the initial stages, much of it due to unnecessary bureaucratic processes.
The essence of the EAT’s decision was that although Mr Dunn had been treated unreasonably, that could not, by itself, justify a conclusion that a person without a disability would have been treated more favourably. In other words, unreasonable treatment did not equal unlawful discrimination. There could be other explanations, such as incompetence.
The Court of Appeal said that was a legitimate conclusion to reach. The EAT’s decision stood. (Dunn v Secretary of State for Justice and another 2018 EWCA Civ 1998.)
Ms Kaur was employed by H&W Wholesale Ltd. When the business got into difficulties, Hare Wines Ltd agreed to buy it.
In compliance with TUPE, the contracts of all H&W’s employees were transferred to Hare. Apart from Mr Kaur’s, that is: her employment was terminated two days before the transfer.
She said she was told by H&W that this was because the business was ceasing to trade. She alleged that they did not want her to transfer because of a strained relationship she had with her manager. The principal reason for her dismissal was therefore the transfer of the business, so it was automatically unfair under regulation 7 of TUPE.
Hare contended her employment did not transfer because she had objected to transferring. Her objection to transfer meant that any liability for her dismissal remained with H&W.
As a factual matter the Tribunal preferred Ms Kaur’s evidence. There was no objection. Hence, she would have transferred but for her dismissal, so the transfer was the reason for the dismissal.
In Hare’s appeal they sought to persuade the EAT that the reason for the dismissal was entirely personal to Ms Kaur and did not relate to the transfer. The EAT wasn’t having any of it. The existence of personal reasons did not mean that the reason for the dismissal was not the transfer.
The proximity of the dismissal to the transfer is an important consideration when determining the reason for the dismissal. Where an employer has taken action to resolve ongoing difficulties, for example by dismissing, only at the point of the transfer, it is open to a Tribunal to conclude that the reason for dismissal was the transfer.
In summary, it is possible for a dismissal around the time of a TUPE transfer to be for a reason unrelated to it, and therefor to be easier to defend as fair. The underlying rationale will always be key. But the closer in time the dismissal is to the moment of transfer, the greater the risk that the Tribunal will decide that in fact the transfer was the principal reason. (Hare Wines v Kaur and another UKEAT/0131/17).
In London Care Limited v Henry and others (UKEAT/0219/17), Ms Henry and 16 of her colleagues were employees of Sevacare (UK) Ltd, providing support and care for 168 adults within their homes. Sevacare provided these care services under a contract with Haringey Council. It tried to ensure that the same care assistant would provide the care to the same clients to ensure continuity and a relationship of trust. A regionalised approach was adopted, so wherever possible carers worked within one zone and were allocated clients within that zone.
When Sevacare gave notice to end its care service, the Council decided to transfer the service to four new residential care providers, allocating work between them based on capacity of the new providers and postcodes. In some cases, all of a care assistant’s work went to the same provider. In others, an assistant’s work was split between two or more providers.
Did this mean that some of the care assistants would transfer under TUPE – and if so, to whom – given that their work had been fragmented between multiple new providers?
Situations such as this are complex factually and as a result the EAT had some difficulty understanding the detailed conclusions of the Tribunal. However, it determined the Tribunal’s view to be that there was a service provision change, and therefore transfers of employment under TUPE, because overall the activities remained fundamentally the same after the change of providers and the requirement for there to be ‘an organised grouping of employees’ was met because the principal purpose of the activity was delivering care to clients for whom the Council was responsible. The whole issue of fragmentation, and whether that meant there was not a continuance of service provision, seemed to be disregarded by the Tribunal.
The EAT criticised the Tribunal’s approach, particularly in that it had not clearly identified the activity being transferred from the outgoing service provider to each new provider in turn. The fact that the services were broken up was relevant at this point. It was not adequate just to look at the services in totality before and after the change; each individual new contract had to be assessed.
These are often complex situations where detailed analysis is needed. The Tribunal illustrated that by adopting far too simplistic an approach.
In James-Bowen and others v Commissioner of Police of the Metropolis (2018 UKSC40) the Supreme Court has given employers some significant help in cases in which they face claims from third parties owing to the actions of their employees.
After Police Officers arrested a suspected terrorist, the suspect claimed for personal injuries he suffered, arguing that the police force was liable for the actions of its officers (known as ‘vicarious liability’). In due course the claim was settled with an admission of liability and apology for gratuitous violence on the part of the officers.
After they were acquitted on charges of assault, the officers pursued claims for compensation in respect of reputational, economic and psychiatric damage. The question was: did the police force owe duties to its officers to safeguard their interests when defending the claims presented by the suspect? Was it wrong for force to sacrifice their interests and professional reputations when deciding to compromise the claim?
The Supreme Court robustly decided that the answers to both of these questions was ‘no’. An employee might like his reputation to be vindicated through the defence of a claim presented against his employer, but it is the employer that will pay. In addition, the employer's insurer may have interests in the claim.
The Court decided it should not impose a duty on employers to protect the reputations of their employees when defending civil claims presented against the employer for various public policy reasons. Parties to a dispute should be able to resolve it without fear of incurring liability to others. The important legal policy of encouraging the settlement of civil claims out of court should not be restricted. The imposition of the proposed duty would delay or disrupt the progression of civil proceedings. Finally, the imposition of the duty would result in satellite litigation.