Over the last twelve months we’ve seen many important employment tribunal judgements that employers should be aware of. Here, we take a look back at five cases explained by our employment law expert Ed McFarlane, and what they mean for organisations.
Is it discriminatory to reject a non-disabled job applicant because of a condition that could become a disability in future?
Back in January, the Employment Appeal Tribunal (EAT) ruled in Chief Constable of Norfolk v Coffeythat “perceived disability” is discriminatory.
The Claimant was a serving police officer in Wiltshire Police who applied for a transfer to the Norfolk force. She had a degree of hearing loss, which would usually have disqualified her from recruitment when she joined the Wiltshire force, but she was accepted after a function test.
Norfolk Police rejected her transfer request based on concerns that she might end up on restricted duties should her hearing deteriorate.
The tribunal found that this decision was direct discrimination based on a perception that the Claimant would be disabled in the future. The hypothetical comparator would be a candidate whose condition was not perceived as likely to deteriorate so as to require restricted duties.
It’s noteworthy that the decision maker, having rightly taken the view that the candidate was not disabled before rejecting her, said that had a candidate been disabled then they would have looked at adjustments. Since it was a direct discrimination case, there could not have been any justification for the decision.
For established agency workers, do employers have to match the basic working terms and conditions of comparable employees?
In an important case for agencies and end-users, the EAT held that for established agency workers (with ’12-week rights’) you have to match ‘term-by-term’ the basic working terms and conditions of comparable employees. A ‘package approach’, like a higher rate of pay to offset less holiday, is no acceptable.
The basic conditions affected are:
The duration of working time
Offering agency workers longer or shorter shifts than comparable employees is also not an option. However, the EAT rejected a literal take on ‘duration of working time’, so you don’t have to provide the same number of hours per week.
If a worker doesn’t take their annual leave during a year, is the right to that leave lost at the end of the year?
No, unless the employer diligently gives the worker the opportunity to take it, held the CJEU in Max-Planck-Gesellschaft v Shimizu.
Mr Shimizu worked at the Max Planck Institute, a private scientific support institution in Germany, until 2013. He brought a claim for unpaid holiday from 2011 and 2012. Under German law, he lost the right to carry over untaken leave from one year to the next. The German Federal Labour Court referred two questions arising to the CJEU.
The CJEU held that the Working Time Directive requires that if a worker does not exercise the right to paid annual leave in any year, leave should not automatically be lost unless the employer has ‘diligently’ brought it to the worker’s attention that leave will be lost.
The burden of proof falls on the employer to inform them accurately and in good time of the right.
Can dismissal for misconduct without prior warning be reasonable for multiple issues when none are by themselves gross misconduct?
Yes, held the EAT in Mbubaegbu v Homerton University Hospital.
The Claimant was a consultant surgeon of black African origin. The hospital had introduced internal reporting procedures designed to address a dysfunctional working environment. The Claimant was dismissed for multiple alleged breaches, despite an unblemished career.
His colleagues had also faced similar, less serious allegations and none were dismissed. The tribunal held the dismissal was fair, not discriminatory and not wrongful. There was no single finding of an act of gross misconduct by the Claimant.
The tribunal accepted that trust and confidence had been undermined by the employee’s conduct. The EAT noted that “it is quite possible for a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee”.
Is the removal by an employer of an ‘outdated and unjustified’ contractual allowance void under TUPE when it comes after a transfer?
No, held the EAT in Tabberer v Mears Ltd, dismissing the Claimants’ appeal.
The Claimants were electricians, formerly employed by Bristol City Council, who had a historic entitlement to an ‘Electricians Travel Time Allowance’ (ETTA), which dated from 1958, itself replacing a productivity bonus. ETTA was held to be contractual.
With changes in working practices, the Respondent gave notice to vary the Claimants’ contracts to end ETTA describing it as an ‘outdated and unjustified’ allowance. The Claimants argued that the variation was void under Regulation 4(4) of TUPE as connected with a transfer.
The tribunal disagreed, accepting that the Respondent’s reason for ending the ETTA was not connected with a transfer, but because it was outdated. The EAT held that the tribunal was entitled to have found that the Respondent’s reason was not connected with a transfer.
The parties had approached the question of the reason for the variation as a question of fact rather than one of fact subject to a legal assessment. The EAT summed up the approach as ‘The question to be asked is; what is the reason? What caused the employer to do what it did?’.