Equality

Court of Appeal – May 2018 The Court of Appeal has ruled that it was disability discrimination to dismiss an employee for gross misconduct because his conduct was a consequence of his disability Facts This case relates to an incident in 2013 where Mr Grosset, an English teacher at the Joseph Rowntree school in York, showed an 18+ rated horror movie to a class of 15 year olds without gaining the appropriate consent. The employee, who suffered from cystic fibrosis, acknowledged that his…

Equality

This case reminds organisations of the need to consider the potential of a causal link between an individual’s disability and any incidents of misconduct. A failure to recognise these links may render organisations liable to claims of disability discrimination under section 15 of the Equality Act 2010. This also highlights the importance organisations must place in maintaining accurate personnel files on staff when senior management changes and to ensure any reasonable adjustments to support…

Equality

Employment Appeal Tribunal – May 2018 Was the payment of statutory shared parental pay to men and enhanced maternity pay to women an act of indirect discrimination? Facts The claimant in this case took a period of shared parental leave following the birth of his child lasting from 1 June 2015 - 6 September 2015. The employer paid the claimant the statutory rate of shared parental pay during his leave. However, the employer’s maternity leave and pay policy grants eligible employees an…

Equality

Employers offering enhanced rates of maternity pay to women but not enhanced rates of shared parental pay to men should be aware that this could result in indirect discrimination. However, more clarity is needed before a definitive answer can be provided. Employers should keep in mind that indirect discrimination can be objectively justified. Employers who act in this manner may want to consider amending rates for all forms of parental leave or ensure they have sufficient objective…

Terms and conditions , Termination

Supreme Court – April 2018 The Supreme Court has clarified when written notice of dismissal becomes effective in the absence of an express contractual term. Facts This case concerned an associate director in the provision of community services for two NHS primary care trusts. Following a merger with the local NHS foundation trust, she was informed by letter that she was at risk of redundancy. She was offered alternative employment, but rejected the posts on the grounds they were at a…

Terms and conditions , Termination

This decision confirms that, in employment cases, the common law rule that written notice is given when the letter is delivered to the recipient’s address does not apply. Instead, in the absence of an express contractual provision, written notice runs from the date the letter is actually received and read by the employee, or from the date they had a reasonable opportunity to read this letter. Whilst clarifying the existence of the implied term, the judgment does raise a number of issues which…

Terms and conditions , Termination

This decision confirms that, in employment cases, the common law rule that written notice is given when the letter is delivered to the recipient’s address does not apply. Instead, in the absence of an express contractual provision, written notice runs from the date the letter is actually received and read by the employee, or from the date they had a reasonable opportunity to read this letter. Whilst clarifying the existence of the implied term, the judgment does raise a number of issues which…

Terms and conditions , Termination

Supreme Court – April 2018 The Supreme Court has clarified when written notice of dismissal becomes effective in the absence of an express contractual term. Facts This case concerned an associate director in the provision of community services for two NHS primary care trusts. Following a merger with the local NHS foundation trust, she was informed by letter that she was at risk of redundancy. She was offered alternative employment, but rejected the posts on the grounds they were at a…

Dispute resolution

Employment Appeal Tribunal – April 2018 Was an application to amend a direct discrimination claim to include indirect discrimination a mere re-labelling? Employment tribunals have case management powers to exercise their judicial discretion and amend claims. Relevant considerations for tribunals will include the nature of the amendment, relevant time limits, the time and manner of the amendment application and the hardship involved in refusing or granting the amendment. Facts Patka is…

Dispute resolution

This decision highlights the importance for claimants to understand their claim before commencing proceedings, especially where there are a number of potential legal arguments which overlap the same facts but apply different legal principles eg direct and indirect discrimination. When deciding whether to allow amendment applications, the tribunal will look at the balance of hardship eg which party will suffer the most by either refusing or granting the amendment. This will consider further…

