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Range of Reasonable Responses, February 2019

I'm currently whizzing around the country delivering lots of employment law updates. I don't know what other trainers include, but for me it is a day for telling interesting stories. We don't spend time talking about updated thresholds and other stuff that you can just look up on a government website. Instead we look at some of the weird and wonderful cases that the Tribunals and courts have been grappling with and see what we can learn from them.

There is always a balance to be struck between cases that are legally significant - that change or redefine aspects of employment law - and those cases that are simply an entertaining way of illustrating and explaining an employment law issue. For example in the current update I look at the issue of whether time spent on a sleepover shift should count towards minimum wage entitlement (good to see that the Supreme Court has now granted permission to appeal in Royal Mencap Society v Tomlinson Blake) and whether the suspension of a teacher was, from the start, a breach of the implied term of mutual trust and confidence (we're waiting for the Court of Appeal decsion in Agoreyo v Lambeth). But many of the cases I talk about will never make it into legal text books - or even the law reports. Some contain neat legal points and some are more general, but I though I'd share a selection of the current crop here. 

Talon Engineering Ltd v Smith


At one level this case simply says that the right not to be unfairly dismissed and the right to be accompanied at a disciplinary hearing are two separate things. An employer was found to have unfairly dismissed an employee whose representative was unavailable for the disciplinary hearing. The right to be accompanied allows for a five day postponement in those circumstances, but the closest date the representative could make was just under two week's later. The employer refused to postpone and went ahead in the employee's absence, which the Tribunal held to be unfair. The EAT upheld that decision stressing that just because the refusal to postpone was in compliance with the right to be accompanies, that didn't mean it was reasonable and that in the circumstances the employee could not be blamed for refusing to attend the hearing. 

There is lots to discuss here about when it is appropriate to postpone disciplinary hearings and what to do when an employee refuses to attend. But for me the elephant in the room is that the Tribunal focussed on the procedure that was followed in a case when the employee was dismissed for referring to a colleague as a 'knob head'. Granted she did that in an e-mail to a supplier - but even so! If everyone who referred to a colleague in this way were to be sacked, unemployment would sky-rocket. The serious point here is that the Tribunal focussed on the procedure that was followed rather than the substance of the decision to dismiss, which I think is symptomatic of where unfair dismissal law has gone wrong since it was introduced in the 1970s. 
 

Asda Stores Ltd v Raymond


It's the glamour of employment law that makes it so interesting! In this case a delivery driver was dismissed for urinating in a shopping centre delivery yard. His argument was that he was overtaken by an urgent need - and did not have time to find the nearest toilet. He instead relieved himself in a 'discreet part of the yard' - but not so discreet that he avoided the CCTV cameras! 

His dismissal was held to be unfair and also to amount to disability discrimination (his sudden need to urinate being related to his diabetes). What made the dismissal unfair was the refusal of the manager to investigate the full circumstances of the case, once the basic fact that the employee had urinated in a delivery yard was established. It is important that an investigation does not simply gather the evidence that supports a decision to dismiss. It must be neutral exercise that looks at the whole of the circumstances - including any evidence that may support the employee. Ignoring the employee's argument that there was no-where else for him to go and that he had a medical condition was a fatal mistake. So was insisting that the misconduct was a health and safety issue - without being able to identify just what health and safety regulations were being breached by a delivery driver having a sneaky wee in the corner of a yard. 

Cameron v East Coast Mainline


This is a case about the difference between unfair and wrongful dismissal. It concerned the dismissal of a 'shunter' employed by a train company. He had allowed a train to proceed which had then gone on to 'brush' a driver working in the yard. Being brushed sounds like such a gentle thing, but I suspect that in the context this was a terrifying and potentially fatal experience. 

The Tribunal found that the dismissal was fair - but also dismissed his claim for wrongful dismissal. The EAT pointed out, however that these were two different claims turning on two separate issues. Unfair dismissal is a statutory claim and depends on whether the employer has behaved reasonably. Wrongful dismissal is a breach of contract claim and depends on whether the employer was entitled to dismiss without notice. That in turn depends on whether the employee is guilty of gross misconduct. In this case the Tribunal had found that the employer had reasonably concluded that what the employee did was gross misconduct but had not made a finding as to whether they were right to do so. 

