The Dismissal Vanishes!

Beware the employer who reinstates an employee following a successful appeal against dismissal but then seeks to impose conditions to the reinstatement, particularly if the original decision to dismiss was based upon a flawed disciplinary or capability procedure.

In the recent EAT case of Thomson v Barnet Primary Care Trust UKEAT/0247/12, a district nurse was summarily dismissed on capability grounds.  She lodged an appeal and was successful.  So far so good and the PCT probably felt it was out of the woods.  However, although she was reinstated with full back pay for the period between the initial dismissal and the outcome of the successful appeal, her employer, a primary care trust said she could only actually return to work if she accepted (a) a final written warning to remain on her file for three years; (b) attendance on a training programme and (c) a competency assessment.  She was suspended on full pay whilst she decided whether to accept these conditions.  After a period of time during which the PCT and the nurse were wrangling over these conditions, she resigned claiming constructive dismissal, stating that the reasons for her resignation were the fact that the PCT had committed significant contract breaches prior to her original dismissal and had compounded those breaches by seeking to impose new contractual terms upon her following her reinstatement.

The employment tribunal held that the Claimant, in accepting her pay whilst effectively suspended, had accepted the new conditions.   It also held that she was not able to rely upon any alleged breaches which occurred prior to her dismissal as she had effectively waived them by accepting her pay.

The EAT disagreed and upheld the Claimant’s appeal.   Although she never returned to her post, her employment had been reinstated, the effect of which was that there had been no dismissal.  The dismissal effectively vanished.  However, the primary care trust’s handling of the disciplinary process, combined with the subsequent imposition of the conditions, amounted to a repudiatory breach of her contract. The EAT held that the tribunal had erred in its conclusion that the employee had waived the right to complain about breaches which occurred prior to the original dismissal because the success of her appeal meant that she hadn’t actually ever been dismissed.  The dismissal was as if it had never taken place and as such the Claimant could not be found to have accepted the new contract terms or waived the previous breaches.

So what should an employer do when it decides to overturn a decision to dismiss on appeal?  In my opinion, the first thing the employer must decide is whether the success of the employee’s appeal was because of the employer’s own failure to follow its original procedure properly or whether it was because the employee brought new evidence to the appeal which meant the dismissal was no longer appropriate.  If the former (as in this case) then it would seem to me to be wholly inappropriate to try and impose a different sanction (even if the relevant procedure allowed for this) as the imposition of any sanction would be based upon a flawed procedure.

My advice in this case would be for the employer carry out the procedure again but this time correctly.  If, at the end of the process, it determined to dismiss or instead that some lesser sanction could be imposed in accordance with its own procedure, then it could be fairly confident in the safety of its decision.  However, if the employer determined when considering the employee’s appeal that the decision to invoke the procedure which led to the original decision to dismiss had not been the right decision, then the only option is to reinstate the employee without invoking any conditions.  It would also be very wise to apologise to the employee in either case!


Employment Tribunal Fees – Part 2

I attended an employment law master class this week given by Daniel Barnett of Outer Temple Chambers and one of the topics covered related to the introduction of fees in the Employment Tribunal.  As those of you who read my January post will know, I was initially very much in favour of their introduction, but I have now had a chance to reflect and I am not quite so positive in my views.  It now seems apparent that, whilst the introduction of fees will certainly act to significantly reduce the number of claims being pursued,  it is unlikely that the reduction will be as a result of those with unmeritorious claims simply deciding not to pursue them.  What is more likely is that those with highly meritorious but low value claims will simply not be able to afford to pursue them given that the issue and hearing fees may exceed the value of the claims and those with unmeritorious discrimination claims (i.e. those who believe their perceived claims have significant value) will still bring them in order to try and wrestle a pay off from their (former) employer.  That, regrettably, is unlikely to change.

I also said in January that those who cannot afford the fees will be able to invoke the Civil Fees Remission Scheme.  However, this is a hugely complex scheme which has been described by the Citizens’ Advice Bureau as not fit for purpose.  A Claimant will be entitled to a full remission of fees if he or she is on non-means tested Income Support.  However, anyone who loses a job and claims benefits will be on a means-tested benefit.  Furthermore, if an individual resigns (even if that resignation is because of a constructive dismissal), or gets a bad reference, there is no entitlement to Job Seekers’ Allowance for 28 weeks.  Therefore, in practice, it is going to be extremely difficult, if not impossible, for individuals to qualify for a full remission of fees.

The introduction of fees, coupled with the introduction of compulsory early conciliation (prior to claims issue), will undoubtedly reduce the number of claims by an estimated 25% – 33%.  However, there is no evidence that the Tribunals are currently over-burdened and there is similarly no evidence to suggest that it is the unmeritorious claims which will be filtered out.

So here you have it, a complete U-turn from me.  Something which my husband and friends will tell you is an event rarer than hens’ teeth.