Dispute resolution

Employment Appeal tribunal – April 2018 Was a tribunal correct to strike out a claim once they were aware discussions had taken place with a journalist during a break in proceedings? The Employment Tribunal Rules entitle tribunals to strike out all, or part of, a claim where either party to the claim has conducted proceedings in an unreasonable, scandalous or vexatious manner. Facts Chidzoy had worked as a journalist for nearly 30 years. She made tribunal claims for whistleblowing, sex…

Dispute resolution

The EAT decision highlights the importance of complying with tribunal warnings as the evidence adduced at tribunal is required to be that of the witness, untainted and uninfluenced by others to ensure the case can be determined fairly. Providing witness evidence at tribunal can be a stressful and emotional time for individuals. Before a tribunal starts, employers can speak to their witnesses to ensure they understand the tribunal process and are prepared for this, including how they should…

Termination

High Court – April 2018 What duty of care does a reference writer owe when they include facts and opinions in a reference that are based on a previous investigation? Claims of negligent misstatement, a tortious claim, can be made against ex-employers if they provide an inaccurate reference to a potential employer. When writing references, the employer owes a duty of care to the employee. Previous cases have shown that this duty is to exercise reasonable skill and care to provide a true, fair…

Termination

There is no obligation on an employer to provide a reference, however, where they do provide one either voluntarily or under a company policy, the duty to take reasonable care to provide a fair and accurate reference will apply. This decision highlights that reference writers need to ensure, in advance of writing the reference, that any negative opinions which will be included have been formed on a proper and legitimate basis. To do so, the reference writer may be required to review relevant…

Family friendly and flexible working rights , Equality

Since this is an Employment Appeal Tribunal decision, it is binding on employment tribunals who may have received an influx of discrimination claims based on similar facts when the original decision was released (which can be read here). This decision confirms that EU law gives special protection to women who have given birth, justifying offering women enhanced pay during maternity leave. Shared parental leave, on the other hand, is available to both parents, who may be of the same sex, and…

Family friendly and flexible working rights , Equality

Employment Appeal Tribunal – April 2018 The EAT has confirmed there is no sex discrimination when an employer offers an enhanced pay rate during maternity leave, whilst only providing fathers with statutory pay under shared parental leave policies. Statutory shared parental pay is paid at the rate set by the government each April, currently £145.18 for 2018/19, although some employers may choose to offer enhanced pay. Facts The claimant in this case took two weeks’ paternity leave…

Family friendly and flexible working rights , Equality

Since this is an Employment Appeal Tribunal decision, it is binding on employment tribunals who may have received an influx of discrimination claims based on similar facts when the original decision was released (which can be read here). This decision confirms that EU law gives special protection to women who have given birth, justifying offering women enhanced pay during maternity leave. Shared parental leave, on the other hand, is available to both parents, who may be of the same sex, and…

Family friendly and flexible working rights , Equality

Employment Appeal Tribunal – April 2018 The EAT has confirmed there is no sex discrimination when an employer offers an enhanced pay rate during maternity leave, whilst only providing fathers with statutory pay under shared parental leave policies. Statutory shared parental pay is paid at the rate set by the government each April, currently £145.18 for 2018/19, although some employers may choose to offer enhanced pay. Facts The claimant in this case took two weeks’ paternity leave…

Termination

Supreme Court – March 2018 Was a dismissal for failing to disclose close relationship with sexual offender within the band of reasonable responses? As well as showing they have a fair reason to dismiss and have followed a fair procedure, under s98(4) Employment Rights Act 1996 employers also have to show that, in all the circumstances, dismissal was a reasonable response. Parliament has previously introduced the Childcare Act 2006 and subsequent regulations which disqualify individuals from…

Termination

This case highlights that employees may be subject to a duty to disclose information to their employer where this is required to allow them to meet their contractual duties, such as a duty to assist others with safeguarding. It is vital that employers include duties that apply to employees within the contract of employment or other contractual documentation to ensure employees act in accordance with these and, where they don’t, to allow appropriate action to be taken. Interestingly, the…

