Employment tribunal and court judgments | January 2022

When is an employee's conduct reason for dismissal?

In Mr M Hope v British Medical Association, Mr Hope was dismissed after a disciplinary process. He was dismissed because of his conduct which his employer felt was vexatious and unreasonable and had undermined the working relationship. Mr Hope had submitted vexatious grievances and complaints against colleagues.  He was found to have been obstructive and failed to engage with the employer's attempts to deal with his grievances.

On appeal, Mr Hope contended that the Tribunal had not found he had breached any term of his contract and that there was no deliberate wrongdoing nor grossly negligent behaviour on his part. He therefore contended that he was unfairly dismissed.

His appeal failed. The Appeal court found that for conduct to be a fair reason for dismissal, the conduct does not have to be of any particular character.  The Tribunal will consider whether the employer acted reasonably or unreasonably in treating the conduct as sufficient to justify dismissal, having regard to all of the circumstances of the case, including the employer’s size and administrative resources. A breach of a term of a contract is a factor to consider, but not essential.

In this case the employer had acted reasonably, had carried out as much investigation as was reasonable in the circumstances and dismissal was within the band of reasonable responses to the findings of that investigation.

Fear of catching COVID-19 did not amount to a philosophical belief

In X v Y, an employee decided not to return to her place of work on the grounds of health and safety due to a fear that she would catch COVID-19 and then pass it on to her partner, who was considered vulnerable. After raising these concerns with her employer, the employee was told that she would not be paid if she did not return to work. The employee claimed that her employer, by withholding her wages and causing a financial detriment as a result, had discriminated against her on the grounds of a philosophical belief.

At first instance, a Tribunal ruled that an employee's fear of catching COVID and a belief in the need to protect herself and others did not amount to a philosophical belief worthy of protection under the Equality Act 2010. The Judge did not dispute the fact that the Claimant had a genuine fear but held that this fear could not amount to a belief but simply 'a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat'.

Timelines for statutory flexible working requests clarified

Employees may try to formalise working arrangements piloted during the pandemic by making a statutory request for flexible working. Employers must deal with these requests properly to avoid Employment Tribunal claims. The Tribunal may order an employer to reconsider a request and/or pay compensation up to eight weeks' (capped) pay.

To make a request for flexible working an employee must have 26 week's continuous service (although there is an ongoing consultation about reducing the length of this period). There is a three-month decision period from receipt of a flexible working request for an employer to notify the employee of the outcome. Having an appeal process is encouraged by ACAS but is not mandatory. The outcome of any appeal must also be given within the three-month decision period.  The employee and employer can agree to extend the three-month decision period. A complaint may be presented to the Employment Tribunal once the decision period has ended (or the extended period has ended) or an employee receives a final decision on their request.

In Walsh v Network Rail Infrastructure Ltd an employee brought a claim relating to a declined flexible working request.  He submitted his claim to the Tribunal before a scheduled meeting with his employer to appeal his declined flexible working request. His employer contended the Tribunal was not able to hear the claim as the decision period (as extended by the appeal meeting), was still ongoing.  

The EAT concluded that the fact of holding an appeal meeting after the end of the initial three-month decision period did not extend the decision period. There must be an actual agreement between the parties to extend the decision period. There was not in this case and so the claim could be heard by the Employment Tribunal.

When a director or shareholder is also an employee or worker

Rainford v Dorset Aquatics Ltdconsidered when someone is an 'employee' or a 'worker' for the purposes of section 230 of the Employment Rights Act 1996. The EAT confirmed it depends on the facts of each individual case.

This case concerned two brothers who were co-directors of, and shareholders in, a small family landscaping company. Both took a monthly salary topped up by dividends. There were no express employment contracts in place. Following a dispute, one brother claimed he was an employee or worker of the company. He contended that he was eligible to claim unfair dismissal, notice pay, unlawful deductions from wages and holiday pay.

The EAT confirmed the decision of the Employment Tribunal. The Claimant was neither an employee nor a worker. Relevant considerations included: whether there was a written contract of employment; whether the conduct of the parties suggested an employer/employee relationship; whether a person must carry out work personally (an employee usually must); and arrangements for payment. In particular, the fact someone receives a salary taxed at source is not conclusive evidence alone that they are an employee. The facts presented to the Tribunal showed neither employee nor worker status.

The relevance of a grievance to applications to extend time in discrimination claims

In Wells Cathedral School and another v Souter and another the EAT considered the relationship between a grievance and determining whether it is just and equitable to extend time for submission in discrimination claims.

Wells Cathedral School and its Music Director appealed to the EAT over Tribunal's decision to extend the time for two teachers to bring their discrimination claims. Their argument was that the Tribunal's initial ruling should not have relied on the fact that the two teachers had raised grievances before making their claims which had allowed evidence to be preserved.

The EAT rejected this appeal stating that Tribunals should consider extensions on a case-by-case basis and, in giving weight to all the factors, a grievance can be relevant. The existence of a grievance should not automatically justify an extension of time but that does not mean it cannot be decisive.

The EAT also applied this approach to an absence of "forensic prejudice" (loss of evidence). It so happened in this case that the EAT did not treat the existence of grievances and the lack of forensic prejudice as individually decisive and also included other factors in confirming the validity of the extension. It affirmed that balancing all the relevant factors will establish what is just and equitable but emphasised there is no rule that the Tribunal must look elsewhere for a reason to extend if a grievance has prevented forensic prejudice.

Employees with dementia and the question of retirement

Hutchinson v Asda demonstrates that employers should be wary of direct age discrimination, disability discrimination and age-related harassment and should seek advice before holding employer-led discussions on retirement where there is a background of ill-health.

The Tribunal found in favour of the former supermarket employee in her claims for age and disability related harassment, discrimination related to a disability, direct age discrimination, and constructive unfair dismissal on the back of repeated enquiries from managers if she wished to retire, creating an environment where she reasonably felt unwanted. Albeit well-intentioned, the offers of assistance and comments on retirement were unwelcome and violated the claimant's dignity. The Tribunal found that such conduct would not have occurred with an employee presenting the same medical symptoms but whom was not of retirement age.

The employer was found to have been on notice of the employee's mental ill-health and disability because of symptoms such as confusion, forgetfulness, and increased need for assistance in her role. As such the Tribunal noted that the employer should have at least made a referral to occupational health so to investigate the employee's symptoms before she returned to work after lockdown.  

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