Issue 16 - 11th September 2006

Monday 11 September 2006

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Cases

Disability discrimination and sick pay

O’Hanlon v The Commissioners for HM Revenue & Customs UKEAT/0109/06/MAA
A disabled employee exhausted her sick pay due to disability-related absence and claimed a failure to make reasonable adjustments and disability-related discrimination. The EAT held the correct comparators in this case were those who were not disabled and did not as a consequence have illnesses of a length which denied them the right to have full pay. Once that comparison identifies a substantial disadvantage, the onus will be on the employer to show he has made reasonable adjustments which is judged objectively. In relation to disability related discrimination the Tribunal must find the subjective reason why the employer acted as he did and that must be a disability-related reason. In the present case the EAT held that the non-payment of sick pay put the employee at a substantial disadvantage despite the fact the policy was applied to all alike in the same manner. However the Tribunal was entitled to find that the employer had made reasonable adjustments to enable the Claimant to return to work and alleviate the impact on her salary and it was not reasonable to expect them simply to pay the salary in full.

It held that only in exceptional circumstances would the giving of higher sick pay than would be payable to a non-disabled person be considered necessary as a reasonable adjustment.

The decision in Meikle v Nottinghamshire CC [2005] ICR 1 was distinguished on the basis that in that case it was claimed that the failure to make adjustments had caused the excessive sickness absence which led to the cut in pay and therefore was not an independent adjustment.

In relation to less favourable treatment the EAT held the decision in London Clubs Management v Hood [2001] IRLR 719 turned on its own facts and only applies to claims for sick pay and not a claim for full pay, or full pay/alternatively sick pay. There was less favourable treatment in the present case as non-disabled employees would not have had such lengthy absences. Where policies are applied the reason for the treatment is not the application of the policy but the existence of the set of facts which caused the policy to bite in the particular case. http://www.employmentappeals.gov.uk/Public/Upload/06_0109ResfhRCMAA.doc

Race discrimination

Aziz v Crown Prosecution Service [2006] EWCA Civ 1136
The Court of Appeal upheld the decision of the Tribunal, overturning that of the EAT. It held that where serious allegations had been made against the Claimant of misconduct on the basis of hearsay evidence alone, failures by the employer to follow its own disciplinary code including making adequate preliminary investigations into the allegations before suspending her was a detriment.  The Court of Appeal
emphasised that as a requirement of fairness and good employment practice disciplinary proceedings should not be initiated unless the suspicion of misconduct is based on reasonable grounds. In this case the Employment Tribunal was entitled to come to the view that the CPS knew it was not complying with its own code and therefore to draw the inference that the less favourable treatment they have found was on racial grounds. http://www.bailii.org/ew/cases/EWCA/Civ/2006/1136.html

Grievance procedures and time limits

Martins v Castlehill Housing Association Ltd & Bissett UKEATS/0022/06/RN & UKEATS/0023/06/RN
The Claimant claimed unfair dismissal, race discrimination, disability discrimination and holiday pay against her employer. She also named a colleague as second respondent in the race discrimination claim. She had sent a grievance letter to her employer about the discrimination but not to the colleague. The ET1 was submitted after the three month statutory time limit but within the extension period allowed by regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004.

The second respondent argued that the claim against her was out of time as the extension under regulation 15 did not apply to claims against employees, which are separate claims.

The EAT agreed. It held that under the discrimination statutes claims against an employer and an employee are separate claims. Under the Employment Act 2002 the grievance procedures do not apply to claims against fellow employees. The Claimant could not therefore have the benefit of the extension of time under the regulations. Any extension would have to be considered under the discrimination statute.

