Employment tribunal and court judgments | May 2021
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In Hamilton v Fife Council, the Employment Appeal Tribunal ("EAT") had to consider whether a collectively agreed term indicating that permanent posts would not be advertised when an employee was designated surplus was apt for incorporation into an individual contract.
The Claimant, a teacher, was told that their department had surplus staff and they were liable to be transferred to another school under a collective agreement. The school subsequently advertised for a full-time position in the same department. The Claimant resigned and claimed constructive unfair dismissal on the basis the school was in repudiatory breach of this term.
The tribunal dismissed the claim and, on appeal, the EAT decided that this was not a term that generated individual rights. This is because terms that are collective in nature cannot generate enforceable individual rights due to the vagueness of the term and lack of specification as to when it could be invoked by employees. It was concluded that the term was only a broad statement of agreement on what would happen in a surplus situation, therefore there was no breach of contract.
In this Elliott v Dorset County Council, the Claimant was subject to disciplinary proceedings in which it was alleged that he falsely over-recorded his working times. Mr Elliott had agreed with his line manager that he would record working hours of 9 – 5 even if he worked outside those hours. During the disciplinary proceedings, a union representative suggested an assessment of Mr Elliott, to establish whether he was on the autistic spectrum, due to certain behaviour patterns/characteristics that were displayed. The assessment concluded that Mr Elliot did indeed meet the criteria for an ASD diagnosis and was diagnosed with Asperger's Syndrome.
Before the assessment or disciplinary process was complete, Mr Elliott accepted voluntary redundancy but claimed in the employment tribunal (ET) that he had suffered disability discrimination. At the ET it was held that Mr Elliot was not disabled as his impairment was not "substantially" adversely impacting on his ability to carry out day to day activities.
On appeal, this was disputed and the EAT judgment included several points, following existing case law, to clarify. Of note for employers is that unless the impairment is minor or trivial, it will be considered substantial. Even if a person can carry out day to day activities, this does not mean that their ability to undertake them is not impaired. The correct approach is to compare how an individual with that disability carries out an activity, compared to someone without that disability. Many individuals will have coping mechanisms which mitigate the impact of a disability, but this does not necessarily mean they are not disabled.
A new tribunal is to consider afresh whether Mr Elliot is disabled within the meaning of the Equality Act 2010.
It was found in Commissioner of the City of London Police v Geldart, that non-payment of an allowance during maternity leave was not sex discrimination.
Ms Geldart is a police officer who is entitled to a 'London Allowance' paid as a recruitment incentive. Whilst on maternity leave, she only received the London Allowance to the same extent as she was entitled to ordinary maternity pay. At first instance it was held that there was no basis in the Police Regulations 2003 to reduce the London Allowance during maternity leave and consequently this was found to be direct sex discrimination.
On appeal, the Court of Appeal agreed that there was no basis to reduce the London Allowance during maternity leave but allowed the appeal against direct sex discrimination because the employer had genuinely misinterpreted the Police Regulations 2003 in treating the London Allowance as pay.
Officers who are not available for work are not entitled to London Allowance, Ms Geldart was absent, and was therefore not paid. As such, the reason for the non-payment - as opposed to the reason for her absence - was not because of her sex.
