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Employment case law updates you may have missed in July and August 2020

Below are a number of interesting and recent case law updates, on the issue of unfair dismissal, disability discrimination and equal pay, which you may find relevant to your organisation.

Unfair dismissal

23 July 2020: Evans v London Borough of Brent UKEAT/0290/19

Update:

The Employment Appeal Tribunal ('EAT') has overturned a Tribunal's decision to strike out an unfair dismissal claim, even though there was no prospect of a financial award.

Background and Tribunal findings:

The claimant had been dismissed for gross misconduct from his post as deputy head teacher for his part in financial mismanagement, which had resulted in him receiving unauthorised overpayments from the school and allowing unauthorised overpayments to another person. He brought an unfair dismissal claim, which was stayed pending a High Court action which led to the Claimant being ordered to repay over £46,000 to the school.

The Tribunal struck out the unfair dismissal claim finding that there were no reasonable prospects of finding that the employer did not have a reasonable belief in the misconduct and that any compensation would inevitably be reduced to zero, due to either a Polkey v AE Dayton Services Ltd reduction or due to contributory fault. Also, in view of the irrecoverable overpayments, it would not have been just and equitable to make any payment of compensation to him.

The EAT upheld the Claimant's appeal. The tribunal had failed to acknowledge the potential value of a finding of unfair dismissal, even without a financial award. It could not be said that such a finding would be of no value, or that it is not in the interests of justice to hold an employer to account for procedural unfairness in deciding to dismiss a long-serving employee, even if that cannot lead to any financial award.

02 July 2020: Tai Tarian v Christie UKEAT/0059/19/VP

Update:

It was not outside the range of reasonable responses to dismiss someone in reliance on the evidence of an anonymous witness.

Background and Tribunal findings:

The Respondent was a housing association, who employed the Claimant as a carpenter. The Claimant was dismissed after a tenant alleged that the Claimant had made homophobic comments to her. The tenant was interviewed by two managers but requested anonymity and was not interviewed by the decision-making managers.

The Tribunal concluded that the dismissal was unfair as it was outside the range of reasonable responses for the Respondent to rely on an anonymous account and fail to take other steps to ensure the Claimant had a fair hearing.

The EAT held that the Tribunal's findings on the question of fairness were unsafe. It concluded that the tribunal had not met the test of demonstrating any good reason (or "logical and substantial grounds") for its conclusion that the Respondent could not have reasonably accepted the tenant's evidence as truthful.

11 August 2020: Gallacher v Abellio Scotrail UKEATS/0027/19/SS

Update:

This is a decision of EAT, sitting in Scotland. The EAT found, in some circumstances, an employee can be fairly dismissed, without using a fair procedure, where there is a breakdown in working relations.

Background and Tribunal findings:

The Claimant was a senior manager in the Respondent's business. Her relationship with her line manager deteriorated at a critical business juncture for the Respondent, meaning the mutual trust and confidence had broken down between the Claimant and her line manager. The Claimant's manager decided, after consulting with HR, to dismiss her at an appraisal meeting having conducted no procedure, provided the Claimant with prior warning or affording her a right of appeal.

The Tribunal found the dismissal to be fair and suggested the decision to dismiss, without any procedure was within the band of reasonable responses. It was decided that, in these particular circumstances, conducting a formal procedure would have made the situation worse.

The EAT noted the unusual circumstances of the case but declined to overturn the Tribunal's decision. They confirmed there may be instances, though rare, where procedures may be disregarded because they are reasonably considered by the employer to be futile in the circumstances. The Tribunal had found that the working relationship had broken down amongst both parties. The EAT went on to explain that there is no specific rule of law confirming that the absence of any procedure renders a dismissal unfair, however, all the circumstances of the case have to be taken into account. The EAT did note that extra caution must be taken by a Tribunal, in deciding on dismissals that have taken place without any procedure, when considering whether these fall into the band of reasonable responses.

Disability Discrimination

06 July 2020: Hill v Lloyds Bank PLC UKEAT/0173/19/LA

Update:

The EAT upheld a Tribunal decision that it would have been a reasonable adjustment for the employer to promise the employee that she would not be required to work with two colleagues identified in this case that had a negative impact on her mental health.

Background and Tribunal findings:

The Claimant brought a claim for disability discrimination, based on a failure to make reasonable adjustments. The failure to an undertaking formed the basis for the employee's successful disability discrimination claim.

The employee had been employed for over 30 years and had a period of long-term sickness absence for stress, which she claimed was due to being bullied and harassed by two colleagues. She raised a grievance against these colleagues that was not upheld. Upon her return to work she requested an undertaking that she would not be required to work with those colleagues and that, if there was no alternative, the employer would offer her a severance package equivalent to the redundancy package.

The Tribunal found that the employer had a "practice" of not giving undertakings and that this practice placed the employee at a substantial disadvantage. As such, it was considered that the undertaking would have been a reasonable adjustment in the circumstances.

The EAT dismissed the employer's appeal on liability and rejected the argument that its refusal to give the undertaking was a one-off decision rather than a "practice". Furthermore, the EAT held there was no reason why the employer could not give an undertaking to provide a disabled employee with certain benefits if, in future, certain circumstances arise.

14 July 2020: Robinson v DWP [2020] EWCA Civ 859

Update:

When considering if discrimination arising from a disability has occurred, a tribunal should consider if the treatment complained of was 'because of' disability, rather than 'but for' disability.

Background and Court findings:

The Claimant brought complaints under the Equality Act 2010 of discrimination for reasons arising from disability (s15) and failures to make reasonable adjustments (s20) after her grievances weren't properly addressed, and screen magnification software couldn't be adapted for her use with a particular computer system, resulting in her transfer to other work.

The Tribunal upheld her complaint of discrimination for a reason arising from a disability, which the EAT overturned.

The Court of Appeal held that the facts found by the tribunal in the case could not support findings of discrimination. Both direct discrimination and discrimination for something arising from a disability require the tribunal to decide whether the treatment complained of (whether less favourable or unfavourable) was because of the protected characteristic of disability. It is not enough for a Claimant to show that 'but for' disability, she would not have been in the (unfavourable) situation complained of.

Equal Pay

17 August 2020: Walker v Co-operative Group Limited [2020] EWCA Civ 1075

Update:

On the facts of the case, it was not open to a Tribunal to find that a 'successful material factor defence,' explaining a difference in pay, had ceased to operate at a later point in time.

Background and Court findings:

The Claimant had been employed by the Respondent for four years, most recently in the role of the Group Chief HR Officer. On her termination of her employment, the Claimant brought multiple claims, including claims against the Respondent's Chief Executive Officer, for numerous complaints, which included an equal pay complaint.

The Tribunal found that the material factor defence applied at the point when the Claimant was appointed, but this explanation was then rejected by the Tribunal as being 'historical' a year later.

The Court of Appeal held that to dismiss this explanation as 'historical' missed the point. What mattered was the explanation for the pay difference. Moreover, the Tribunal's analysis had overlooked the fact that, even a year later, in respect of the comparators, there was at least one material factor, which remained causative of (or which explained) the differential in pay.

For more information contact Ruth Rule-Mullen in our Education department at Ruth Rule-Mullen or on 01772 220195 or Emma Swan in our Employment department at Emma Swan or on 07817 392717. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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