A grievance letter which complained that the employer’s refusal of her request to redirect correspondence to the Claimant’s representative had aggravated her depression was a sufficient description of a complaint of disability discrimination that is a failure to make reasonable adjustments. http://www.employmentappeals.gov.uk/Public/Upload/06_00220023fhAMRN.doc

Step 1 Disciplinary Letter

Draper v Mears Ltd UKEAT/0174/06/ZT

The Claimant was found in a company van about to drive after consuming alcohol.  The Tribunal found that to his knowledge, the company had a zero tolerance rule as to driving after consuming alcohol.  He was dismissed for misconduct, principally on the basis of his breach of that rule.  His unfair dismissal claim was rejected. The EAT held that, in the circumstances, the Step 1 letter which described the nature of the misconduct in general terms was sufficient. In considering whether a document complies with Step 1, a Tribunal is entitled to take into account whether the document would have been seen by the employee to have been ambiguous or to have left him in doubt.  In this case the Claimant knew full well of the allegations against him before the letter reached him as there had been two investigatory meetings beforehand. http://www.employmentappeals.gov.uk/Public/Upload/06_0174ResfhMLNZT.doc

Dismissal and fixed-term contract/amendment of claim

Prakash v Wolverhampton City Council UKEAT/0140/06/MAA

Where an employee on a fixed-term contract is dismissed prior to the expiry of the fixed term, but on appeal overturns the dismissal, the appeal reinstates the original fixed term contract.  If the appeal takes place after the expiration of the original fixed term, the successful appeal does not extend the fixed term contract beyond the date when it would expire according to its terms.

 

An ET has jurisdiction to exercise its discretion to allow a claim that is presented prematurely to be amended so as to permit a claim to be included that could not have been included when the claim form was originally presented, because the claim had accrued at a later date.  The discretion to allow such an amendment must be exercised by the ET in accordance with the well-known principles set out in Selkent Bus Company v Moore [1996] IRLR 661.

http://www.employmentappeals.gov.uk/Public/Upload/06_0140ResfhAMMAA.doc

Contract of service

ABC News Intercontinental v Gizbert UKEAT/0160/06/DM
The Claimant worked for a news service. He did not want to work in war zones so he gave up his full time post for freelance one-year contract with a guarantee of 100 days work per annum at $1,000 per day.  He would be entitled to decline any assignment offered. His contract was renewed the next year. He turned down two assignments over the period, one in Afghanistan and one in Iraq. His contract was not renewed a third time. The EAT held that the Tribunal erred in finding there was no mutuality of obligation as the Claimant could turn down assignments. The Respondent was obliged to offer 100 days work or pay and the Respondent was obliged to act in good faith in deciding whether to accept the work. http://www.employmentappeals.gov.uk/Public/Upload/06_0160ResfhMLNDM.doc

Incorporation of contract terms

May Gurney Ltd v Adshead & Ors UKEAT/0150/06
Weekly-paid staff had contracts which expressly incorporated terms from collective agreements.  Monthly-paid staff did not have the express clause but in practice the collective agreement had been applied to all staff. The agreements contained enhanced redundancy terms however the last agreement had an end date for its operation which fell two years before the monthly-paid employee’s contract was transferred under TUPE. The EAT broadly agreed with the Tribunal’s analysis that the collective agreement had continued, and that even if it did not, the terms still had effect in the individual contracts of employment. As the monthly staff had, in fact, received the benefits it had become contractual right for them also.  http://www.employmentappeals.gov.uk/Public/Upload/06_0138fhAMMAA.doc

Unlawful deductions

Anderson v Jarvis Hotels plc UKEATS/0062/05/RN
Under a proper construction of his contract an hourly-paid employee should have been paid for sleepovers, as this was time when he was required to be at work by the employer to fulfill its needs, despite the fact that emergencies rarely occurred and much of the time was spent asleep. http://www.employmentappeals.gov.uk/Public/Upload/05_0062fhMLNRN.doc

Harassment

Green v DB Group Service Ltd [2006] EWHC 1898
The Claimant claimed damages for personal injury alleging that her psychiatric injury was the result of harassment and bullying by colleagues for whom the defendant as vicariously liable, and of a failure of management on the part of the Defendant. The claimant claimed negligence, breach of contract and breach of the Protection from Harassment Act 1997. Liability in negligence for injury through harassment involves the same test of foreseeability as in the case of work-related stress. In the present case the bullying was pursued relentlessly on a daily basis and had a cumulative effect designed to make the working environment intolerable for the victim. It was foreseeable that some individuals would not be able to withstand such stress and would in consequence suffer some degree of psychiatric injury. http://www.bailii.org/ew/cases/EWHC/QB/2006/1898.html

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