EmpLaw Newsletter April 2018

April 2018

Here is our latest on-line Employment Law newsletter which will assist in keeping you informed of various current employment issues. The content of this newsletter is provided for general information purposes only and it is not intended to be legal or other professional advice. It should not be considered a substitute for taking professional advice in relation to specific circumstances. No responsibility can be accepted by Assicurazioni Generali S.p.A. for any action taken as a result of the information provided.

The role of Human Resources in disciplinary proceedings continues to be a hot topic. Managers conducting a disciplinary investigation or hearing may need advice from HR. However, HR should confine their advice to technical matters such as the law and procedure. If HR try and influence the decision-maker or persuade the manager to dismiss, then this may make the dismissal unfair. 
This is illustrated in the case of Mr Ramphal who was unfairly dismissed from the Department for Transport, when an HR officer persuaded the dismissing manager to change his view of the sanction from a final written warning to dismissal. 
This does not mean that HR can never be the decision-makers in a case. Some smaller businesses rely on HR professionals to conduct investigations and even disciplinary hearings and appeals.  The trick is to make sure that the role of HR is clearly defined. If an HR professional conducts the investigation for example, then they should not advise the manager on the disciplinary hearing or appeal. The procedure should be fair and transparent. The employee must be given the opportunity to put his case to the true decision-maker. 
In a case involving Arnold Clark, different members of HR were the decision-makers at the investigation, dismissal and appeal stages. This was acceptable. However, the dismissal of Mr Spoor was still unfair, as the HR professional who conducted the disciplinary hearing did not take account of Mr Spoor’s long service (42 years) and exemplary record when dismissing him for physical violence.
  1. Disability discrimination – definition of cancer
  2. Expectation to work long hours
  3. Knowledge of disability
  4. Redundancy bumping
  5. Dismissal of pregnant employee
  6. Duty to disclose relationships
  7. Sexual harassment at work
  8. And finally…
Cancer is listed as a disability under the Equality Act 2010, providing sufferers from protection from discrimination. Employers must also make reasonable adjustments to a cancer sufferer’s job to remove any disadvantage they suffer as a result of their cancer. The Employment Appeal Tribunal has now held that pre-cancerous lesions will also amount to a disability. 
Ms Lofty suffered from a pre-cancerous lesion on her cheek which could result in a malignant melanoma. Cancerous cells had been found in the top layer of Ms Lofty’s skin and the lesion was a type of the earliest stage of skin cancer. She was absent from work for surgery and related health issues. Her employer Mr Hamis eventually dismissed her. Ms Lofty raised an employment tribunal claim for unfair dismissal and disability discrimination. However, the employment tribunal ruled that as the diagnosis was ‘pre-cancerous’ she did not suffer from cancer and was therefore not disabled under the legislation.
Ms Lofty’s appeal was successful. The Equality Act only requires an employee to show they have cancer for the legal protections to apply. The medical evidence showed that there were cancerous cells in the top layer of skin and this was enough for her to be considered disabled under the law. [back to top]
As an employer you may require your employees to work longer hours from time to time to meet business needs. If you have a disabled employee who cannot work these hours, you may have to make reasonable adjustments under the Equality Act 2010 and allow the employee to work a shorter shift. However, do you still have that duty if there is no contractual requirement to work the longer hours and only an expectation that the employee does so?
Mr Carreras worked as an analyst for a brokerage and research firm, United First Partners Research. He initially worked very long hours from around 8am to 11pm to cover the US markets.  Unfortunately, Mr Carreras was involved in a severe cycling accident and became disabled as a result. He returned to work but suffered dizziness, fatigue and headaches. He had difficulty concentrating and was unable to work the same hours as before. After about a year Mr Carreras was asked to work later in the evenings and when he agreed, an expectation developed that he would do so. Mr Carreras resigned and claimed constructive dismissal and disability discrimination.
Mr Carreras claimed that his employer failed to make reasonable adjustments for him in respect of his disability in requiring him to work the unsuitable hours. The company argued that there had been no requirement for Mr Carreras to work the long hours and so no duty to make reasonable adjustments arose. 
The Court of Appeal ruled that there was a requirement to work the long hours. It didn’t matter that Mr Carreras had not been coerced or forced to work them. A strong form of request or a repeated pattern of requests could amount to a requirement which Mr Carreras felt under pressure to accept. His employer had a duty to consider reasonable adjustments as a result. [back to top]
Do you have a duty to make reasonable adjustments under the Equality Act 2010 for an employee who believes he has a disability when you have no such evidence? 
Mr Toy worked as a probationery police officer for Leicestershire Police. His employer had serious concerns about Mr Toy’s performance during his probation and held a meeting with him to consider his employment. At the end of that meeting Mr Toy mentioned that he might be suffering from dyslexia. This had never been mentioned before in work or training. No evidence was presented in support of this remark. Mr Toy was dismissed.
Mr Toy raised an employment tribunal claim for disability discrimination and a failure to make reasonable adjustments. He was later found to be dyslexic. He argued that his employer knew or should have known that he was dyslexic at the time it dismissed him. It should have made reasonable adjustments rather than dismissing him. 
Mr Toy was unsuccessful in his claim and his subsequent appeal. The Employment Appeal Tribunal ruled that just because he had a belief that he was dyslexic did not mean that the police force should have known that he was dyslexic. Raising the possibility of the disability in the dismissal process was not enough. Mr Toy was not clear or certain that he had dyslexia. This meant that the police force did not have a duty to make reasonable adjustments for Mr Toy. [back to top]