Are the Obese Protected from Discrimination on the Grounds of their Weight?

Although discrimination on the grounds of someone’s weight is not unlawful for the purposes of the Equality Act 2010 (and nor was it unlawful under the old DDA), nevertheless obese individuals may well fall within the provisions of the Act as a result of other impairments which arise as a result of their obesity.

A person has a disability if he has a “physical or mental impairment which has a substantial and long-term effect on his ability to carry out normal day-to-day activities”.  Whilst obesity, of itself, cannot be classed as an impairment, in the recent case of Walker v Sita Information Networking Computing Ltd,  Mr Walker, as a result of his obesity, had numerous physical and mental conditions (including asthma, chronic fatigue syndrome, knee problems, bowel problems, anxiety and depression), which, as a result of “functional overlay” caused him significant difficulty in his day-to-day life.  Functional overlay is defined as “an emotional aspect of an organic disease. It may occur as an overreaction to an illness and is characterized by symptoms that continue long after clinical signs of the disease have ended”.  It is not, however, a medical condition.  The Employment Tribunal judge at first instance, finding that there was no clear medically defined cause of Mr Walker’s condition, held that he was not disabled.

However, The EAT (the President, Mr Justice Langstaff sitting alone) allowed Mr Walker’s appeal. He said that the employment judge had been wrong to focus on the fact that the medical evidence could not identify a physical or mental cause for Mr Walker’s conditions. The cause, he said, was not the issue.  The determinative factor was whether Mr Walker had a physical or mental impairment which had a significant effect on his ability to carry out normal day-to-day activities and he clearly had both.  The cause of such impairment was not the issue to be determined and the fact that a claimant’s impairment may lack an apparent cause was really a matter of evidence rather than a legal issue. If there is no evident cause of a supposed impairment, then a tribunal may conclude that the claimant does not suffer from it.  However, in this case, there was no challenge to the evidence that Mr Walker was suffering from the impairments he complained of.

Mr Justice Langstaff concluded that:

  • Obesity does not of itself render a claimant disabled. However, it might make it more likely that they are. On an evidential basis, a tribunal might conclude more readily that an obese claimant suffers from an impairment or a condition such as diabetes. Further, the obesity might affect the length of time for which the impairment is likely to last (with regard to whether the impairment has a “long-term effect”). Where an obese individual is determined to lose weight, and a tribunal could conclude that they will reduce their weight to normal levels within a year, this might mean that impairments connected with the obesity might not be considered “long-term” for discrimination purpose.

Whilst on the face of it this looks like a case of weight discrimination being brought in by the back door, in fact it is no different from the current position whereby, for example, an alcoholic could be protected from discrimination not because of his alcoholism (an excluded condition) but because of, for example, associated liver disease.

Employers might, however, want to consider helping their employees to live a healthier lifestyle and one way might be to stop the tradition which exists in many companies of staff bringing in cakes when it’s their birthdays!

Absence Management of Disabled Employees

Under the provisions of the Equality Act 2010 there is a duty on an employer to make reasonable adjustments where a provision, criterion or practice (PCP) applied by the employer, or a physical feature of the workplace, puts a disabled person at a substantial disadvantage in comparison with people who are not disabled.

In the case of Jennings v Barts and The London NHS Trust, Mr Jennings, a disabled employee, was dismissed on the grounds of poor attendance due to ill health.  Throughout his employment he had frequent and intermittent ill-health absences, some of which were as a result of his disability which was as a result of a mental rather than physical impairment.

The Trust had a short-term absence policy which it applied rigorously to all staff and which it applied to Mr Jennings.  As a result of the application of the policy, and following a series of meetings which were arranged but postponed due to Mr Jennings’ medical condition, or held in his absence when he failed to attend, Mr Jennings  received a first written warning.  The Trust then commenced the long-term absence procedure as Mr Jennings had gone off sick once the short-term policy had been implemented, citing that the implementation of the policy had made him even more stressed.

Although an Occupational Health assessment in January 2008  said that it would be possible that Mr Jennings would be ready for a phased return to work in March 2008, the Trust completed the long-term absence procedure and at a final stage meeting Mr Jennings’ manager formed the view that his continued absence was unfair to his colleagues, that the department was busy and that there was a real possibility that Mr Jennings might not in fact return to work as no firm date had been set.  Mr Jennings was dismissed.

Mr Jennings issued a tribunal claim for unfair dismissal and failure to make reasonable adjustments under the Disability Discrimination Act 1995 which was the relevant piece of legislation at the time.

The Tribunal found that, in this case, the PCP in question was the Trust’s short-term absence policy and specifically that the Trust did not permit unplanned intermittent absences without sanctions which would ultimately lead to dismissal.  Mr Jennings suggested that the Trust should have exempted him from this policy because of his disability.  The Tribunal felt that such exemption would not have been a reasonable adjustment.   The EAT agreed.

