Newsletter September 2019


My readers are presumably well attuned to legal matters given the monumental events in the world of constitutional law this week. Hopefully you all have some capacity left to focus on the day job. This month I cover the issue of suspension in gross misconduct cases and two cases about sexual harassment, among other things.

Darryl Evans
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Suspension in disciplinary cases

Upton-Hansen Architects Limited v Gyftaki (UKEAT/0278/18) is a reminder that the suspension of an employee accused of misconduct should not be a knee-jerk response, even where the allegation is one of gross misconduct.

Ms Gyftaki had exhausted her annual leave but needed to travel abroad urgently for personal reasons. She booked a flight and submitted a request for additional holiday the day before she was due to fly, which she mistakenly assumed had been granted. At 8.30 that evening she received an email from her manager saying that her request had been denied. She replied that her arrangements had already been made so she would have to take it as unpaid leave.

The company was advised that this was gross misconduct and consequently that a suspension pending investigation was warranted. The company added into the process a previous incident of her taking excess leave, even though that had been retrospectively approved. After being suspended Ms Gyftaki resigned and claimed unfair constructive dismissal and wrongful dismissal.

The tribunal held, and the Employment Appeal Tribunal (EAT) agreed, that the decisions to include Ms Gyftaki's previous excess holiday issue in the disciplinary allegations and to suspend her were both breaches of the implied duty of trust and confidence. Her complaints were upheld and the tribunal made basic and compensatory awards.

Definition of disability – stress and depression

Mr Parnaby suffered from depression, caused by work-related stress. He was able to demonstrate that this mental impairment had a substantial adverse impact on his normal day to day activities. However, when he was dismissed, this impairment had not lasted for 12 months. On that basis the employment tribunal held that he was not disabled because he had not shown the impairment to be long-term.

Wrong, said the EAT. The employment tribunal had made assumptions about the likely duration of the impairment, deciding that the dismissal would remove the source of the impairment and hence shorten it. The tribunal, concluded the EAT, should have considered both whether the impairment was likely to last 12 months, irrespective of the potential for the dismissal to shorten the duration of the impairment, and whether it might recur. It could not make an assumption about whether removing the stress would remove the impairment. The case was sent back to the tribunal for reconsideration.

Employers faced with a similar situation should, in the same way, not assume that dismissal can eradicate a condition and thereby avoid a disability discrimination claim. (Parnaby v Leicester City Council UKEAT/0025/19.)

Whistleblowing: public interest test

Ms Okwu was employed by a charity providing support for victims of domestic violence and female genital mutilation. She submitted a letter complaining about various issues related to her work situation, including that she had to use a shared mobile phone for dealing with clients and that there was a lack of secure file storage. She said that these two points were in breach of the Data Protection Act 1998, given the sensitive nature of her work. The charity dismissed her, apparently for poor performance, but compounded by her letter, which it said "demonstrated [her] contempt for the charity".

Her claim for unfair dismissal on whistleblowing grounds was rejected by the tribunal on the basis that her letter was not a qualifying disclosure. It concerned "personal contractual matters", they said, which "related to her and nobody else" and did not have sufficient public interest. In any event, it held that the letter had not been the reason for dismissal.

The EAT held that the tribunal had misapplied the public interest test in relation to the shared mobile phone and file storage issues. Even if those matters had been raised in defence of her performance, that did not mean that she could not reasonably believe them to be in the public interest. Public interest need not be her only motivation and it was hard to see how these matters would not, in Ms Okwu's reasonable belief, be in the public interest.

This is an interesting decision because very often there are mixed motives for disclosures being made. I have been in cases exactly like this, where the question of whether the arguably self-serving value of the employee’s disclosure would eradicate the public interest which was clearly present was a live point. This decision suggests the law would have come down in favour of the employee. (Okwu v Rise Community Action UKEAT/0082/19.)

Shoulder massage – sexual harassment?

In Raj v Capita Business Services Limited (UKEAT/0074/19) Mr Raj’s female manager had massaged his shoulders in an open office. The tribunal found this to be was unwanted conduct producing an offensive environment for him. However, it accepted that the conduct was not related to Mr Raj’s gender and the reason for it was misguided encouragement, so the claim failed.

The EAT upheld the approach. There is a two-stage test in the Equality Act: first, was there unwanted conduct producing an offensive environment; and secondly, was that unwanted conduct related to a protected characteristic? An affirmative answer to the first of these questions did not mean that there should be an assumption that the answer to the second was ‘yes’ as well. The ‘burden of proof’ remained with the claimant to provide evidence of the, in this case, sex-related nature of the action.

