HR Two Minute Monthly: disability discrimination; unfair dismissal; territorial scope and redundancy

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Summary: Our February update includes several useful cases on unfair dismissal, a consideration of the duty to make reasonable adjustments when a disabled employee has no immediate prospect of returning to work, and an EAT decision on the statutory employment rights of the employee of a UK organisation who worked remotely from Australia.

Disability Discrimination – when is the duty to make reasonable adjustments triggered?

In Doran v Department for Work and Pensions, an employee was dismissed for sickness absence. The claimant alleged that the employer had failed to make reasonable adjustments for her disability when it had required her to give a fixed return date and return to her previous role, either immediately or following a four week phased return period.

The EAT found that the duty to make reasonable adjustments had not been triggered. Miss Doran had neither informed the employer of a return date nor given any other sign that she would be returning to work at any particular time. While there is no absolute principle that the duty only arises once the employee indicates that they are able to return to work, the duty was not triggered in this case.

It is worth noting that this claim was brought under the Disability Discrimination Act 1995. Under the Equality Act 2010, claims in relation to dismissal in these circumstances are likely to be framed as discrimination arising from disability.


Jurisdiction and remote working

When assessing whether UK employment law applies to an employee who is not based in the UK, the key question is whether the employment has a sufficiently close connection with the UK. Case law sets out several categories of worker to whom this applies, for example expatriate workers.

In Lodge v Dignity & Choice in Dying and another, the EAT was asked to consider jurisdiction in relation to an Australian employee of a British company. The employee lived in Australia and worked remotely for the employer, who is based in London. The EAT reversed the decision of the Tribunal. Although the employee was not “posted” to Australia, her arrangements could be classed as a sub-set of the expatriate worker category and she therefore had the right to bring unfair dismissal and whistleblowing claims in the UK. Two other facts given weight by the EAT were that a grievance raised by the employee was dealt with by the employer in London and that both parties agreed she did not have a cause of action in Australia. This is helpful clarification, particularly as remote working becomes increasingly common.


Exchange of emails held to constitute a binding settlement

In Bieber and others v Teathers Limited (In Liquidation), the parties had agreed settlement terms by email in a short time frame to avoid incurring a tranche of counsel’s fees. When the defendant sought to introduce a term about third party claims in the subsequent settlement agreement, the claimant argued that the email exchange constituted a binding settlement and no formal agreement was necessary. The High Court was asked to consider whether an exchange of emails between solicitors could constitute a binding settlement agreement in these circumstances.

The High Court found that it could. The exchange of emails was stated to be “in full and final settlement” of the claim and was not expressed to be “subject to contract” as is usually the case when a further formal settlement agreement is intended. The issue the defendant sought to include in the draft settlement agreement it subsequently produced had not been raised during the course of negotiations so there was no evidence that it formed part of the settlement reached in the emails. On that basis, the High Court found that the settlement negotiation had not been intended to be a two-stage process and a binding agreement had been reached by way of the email exchange.


Redundancy and mobile employees

The EAT has considered whether the closure of one location at which employees work can amount to a redundancy situation where the employees are not permanently based at one workplace. In EXOL Lubricants v Birch and another, the employees were HGV drivers and were permitted to park their vehicles overnight at a location close to their homes. They then drove from this location to the employer’s main depot at the beginning of their working day. The employer decided to withdraw the parking facility and when the employees did not agree to the new arrangement, they were dismissed on grounds of redundancy.

The EAT agreed with the Tribunal that this did not amount to a redundancy situation. As the employees worked from more than one location, it was necessary to look at their contracts of employment and their connections with any particular workplace, to assess where their place of employment was. In this case, the place of employment was clearly the main depot, not the overnight parking facility. Since the need for drivers at the depot had not diminished, the employees were not redundant. The facts in this case are slightly odd, but it does provide useful guidance for employers who are considering making redundant mobile employees.


Fit For Work

The Department for Work and Pensions has published three guides to the forthcoming Fit For Work service. This service is intended to complement existing occupational health arrangements and is being introduced on a phased basis during the first half of 2015. The guidance notes are aimed at employers, GPs and employees respectively.


TUPE: pre-transfer dismissal and internal appeals

If an employee is dismissed and invokes a contractual appeal process, a possible outcome is that the original decision will be reversed. In that situation, the contract is revived and the employee is treated as if the dismissal never took place.

