Alison Wallace, head of employment practice at Steptoe & Johnson presents a quarterly round-up of employment law case rulings including an occurrence whereby a prison officer who had to recover the bodies of prisoners who had committed suicide suffered a stress-related illness for which his employer was held liable.
Sex discrimination
Brumfitt v Ministry of Defence
Miss Brumfitt was an acting Corporal in the RAF Military Police. She attended a training course in February 2001.
Throughout the course a sergeant used a number of offensive and obscene remarks which were directed at both male and female personnel. She later brought a claim for sex discrimination. The Appeal Tribunal decided that although she found the language to which she had been exposed offensive and humiliating to her as a woman, she had not been exposed to it because of her sex but because like others of both sexes, she had been required to attend the training course.
Moonsar v Fiveways Express Transport Limited UK EAT/0476/04
The downloading of pornographic material at work by male colleagues amounted to sex discrimination against a female colleague, even though she made no complaint to her employer.
Although no images were circulated to her, she was fully aware of what was happening. Her lack of contemporaneous complaint afforded the employer no defence. By permitting this behaviour or not actively checking that it does not occur, employers could be at risk of potential sex discrimination claims. Employers may be able to defend their position if they have proper policies in place which they actively enforce.
Disability Discrimination
Spencer v O2 UK Case No. 1805496/03
Mr Spencer was diabetic. He worked for 02 UK for six years. During his employment his absence was poor. The vast majority of the absences were directly related to his diabetes. No specialist report was obtained before he was dismissed and the most recent specialist report was at least ten or eleven months out of date.
Mr Spencer claimed unfair dismissal and disability discrimination and was successful. 02 had failed to comply with its duty to make a reasonable adjustment. The failure to properly consider and offer Mr Spencer part time employment was the unanimous opinion of the Tribunal a failure to make a reasonable adjustment. Following the decision, 02 UK agreed to pay Mr Spencer £10,000 in full and final settlement of his claim.
Collective Agreements
Kaur v MG Rover Group Limited EWCA Civ 1507
Miss Kaur was an employee who had been at Rover’s Longbridge plant for more than 14 years. When she was faced with the threat of compulsory redundancy, she alleged that the Collective Agreement was expressly incorporated into her contract and one of the terms of which was that there would be no compulsory redundancies.
She applied to the Court for a declaration that the agreement was incorporated into her contract and that she had a contractual right not to be made compulsorily redundant. The Court of Appeal disagreed. The sentiments were aspirational rather than contractual.
Human Rights
McGowan v Scottish Water EAT 23.9.04
The Employment Appeal Tribunal held that an employee who was dismissed following his employer’s discovery through covert surveillance that he was falsifying timesheets was not unfairly dismissed.
The right to private and family life under Article 8(1) of the European Convention of Human Rights had not been breached. Accordingly, he could not argue that there had been an infringement of his right such as to render the dismissal process unfair. Covert surveillance of his house was appropriate, having regard to the seriousness of the problem and the practical issues.
Hanlon v Kirklees Council
Mr Hanlon refused to consent to the disclosure of his medical records, arguing it was a breach of his right to respect for privacy under the European Convention for Human Rights. The Employment Appeal Tribunal held that the right to respect for privacy must be balanced against protection for the rights of others and in litigation the rights of the other party to have a fair trial must always be important. Accordingly, striking out a case because he refused to consent to disclosure of medical records did not offend the right to respect for privacy under the European Convention.
Equal Pay
Cadman v Health & Safety Executive 2004 EWCA Civ 1317
The Court of Appeal has referred the question of whether employers can automatically justify differences in pay on grounds of length of service to the European Court of Justice. The essential issue in the case is whether an ostensibly gender neutral ground for differentiating pay, such as length of service, which is transparently applied, needs to be objectively justified as a necessary and proportionate way of addressing a particular business need.
Pregnancy Related Dismissal
Ramdoolar v Bycity Limited EAT/0236/04
Actual knowledge of a pregnancy is required before an employer can be found to have automatically unfairly dismissed an employee for a reason connected with the pregnancy. Circumstances however may arise where an employer had detected the symptoms of pregnancy and suspecting that the employee may be pregnant, dismissed her before their suspicion was proved right. In these circumstances, a dismissal may well be automatically unfair.
Fixed Term Employees
Departments of Work and Pensions v Webley
The Court of Appeal has held that the non renewal of a fixed term contract cannot constitute less favourable treatment towards a fixed term employee. The case is one of the first on the new Regulations which came into force on 1 October 2002. The Applicant worked for the DWP on a succession of fixed term contracts, the last of which terminated 51 weeks after her initial engagement.
The Applicant complained that the termination constituted less favourable treatment. The relevant question for the purposes of the Regulations is whether the termination or non renewal of the contract constituted less favourable treatment. The answer was no.
Allen v National Australia Group Europe Limited
Mr Allen entered into a fixed term contract for nine months. There was also a clause in his contract that either party could terminate the employment by giving one month’s notice. That clause did not prevent the contract having fixed term status under the Regulations.
Constructive Dismissal
El Hoshi v Pizza Express Restaurants Limited
Mr El Hoshi discovered that his manager had employed an illegal immigrant. As a result of raising this with his manager, he was punished by his branch manager. He went off sick and never returned to work. He waited two months before his solicitors wrote saying that he was claiming constructive dismissal.