This is an important case for employers as it illustrates very clearly that the duty to make reasonable adjustments is simply that.  Whether an adjustment is reasonable or not will be very fact driven from case to case.  What may be a reasonable adjustment for a large employer of, say, 1000 employees or more may not be reasonable for an employer with only a handful of staff and a limited budget.  However, the findings in this case would seem to confirm that if an employer has a short-term sickness absence policy which is, in itself, fair and which it applies to all staff, then it is unlikely to be either unfair or discriminatory to dismiss someone at the end of the application of the policy even if the reason for the absences was a disability.   As a result, employers are advised to put such a policy in place and to manage all staff absences in line with the policy.  The important thing to note, however, is that if an employer ever deviates from such a policy for one or more members of staff who are NOT disabled then a disabled person may well be able to bring a claim of direct disability discrimination if it is, nevertheless, adhered to for him.  The key to the NHS’s defence was (a) that the policy was, in itself, reasonable and (b) it was applied universally and without exception.

Blowing the Whistle on False Whistle-blowers?

For those of you who don’t know much about the law on whistle-blowing (as set out in the Public Interest Disclosure Act 1998), it essentially protects  workers from detriment or dismissal if they make, in good faith, what are known as “qualifying disclosures” (usually to their employers) that, in their reasonable belief, one of the following events has occurred, is occurring or is likely to occur:

1.  A criminal offence

2. Breach of any legal obligation

3.  Miscarriage of justice

4.  Danger to the health and safety of any individual

5.  Damage to the environment

6.  The deliberate concealing of information about any of the above

The key here is that, as the law currently stands, in order to be “protected qualifying disclosures”, they need only to be made in good faith.  There is no specific requirement for the disclosures to be made in the public interest.  What this means is that an employee who, in good faith, makes a disclosure which relates to a breach of his own contract of employment (i.e. a breach of a legal obligation), such breach affecting only him, will be protected from suffering detriment or dismissal as a result.

The protection from unfair dismissal for whistle-blowers is immediate.  There is no “qualifying period” of employment before the employee can pursue such a claim and the ordinary cap on compensation which can be awarded for unfair dismissal is removed.  This has arguably made pursuing a whistle-blowing claim very attractive, especially for those who have not been working for their employer very long or whose high salaries mean that ordinary unfair dismissal compensation, being capped, would not adequately compensate them if they were unfairly dismissed.

The Government’s view, however, is that this very wide protection currently afforded to whistle-blowers is open to abuse by employees with limited service or very high salaries who suspect that they might be about to lose their jobs and hence make disclosures about alleged breaches of their own contracts of employment.  However, I have seen no evidence that any such abuse is any more widespread than the undoubted abuse by a small number of Claimants of the Equality Act 2010 which affords immediate protection from discrimination from the point of recruitment and which, too, has uncapped compensation.    It is a fear of such claims that has certainly made many of my clients overly (and unnecessarily) fearful about dismissing (for perfectly reasonable and legitimate grounds) black, Asian or other employees with protected characteristics.  However, as I tell my clients time and again, just because someone is black, doesn’t mean that he or she can’t be dismissed for misconduct or poor performance and, provided there is no other evidence of unlawful discrimination, on what basis could they pursue such a claim?  The same could be said of employees without qualifying service who might seek to pursue whistle-blowing claims.  If the employer has done nothing wrong, then the employer has nothing to fear.

Nevertheless, the Government has determined that the law as it stands does not provide enough protection for employers from spurious whistle-blowing claims and as such Clause 15 of the Enterprise and Regulatory Reform Bill will amend the Employment Rights Act 1996 so that qualifying disclosures must in the reasonable belief of the worker be made “in the public interest”.  This will apply to all the categories of protected disclosure above.  However, the requirement for the disclosure to be made “in good faith” will be removed.

In seeking to solve one perceived problem, to my mind, the Government has created another – there will undoubtedly be endless litigation seeking to determine exactly what is meant by “in the public interest” given that breaches of an individual’s’ contract of employment may well have an element of public interest and it will also place an extremely onerous burden on the employee, particularly in the case of the employee without legal representation.   Hardly likely to promote the culture of openness that the Government says it is seeking, particularly in light of the recent problems with the NHS.









Employment Tribunal Fees

Finally, this summer, (probably July), fees will be introduced for Employment Tribunal claims.  In my view these have been a long time coming.  Long gone are the days when Employment Tribunals were places where individuals could easily represent themselves and where the maximum sums being claimed were relatively low.  These days employment legislation is significantly more complex than in the past and the tribunals are over-stretched.

Although the introduction of fees is no longer being promoted by the Government as a way of dissuading those with weak claims from pursuing them, but rather as a way of lessening the cost burden to the tax payer, it will no doubt result in a significant reduction in the number of weak and spurious claims brought, which is no bad thing .