This outcome should not, however, be interpreted as encouraging this sort of physical contact. In other circumstances the outcome could have been quite different.

Innuendoes – sexual harassment?

Contrast that decision, however, with Prewett v Green King Services Ltd (ET/1800566/2019) where a succession of inappropriate comments did amount to sexual harassment.

Ms Prewett was the Manager of the “Big Tree” pub. The pub failed a food hygiene audit, leading to Mr Bentley, the company’s Risk Manager, paying a visit. Here began the problems.

First, there was an exchange about a slang term for female genitalia. This meaning of the term was unknown to Ms Prewett at the time but she later found out and was unhappy that Mr Bentley had used this language. Then he returned to review the pub’s kitchen standards and when Ms Prewett asked him “What do you want to see first?”, he responded: “Depends what’s on offer?”. He then touched her shoulder before conducting the kitchen inspection.

Following a further incident a month later, not involving Mr Bentley directly but which she took exception to, Ms Prewett resigned, citing Mr Bentley’s sexual harassment as the reason for her decision. Her grievance and appeal were rejected. Shortly after, she issued her claim for sexual harassment and unfair dismissal.

The tribunal upheld her sexually harassment claim and awarded her £5,000. Her claim for unfair dismissal did not succeed as the tribunal did not consider that Mr Bentley’s conduct was “calculated to destroy or seriously damage trust and confidence”.

Nonetheless, particularly bearing in mind the reputational damage done to the company, this is a reminder of the need to educate managers and other staff on suitable workplace conduct.

Automatic unfair dismissal – working time

Mr Pazur, who was a kitchen porter, was denied his right to a rest break under the Working Time Regulations 1998 (WTRs) when assigned to work for a client of his employer. He would not go back return to work for that client, which resulted in him being first threatened with dismissal and then actually dismissed.

He claimed that the threat of dismissal was an unlawful detriment and that he was automatically unfairly dismissed. However, he faced a problem. For his claims to succeed he had to demonstrate that he had refused to comply with a requirement imposed on him in breach of the WTRs. The tribunal decided that, on the precise facts, Mr Pazur had not clearly refused to comply. He had in fact not complied, but had not explicitly said he was refusing to do so. Tough on Mr Pazur, would you not say? He thought so, and appealed.

Unfortunately, the EAT supported the tribunal. Refusal required more than mere non-compliance. I must say I find this confusing. When my children would not go to bed on request when they were younger, I tended to interpret a continued gaze at the TV as refusal. Now I discover it was not, except on the occasions they turned to me and said ‘no, we are not going’. Pleasingly, Mr Pazur succeeded in his claim on a different basis. (Pazur v Lexington Catering Services Limited UKEAT/0008/19.)

Is vegetarianism a belief under the Equality Act 2010

Carnivores can calm down for the moment – a tribunal has concluded that it is not.

Mr Conisbee was employed for approximately five months before resigning. He alleged discrimination on the ground of religion or belief contrary to the Equality Act 2010, with his belief being vegetarianism.

At a preliminary hearing, an employment tribunal held that this belief did not qualify for protection. Although it was genuinely held and was worthy of respect in a democratic society, it failed to meet the other legal hurdles for protection. Specifically:

  • it did not concern a weighty and substantial aspect of human life and behaviour: rather, it was a life style choice and, in Mr Connisbee's view, a belief that the world would be a better place if animals were not killed for food
  • neither did not attain a certain level of cogency, seriousness, cohesion and importance in that vegetarians adopt the practice for many different reasons (lifestyle, health, diet, concern about the way animals are reared for food and personal taste). Interestingly, on this point, the tribunal contrasted veganism, pointing out that the reasons for being a vegan tend to be largely the same
  • finally, it did not have a similar status or cogency to religious beliefs.

I don’t think we have heard the last of this issue. (Conisbee v Crossley Farms Ltd and others ET/3335357/2018).

The information and any commentary contained in this newsletter are for general information purposes only and do not constitute legal or any other type of professional advice. Darryl Evans and Evans Employment Law Limited do not accept any and, to the extent permitted by law, exclude all, liability to any person for any loss which may arise from relying upon or otherwise using the information contained in this newsletter. If you have a particular query or issue you are strongly advised to obtain specific, personal advice and not to rely on the information or comments in this newsletter.

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