A redundancy arises when there is a reduction in the employer’s requirements for employees to carry out work of a particular kind. Sometimes an employee whose role is redundant can be redeployed into another role in the organisation. The occupier of that second role can be fairly dismissed instead – even though their role is not redundant. This process is known as ‘bumping.’
Bumping was discussed in a recent case involving Mr Mirab who was the sales director for Mentor Graphics (UK) Ltd. The employer no longer had a requirement for the role of sales director and made Mr Mirab redundant. 
The tribunal found that the dismissal was a fair redundancy dismissal. The company had looked for alternatives to dismissal and was not required to consider bumping another employee from the more junior role of account manager because Mr Mirab had not raised this as a possibility. 
However, the Employment Appeal Tribunal decided that the employee does not need to specifically raise the possibility of bumping for an employer to consider it. Conversely, an employer does not always have to consider bumping for the dismissal to be fair. Fairness will always depend on the facts of the case and whether the employer fell within the range of reasonable responses open to the employer in the circumstances. [back to top]
Do you have to reconsider a decision to dismiss an employee if you later find out she is pregnant? Ms Thompson was employed by Really Easy Car Credit, to do online telesales. She had worked there for a short time before discovering she was pregnant. During that time her performance was described as “average at best” and her employer raised various conduct issues with her. Ms Thompson took a day off sick. Unknown to her employer she went to hospital for a scan to find out whether she had miscarried. 
On Ms Thompson’s return to work an incident occurred between her and a customer which led to her being spoken to by her manager. She became very upset during this meeting. Her employer decided to dismiss her on 3 August 2016 as they were tired of her “emotional volatility” and thought that her conduct and performance were not good enough. A letter was drafted that day, but it was not posted out as they decided to invite her in for a meeting. Ms Thompson was still within her probationary period.
Meanwhile Ms Thompson spoke to her manager on 4 August and told him that she was pregnant. On 5 August Ms Thompson returned to work. She was handed the prepared dismissal letter and explained the reasons for her dismissal, emphasising that it was nothing to do with her pregnancy. 
Ms Thompson brought claims for unfair dismissal and pregnancy discrimination. She argued that the reason given for her dismissal was false. She said that the real reason was that she was pregnant, which her employer had found out the day before she was dismissed. The Tribunal found that the decision to dismiss was made before her employer knew of her pregnancy. The Employment Appeal Tribunal decided that there was no obligation on her employer to reverse the decision to dismiss once it discovered her pregnancy. [back to top]
The Supreme Court has decided that a head teacher, Ms Reilly was fairly dismissed for gross misconduct, for failing to disclose to her school’s governing authority the fact that she had a close relationship with a sex offender.  The teacher argued that she was under no duty to disclose the relationship. There was no clear clause in her contract requiring her to report such a relationship. She did not live with the offender, although they owned a house together as an investment.  They went on holiday together. She was a named driver on his car insurance. They were not partners, but their relationship was thought to be more than a financial one. 
The Supreme Court (and every tribunal and court before that) disagreed with Ms Reilly. It ruled that she was in breach of her contract by failing to report the relationship. As a head teacher with safeguarding responsibilities, she should have realised that her association with this man, posed a risk to the children in her care. She had a duty to inform the school, so that protective steps could be taken. It was not for the teacher to decide whether her relationship gave rise to a risk of harm. There were many ways in which the offender could have used his friendship with Ms Reilly to gain access to the school’s pupils.
Sandwell Metropolitan District Council and the school in question had fairly dismissed Ms Reilly. Her refusal to accept that she had been in breach of her duty suggested a continuing lack of insight making it inappropriate for her to continue to run the school. [back to top]
The Equalities and Human Rights Commission has issued a powerful new report called Turning the tables: ending sexual harassment at work. The report shares evidence from employers and employees of sexual harassment in the workplace and makes recommendations on how to stop it.
In the report the Commission identifies failures by employers to set out policies on sexual harassment in enough detail, support victims, provide for fair and effective grievance processes or ensure those who make complaints will not be victimised as a result. 
The Commission makes a number of recommendations to the government. These include:
  • A legal duty on all employers to take reasonable steps to prevent sexual harassment in the workplace;
  • The introduction of a binding legal code of practice which employers must follow or see any compensation awarded against them in an employment tribunal increased by up to 25%;
  • Making it illegal to prevent disclosure of future acts of discrimination, harassment or victimisation in a contract or settlement agreement;
  • Restrict the use of confidentiality clauses to stop victims disclosing past acts of harassment; and
  • Making it easier for people to bring sexual harassment claims. For example by extending time limits and making it easier to find out relevant information from an employer. [back to top]
Scotland Yard reportedly spent more than £5,000 on disciplinary procedures after a policeman was accused of stealing a tin of biscuits. PC Hooper was accused of taking biscuits from a tin which belonged to his colleague. The policeman said that he had intended to share them and offered to replace the tin. After a three-day disciplinary hearing and 7 months on restricted duties, the panel found the officer had no case to answer. [back to top]