Recruitment and selection, Equality

Court of Appeal – March 2018 Was it unlawful discrimination to refuse to grant a licence to a priest because his same sex marriage was contrary to Church of England doctrine? The Marriage (Same Sex Couples) Act 2013 introduced lawful same sex marriages. The Canons of the Church of England set out that marriage is the union of one man with one woman. Following the introduction of the legislation, a statement of Pastoral Guidance was distributed which confirmed the Canon remained part of…

Recruitment and selection, Equality

This decision confirms that employers can rely on the religious occupational requirement exception outlined in Schedule 9 paragraph 2 of the Equality Act even where they are not a religious organisation. The focus, as the Court of Appeal highlighted, is whether the employment is for the purpose of an organised religion. The employer will have to go on to show the requirement is necessary to comply with the doctrines of the religion, although this decision confirms that doctrine includes the…

Recruitment and selection, Equality

Court of Appeal – March 2018 Was it unlawful discrimination to refuse to grant a licence to a priest because his same sex marriage was contrary to Church of England doctrine? The Marriage (Same Sex Couples) Act 2013 introduced lawful same sex marriages. The Canons of the Church of England set out that marriage is the union of one man with one woman. Following the introduction of the legislation, a statement of Pastoral Guidance was distributed which confirmed the Canon remained part of…

Recruitment and selection, Equality

This decision confirms that employers can rely on the religious occupational requirement exception outlined in Schedule 9 paragraph 2 of the Equality Act even where they are not a religious organisation. The focus, as the Court of Appeal highlighted, is whether the employment is for the purpose of an organised religion. The employer will have to go on to show the requirement is necessary to comply with the doctrines of the religion, although this decision confirms that doctrine includes the…

Termination

Employment Appeal Tribunal – February 2018 Was a company required to carry out collective consultation before being placed in compulsory liquidation? Facts Keeping Kids Company (KKC) was a charity that relied heavily on substantial donations and corporate sponsorship. In 2014, the charity was encountering significant financial difficulties and the government provided funding to the charity, subject to conditions, in early 2015 to help stabilise KKC. Financial difficulties continued,…

Termination

This decision demonstrates that the obligation to collective consult will be triggered as soon as there is a clear proposal to dismiss 20 or more employees for redundancy, even where the proposal is subject to future events, such as funding applications, or where the specific roles at risk of the redundancy haven’t been identified. The case also highlights the narrow interpretation tribunals will give to the application of the special circumstances defence. It shows the special circumstances…

Equality

Court of Appeal – February 2018 Can an ‘expectation’ to work longer hours amount to a provision, criterion or practice under the Equality Act 2010? Employers have a duty under the Equality Act 2010 to make reasonable adjustments for disabled job applicants, employees and former employees. The duty can arise where a disabled person is placed at a substantial disadvantage by a ‘provision, criterion or practice’ (PCP) operating in the employer’s workplace. Facts Carreras worked as an…

Equality

This case highlights the concept of a “provision, criterion or practice” or PCP is wide and can potentially include an expectation that is prevalent within the workplace which puts the disabled employee at a substantial disadvantage when compared to non-disabled colleagues. The liberal interpretation of PCP could be further expanded on in the future. For example, will it be extended to expectations where there is no previous request from the employer, such as an expectation that they have to…

Equality

Employment Appeal Tribunal – March 2018 Does the condition of “cancer” in the Equality Act 2010 include “pre-cancerous” and “in situ cancer” diagnoses? Under Schedule 1 paragraph 6 of the Equality Act 2010, individuals are automatically deemed to fall within the statutory definition of ‘disabled’ where they are diagnosed with cancer, HIV and multiple sclerosis. Facts Lofty began working as a café assistant in September 2001 before transferring to the new organisation in 2015. Following…

Equality

This decision encourages employers to take caution before deciding whether “pre-cancerous” diagnoses will not be deemed as “cancer” under the legislation. Medical evidence and reports are likely to be needed to determine whether the employee has cancer. As individuals with cancer are deemed to be disabled from the point of diagnosis, it will not matter whether the first stage of cancer has progressed into later, more invasive stages. Instead, the question to ask is whether the employee has…