Employment tribunal and court judgments | October 2024

Welcome to our monthly update, where we share recent employment cases of interest and the practical considerations for employers.

No "vacancy" created where employer is reducing number of the same roles

Whilst the Claimant was on maternity leave, Carnival plc identified a need to reduce its 21 team leader posts to 16 and undertook a redundancy exercise. As part of this exercise, the Claimant was made redundant, and she subsequently claimed unfair dismissal and maternity discrimination.

The Employment Tribunal (ET) upheld her claims and found that the Claimant was entitled to be offered one of the 16 remaining team leader roles as they were “suitable alternative vacancies”.

The Company appealed the ET’s decision. The Employment Appeal Tribunal (EAT) disagreed with the ET and found that the remaining 16 team leader roles were not “vacancies”. Accordingly, the protection from redundancy which the Claimant was entitled to due to being on maternity leave, did not mean that Carnival had to offer her one of the remaining roles.

Earlier this year, new regulations were introduced which enhanced the protection from redundancy for pregnant employees and those who are on or have recently returned from maternity leave. This is known as the “protected period”. As a result, where employees are within the protected period, they must be offered suitable alternative vacancies where it is proposed that their role is to be made redundant.

The EAT’s decision in this case makes it clear that where an employer is reducing the number of roles, there is no requirement to offer one of the remaining roles to an employee who is within the protected period. That said, the EAT did confirm that if the employer was amalgamating two roles, this would create a “vacancy”. In these circumstances, the vacancy would have to be offered to an employee in the protected period, if it was a suitable alternative.

Employers who are proposing redundancies should always bear in mind the additional protections afforded to pregnant employees and those who are on or have recently returned from maternity leave and must consider whether there are any suitable alternative vacancies which must be offered to those employees.

Comments about baldness held to be harassment related to sex

The Employment Appeal Tribunal (the EAT) confirms that comments about baldness could be sex-related harassment.

The Claimant, Finn, was employed as an electrician at the British Bung Manufacturing Company Ltd (the Company). In July 2019, Finn was involved in an altercation with another colleague, King, who called Finn “bald” and threatened using physical violence. King was given a warning about his conduct.

In March 2021, there was an incident between Finn and another colleague, during which King became involved and threatened Finn with physical violence once again. Finn reported this incident to the company.

Finn was later dismissed for gross misconduct concerning another matter.

Following his dismissal, Finn brought several claims, including sex-related harassment. The Employment Tribunal (ET) found that King’s conduct towards Finn constituted harassment on the basis of sex. Whilst the ET acknowledged that baldness could apply to both sexes, it found that it was much more likely that a person on the receiving end of a remark regarding baldness would be male. As such, King’s intention to hurt Finn by commenting on an aspect of his appearance which is often found among men made it an instance of harassment related to sex.

The company appealed. However, the EAT upheld the decision of the ET, agreeing that King’s conduct constituted harassment related to sex.

This decision underlines the caution needed when employers carry out disciplinary investigations and processes, especially ensuring that such processes are fair and thorough.  The context and circumstances surrounding workplaces incidents should be explored fully and taken into consideration before a decision is made.

The decision also serves as a reminder of the risks involved where comments are made on someone’s appearance in the workplace and the potential for it to relate to sex (or any other protected characteristic).

Police sergeant wins £1.1m in disability discrimination case

The Employment Tribunal (ET) recently awarded a Claimant, a former police offer, £1.1 million in a claim against Thames Valley Police for disability discrimination.

The Claimant, Katrina Hibbert was a police officer with Thames Valley Police (TVP) between May 2004 and March 2020 when she resigned. From April 2017, she was a safeguarding sergeant, working with young people who were subject to child sexual exploitation and child drug exploitation. Soon after taking up this role, she had been advised by occupational health to have an outside interest due to the stressful nature of her role. As such, she obtained approval for her to have an external business interest which was a party and events business which she had set up.

In early-mid 2019, she was signed off work by her GP due to stress on several occasions. While she was off sick, TVP withdrew their permission for the Claimant to run her party and events business, after her line manager noticed posts on her business’ Facebook page which seemed “upbeat and happy”. However, Hibbert allegedly continued and was subject to disciplinary proceedings for carrying on with her business.

As a result of the disciplinary proceedings, the Claimant resigned in March 2020 and subsequently brought claims of disability discrimination before the Employment Tribunal.

The ET held that the application of the business interest policy and its withdrawal amounted to discrimination arising from a disability as well as a failure to make reasonable adjustments. The ET also found that the Claimant was constructively dismissed.

In upholding Hibbert’s claims of disability discrimination, the ET criticised TVP’s failure to give the Claimant the opportunity to respond to their concerns leading to the withdrawal of permission and the failure to afford her permission to continue working on her business interest subject to conditions, either at review or appeal stage.

Hibbert was awarded £1,176,368 in compensation. This figure was made up of more than £600,000 for future financial losses and tax of more than £500,000. The compensation awarded highlights the potential significant costs for employers where an employee suffers discrimination, as compensation in such claims is uncapped.

Employers should be cautious about removing measures put in place which are recommended by occupational health, as this may result in claims for discrimination arising from disability and/or failure to make reasonable adjustments.

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