The Employment Tribunal held that he was not too late to do so. The fact that he was off sick and received sick pay was not an affirmation of the contract. An important factor in this case was that he continued to protest during his period of delay even though he was too ill to attend any meetings to discuss his grievance. The case may have turned on the fact that he was a whistleblower.
Omilaju v Waltham Forest LBC
If a final straw was to be successful and relied on by an employee as a repudiation of a contract of employment, it had to be the last of a series of acts or incidents which cumulatively amounted to a repudiation of the contract by the employer. The final straw might not be unreasonable or blameworthy conduct. It might not always have to be unreasonable, but it had to contribute however slightly to the breach of the implied term of trust and confidence. An entirely innocuous act on the part of an employer could not be a final straw.
Judge v Crown Leisure Limited
The Employment Appeal Tribunal has upheld a Tribunal’s decision that a conversation between an employee and his manager at the office Christmas party did not amount to an enforceable promise to an increase in pay.
At the end of the company’s annual dinner dance, the manager promised the employee a substantial pay rise over the following two years. Two years later, although he did receive a substantial pay rise, it was not quite as large as he had been promised. He resigned and claimed constructive dismissal.
The Appeal Tribunal held that the original promise was not contractually enforceable as there was no intention to create legal relations. The Tribunal had been right to take into account that the conversation took place during a social event when spouses attended and was made during the convivial spirit of the evening.
Redundancy
Hardy v Tourism South East 2005
The Respondents were planning to close one of their two offices. Mrs Hardy worked at the Tunbridge Wells office. This was to be closed as part of restructuring. There were 26 employees in the office including Mrs Harding.
All would need to be dismissed as redundant or re-deployed. The case concerned whether the Respondents were in fact proposing to dismiss as redundant more than 20 employees within 90 days and whether the collective consultation provisions in Section 188 of TULR(CA) 1988 were engaged.
Those obligations were onerous as a breach can lead to a protective award of up to 90 days pay for each affected employee. The Employment Appeal Tribunal confirmed that the collective consultation obligations are engaged even where the employer intends to offer alternative employment to the majority of employees thereby bringing the number actually dismissed below 20.
The rationale is that the employer is still proposing to dismiss more than 20 employees even if alternative employment is offered to some or all of them.
Terms of Employment, Duty of Mutual Trust and Confidence
Horkulak v Canter Fitzgerald International 2004 EWCA Civ 1287
Mr Horkulak claimed he was entitled to a discretionary bonus. The Company disagreed. The Court of Appeal agreed that Mr Horkulak was so entitled. The discretion provided for in a contract which was prima facie of an unlimited nature would be regarded as subject to an implied term that it will be exercised genuinely and rationally.
An employer is contractually obliged to exercise its discretion rationally and in good faith in awarding or withholding a benefit provided for under the contract. Where the employer fails to do so, the employee is entitled to be compensated in respect of such failure.
Employment Status
Staffordshire Centinal Newspapers Limited v Potter 2004
An express contractual term providing that the Applicant was not required to do the work personally is inconsistent with an employment contract of service.
Stress at Work
Hartman v South Essex Mental Health & Community Care NHS Trust & Others
The Court of Appeal has decided six appeals on the issue of employers’ liability for psychiatric injury suffered by employees owing to the pressures or stresses of work. The majority of the cases turned on the question of whether the employees’ injuries had been reasonably foreseeable.
The overall test remains the conduct of the reasonable and prudent employer giving positive thought to his workers’ safety in the light of what he ought to know. In five of the six cases the High Court had found in the employees’ favour. However the Court of Appeal upheld only two of these five decisions. In three cases employer liability was not made out.
In Wheeldon, the employee’s depressive condition had been noted by the Bank’s occupational health department (OHD,) which had concluded that the depression had been precipitated by work factors and that it was advisable that the nature of the employee’s work difficulties be discussed. The fact that such information was not acted upon when brought to the attention of the Bank led to the Bank’s being liable for the psychiatric injury suffered.
In Melville, a prison officer who had to recover the bodies of prisoners who had committed suicide suffered a stress-related illness for which his employer was held liable. The employer had produced guidance documents acknowledging that such traumatic incidents can lead to psychiatric injury.
The Court cautioned, however, that the fact that an employer offers an occupational health system does not of itself indicate that it has foreseen psychiatric injury. Indeed the availability of such a service makes it less likely that the employer will be in breach of his duty if such injury does occur.
In Hartman, disclosure of previous mental health problems to an OHD did not fix the employer with knowledge of the employee’s heightened susceptibility to psychiatric injury as the information remained confidential.
In Best v Staffordshire University, the fact the employer provided a counselling service was not fatal to the employee’s claim, but on the facts of the case there was no basis for finding that the employer should have foreseen his health breakdown.
In Green v Grimsby and Scunthorpe Newspapers Ltd, the employer took five days to respond to the employee’s memo detailing his concerns about his work and the effect it was having on his health. The Court of Appeal upheld the High Court’s decision that this was reasonable in the circumstances, as the employer had taken time to consider the best course of action.
Finally, in Moore v Welwyn Components Ltd, the employer appealed against the award of damages for loss of earnings arising from a depressive illness caused by workplace bullying. The employer argued that the damages should have been apportioned to reflect the fact that the employee’s vulnerable mental state was in part caused by factors not related to work, and might have caused him to lose earnings in the remaining years of his employment. The appeal was rejected as the employer had failed to provide evidence to show that the injury had other causes.