Many people will no doubt argue that the introduction of fees is wrong when tribunal claims are most frequently brought by those who have lost their jobs (and hence their income) and are therefore most in need of free access to justice.  I do have some sympathy for that view,  however, there have always been issue fees for proceedings in the Civil Courts and this hasn’t deterred people from pursuing their claims.  I cannot see why the Employment Tribunals should be any different.    Furthermore, there will be a system for remission of fees for those with very low incomes and who satisfy other criteria.  As a lawyer who has spent over 13 years representing both Claimants and Respondents, it is apparent to me that a significant number of claims are brought simply because the Claimant has nothing to lose and might get a pay off just because he or she has issued proceedings.  I am therefore very much in favour of anything  which may serve to deter the pursuance of such claims.

Similarly, anyone with a really meritorious claim who doesn’t qualify for a remission of fees should be able to find the means to pay the issue fee, especially as such money will be recouped either upon settlement or at the end of the trial in the likely event that the claim will succeed.  Given that the introduction of fees should reduce the number of claims pursued, the time for cases to come to trial should reduce, with most simple 1 day trials being heard or settled within 6 months of the date of issue.

The fees will be as follows:

  • level 1 claims (i.e. the very straightforward ones such as unlawful deductions from wages etc) – £160 issue fee; £230 hearing fee
  • level 2 claims (all other claims) – £250 issue fee; £950 hearing fee
  • Employment Appeal Tribunal – £400 appeal fee; £1,200 hearing fee
  • there are several other fees, eg £60 for an application to dismiss following settlement and £600 for judicial mediation

You can find more information here:

Check-list for Employees on use of E-mail and Social Media

Below is a check-list of things for employees to consider when using e-mail and social media:

Reputational risks

What you write in e-mails or on the internet could seriously damage your own or another person’s reputation, you could lose your job and you and your company could be sued, fined or even imprisoned.

Stop and think before you click

  • Anything written in an e-mail has the potential for public exposure (for example, if the e-mail is forwarded to others).
  • Posting on the internet is essentially making a public statement (for example, when commenting on social media sites, blogs or other electronic forums).
  • Failing to take care about what you write can have serious personal, disciplinary and financial implications.
  • Even if you are e-mailing or using other forms of online communication in your own time, if you refer to people at work or work related matters, you and your company could get into trouble.

E-mails and internet postings can be used in legal proceedings

  • E-mails and internet postings can be used against you or your company in legal proceedings, disciplinary meetings or other regulatory investigations.
  • Never delete e-mails relating to a legal dispute or investigation or potential dispute or investigation.

It is very difficult to delete e-mails and online postings

  • Simply deleting e-mails or internet postings will not necessarily solve the problem. Forensic IT equipment can still find supposedly “deleted” messages.
  • What you publish online will likely be available for a long time, to be read by anyone, including the company itself, future employers and colleagues.

Do not be hurtful or spread rumours

  • Never send e-mails or post content online that could be thought of as obscene, racist, sexist, bullying or hurtful.
  • Never lie, exaggerate or make a false or inaccurate statement about another company or person. You could be sued even if an e-mail was only sent to one person.
  • Forwarding an e-mail can be just as serious as writing the original – you could be sued even if the original was sent or forwarded to only one person.

 Take care with confidential information

  • Where possible, avoid sending confidential information (such as confidential intellectual property or trade secrets) by e-mail. Take legal advice on how the information can be best protected.
  • Any e-mail containing confidential information should be clearly marked as “confidential”.
  • If you receive an e-mail that contains another company’s confidential material (for example, a company’s trade secrets) and the e-mail was not part of a legitimate business transaction, you should take legal advice immediately. 

Do not make a contract by mistake

  • A legally binding contract can be made by a simple exchange of e-mails.
  • Make it clear if you do not intend the e-mail to be binding.

Do not copy someone else’s work

  • Only use or attach other people’s work to your e-mails if you have permission or you know it is not protected by copyright or other intellectual property rights (for example, trade mark rights). This includes photographs and music.
  • Do not assume that work you find on the internet is free to use.

Do not send or view offensive or unknown material

  • Monitor what arrives in your inbox, especially if you do not recognise the sender or the title of the e-mail seems odd.
  • If there is a risk that an e-mail may contain a virus, do not open it and inform the IT department immediately.
  • You could be disciplined or even dismissed for forwarding inappropriate e-mails or accessing inappropriate websites at work. In severe cases it could also be a criminal offence.

Avoid unproductive usage

  • Most businesses allow light personal internet and e-mail usage as long as it does not interfere with your duties. However, excessive, unproductive usage is not permitted and may be treated as gross misconduct.
  • E-mails can often be a waste of time. Think carefully before copying someone in on an e-mail, especially if there is a long chain of e-mails attached.
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