This is a neat illustration of the principle that an employee can be technically innocent of wrongdoing but still be fairly dismissed if the employer reasonably believes they are guilty. But if the Tribunal believes that they are innocent then the dismissal will be wrongful - even if it is fair!  In such a case the employee will at least get some compensation - although damages will be limited to the notice period (equivalent to a payment in lieu). 

Dunn v Secretary of State for Justice


I have seen a real spike in the number of s.15 disability discrimination cases coming through the Tribunals in recent years. Section 15 of the Equality Act covers unfavourable treatment because of something arising in consequence of the claimant's disability and which the employer cannot show to be a proportionate means of achieving a legitimate aim. That is quite a mouthful and it is difficult to break down into a more catchy label - so 's.15 discrimination' it is.

The important thing is to follow the words of the section carefully and logically. This is not 'disability-related' discrimination. The fact that an employee has been badly treated and the issue of disability is in the mix somewhere does not mean that discrimination has taken place. You need to identify the unfavourable treatment, look at the reason for it and then ask whether that reason arises 'in consequence' of the disability. This case illustrates the approach. The  employee was put through an ill-health retirement process that was slow, inefficient, bureaucratic and plagued with error. This was held by the Tribunal to be discrimination because the whole situation was connected with the fact that the employee was disabled. The Court of Appeal agreed with the EAT that this was the wrong approach. There was no suggestion that the process was flawed because the employee was disabled. The unfavourable treatment was because of administrative incompetence, but that incompetence did not arise in consequence of the disability.

County Durham and Darlington NHS Foundation Trust  v Jackson


One of the things we always talk about in an employment law update is the duty to make reasonable adjustments. Its a tricky issue because frankly different tribunals can take a different view of what adjustments are reasonable. But this case is a useful reminder that there needs to be a clearly identified adjustment that the employer has failed to make. How hard the employer has tried to come up with an adjustment is not the issue. The employee in this case was training to be a consultant anaesthetist, but developed a latex allergy which limited the equipment she could use and the environment she could work in. No solution to the problem was found and the Tribunal held that there had been a failure to make reasonable adjustments because the employer had not done enough to investigate matters and that there must have been some way of allowing her to continue her training.

This decision was overturned by the EAT. A failure to make enquiries or search for solutions was not in itself a failure to make reasonable adjustments.  The Tribunal had failed to identify the specific step that the employer should have taken, but didn't, that would have had the effect of removing the disadvantage caused to the employee by being required to work with latex. 

City of York Council v Grosset


To be fair, this is a highly significant case and if I were the employer I would want to take it to the Supreme Court. But I wanted to include it in my miscellany because the story is just so interesting. The employee was a teacher  dismissed for showing the highly inappropriate film Halloween to a group of vulnerable teenagers (some of whom had a history of self harm). The Tribunal found that the dismissal was fair based on what the employer knew at the time, but also held that it amounted to s.15 discrimination as the reason for dismissal arose from the employees disability of cystic fibrosis.

The link between cystic fibrosis and showing a horror film to children will not leap out at you. But the Tribunal accepted medical evidence - not available to the employer at the time of dismissal - that the employee's condition left him less able to cope with some of the additional pressures placed on him by the employer and for which he was not given adequate support. The increased stress he suffered ultimately led to his major lapse in judgment in showing the film. This is quite an attenuated link between the disability and the reason for the unfavourable treatment. The key legal point, however, is that in a s.15 claim the employer needs to be aware of the disability - but does not need to realise how it has led to the issue that caused the unfavourable treatment. It also clearly shows that the test for justification in a disability discrimination case is more stringent than the test of reasonableness in a case of unfair dismissal.

Parish Notices


If spending a day (or half a day) talking about the issues raised by cases like these sounds useful to you then do get in touch via my website https://darrennewman.org/. Bear in mind that content is changing all the time as new cases come in and older cases are retired. Each update is also tailored to needs of the client so we don't spend time looking at cases that aren't going to be useful for you. There is nothing dry or dull about an employment law update - it's always an entertaining and useful session. 

My next public course will be for East Midlands Councils on 13 March - and I'm also looking forward to speaking on Reasonable Adjustments at the  Employment Law Group conference in Dundee on 1st March. Towards the end of March I will be doing another Webinar for XpertHR - this time on dealing with employee absence. I think it will be based on a question and answer format, which always keeps me on my toes. So look out for details which should be published soon.

That's all for this month - thanks again for subscribing!

Darren

 
Copyright © 2019 Darren Newman Employment Law Ltd, All rights reserved.


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