In Salmon v (1) Castlebeck Care (Teesdale) Ltd (in Administration) (2) Danshell Healthcare Ltd & Ors, the EAT considered this issue in the context of an intervening TUPE transfer. Mrs Salmon was dismissed prior to a TUPE transfer. She appealed and the appeal was heard after the transfer. The appeal officer decided that the dismissal decision was unsafe but Mrs Salmon was not given her job back. She brought unfair dismissal proceedings against both Castlebeck and Danshell. The Tribunal found that Danshell were not liable for the dismissal because although the appeal was successful, no decision was taken to reinstate her and she was not told of the appeal outcome.

The EAT found that Danshell was liable, reversing the Tribunal’s decision. Where the contract refers to a right to appeal, there is no need for a further decision to reinstate the employee, nor does the appeal outcome need to be communicated to be effective. Once an appeal has overturned the original dismissal, the employment contract is automatically revived. This applies to all dismissal cases unless there are contractual provisions to the contrary.

In this case, the revival of the employment contract meant that the employee was employed immediately before the transfer and so Danshell was liable for her subsequent dismissal. In cases where there is no transfer, however, it is still important for employers to appreciate the implications of a successful appeal. In particular, since the employee’s contract will be revived as if the dismissal never took place, the employee will be entitled to be paid for the period between the dismissal and the appeal finding. In protracted disciplinary proceedings, this can be a significant amount of money.


Part-time workers and comparators

In order for part-time workers to compare themselves against full-time workers for a claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, they must be engaged in the same or broadly similar work. This issue was considered by the House of Lords in 2006. It has recently been given further consideration by the EAT.

In Moultrie and Others v Ministry of Justice, fee paid tribunal members sought to compare themselves with salaried regional tribunal members. The former’s role was 85% the same as the latter, but they were not entitled to receive a pension. The EAT (upholding the Tribunal’s decision) held that it was correct to focus not only on the 85% similarity but also on the 15% of the role that was different. The extra work undertaken by the salaried members was sufficiently important to mean that the roles were not the same or broadly similar.

While decisions on this issue will always be fact specific, it is useful for employers as it confirms that it is not just the similarities but also the importance of any differences in roles that should be taken into account when assessing whether a full-time employee is an appropriate comparator.


Unfair dismissal – fairness when more than one incident leads to dismissal

When assessing if a dismissal is fair, the Tribunal is required to consider the employer’s actual reason for dismissal, decide whether it falls within one of the potentially fair statutory reasons for dismissal and then decide whether the decision to dismiss for that reason was fair in the circumstances.

In Robinson v Combat Stress, the EAT considered how this applies to a dismissal which was the result of the cumulative effect of three separate incidents. It found the Tribunal had erred in its approach, in that it considered each of the three events separately, discounted the procedural defects in one and concluded that one incident alone was sufficient to justify a dismissal for gross misconduct. This approach was flawed. In fact, the employer had dismissed for the three incidents as a whole, so the correct question was whether the employer had acted within the range of reasonable responses when dismissing for the cumulative effect of the three incidents taken together. This confirmation is useful for employers, particularly in cases where there are a number of small issues with an employee, none of which are sufficient on their own to justify dismissal. It is also a warning, however, that a procedural defect in relation to one incident may render the dismissal unfair if the employer has not treated the other incidents, on their own, as sufficient to warrant dismissal.


Industrial action – for how long is a ballot valid?

It is a requirement of lawful industrial action that the first strike takes place within four weeks of the ballot. However, once industrial action begins, the ballot remains valid for subsequent action as long as there is no substantial interruption. In Westminster Kingsway College v University and College Union, the union sought to rely on a ballot from November 2013 in relation to a strike called for October 2014. A ballot in September 2014 failed to comply with the statutory requirements, but the union contended that the earlier ballot was still valid, as the union had expressly stated in communications with members that the 2013/2014 pay claim had not been withdrawn.

The High Court granted the employer an interim injunction preventing the union from relying on the November ballot. The High Court’s decision in this case, although fact specific, confirms that when deciding whether there has been a substantial interruption, the key issue is whether a reasonable member would consider that the action had come to an end, even if the dispute itself continued. That was found to be the case here, perhaps unsurprisingly given that the only action under the ballot took place in December 2013 and the union had notified its members that there were no plans for further strike action in January or February 2014. The High Court held that the union could not preserve its position in relation to further strikes under the first ballot, even though it had made clear that the original issue had not been withdrawn.

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