Key employment law cases: March 2020

Unfair dismissal: applying Jhuti, failure to share material fact could be relevant to fairness

Uddin v London Borough of Ealing – Employment Appeal Tribunal – 13 February 2020

In this unfair dismissal case (where the reason for dismissal was conduct due to inappropriate sexual behaviour at drinks after work in a bar), the EAT held that the investigator’s failure to share a material fact with the decision-maker (namely that the victim had withdrawn her complaint to the police) was relevant to the fairness of dismissal.

The judgment is potentially concerning for employers because it represents a broader application of the Supreme Court’s decision in Jhuti: where a more senior person hides the real reason for dismissal behind an invented reason that the decision-maker adopts (such as pretending it is performance-related rather than whistleblowing), the hidden reason can be imputed to the employer. It was thought that this decision could be narrowly applied since Jhuti involved a manager who actively manipulated and obscured the reasons for dismissal. However, in Uddin, the investigating manager’s motivations were held to be beside the point. This case suggests that any failure by individuals involved in a disciplinary process to provide accurate and up-to-date information could undermine the fairness of an eventual dismissal.

Whistleblowing: public rebuttal of whistleblower’s allegations could amount to detriment

Jesudason v Alder Hey Children's NHS Foundation Trust - Court of Appeal - 31 January 2020

The Court of Appeal has held that where an NHS Trust contacted Members of Parliament and the Care Commission (amongst others) to rebut a former employee’s allegations regarding how the Trust had dealt with whistleblowing concerns he had raised, this constituted a detriment against the former employee. However, the Court concluded that this detriment was not “because of” his original whistleblowing, but rather it was “because of” the Trust’s desire to protect its reputation against further public statements the employee had made. The Claimant satisfied the test for establishing detriment, but failed to show that the Respondent’s actions were on the grounds he had made a protected disclosure.

Employers should tread very carefully when responding to allegations made by employees against them in the public sphere. This case illustrates that such a response could be found to be a detriment where it strays beyond an entirely factual/accurate statement. This could provide the basis for a successful whistleblowing claim.

Shared Parental Pay: Court of Appeal decisions stand

Ali v Capita Customer Management and Hextall v Chief Constable of Leicestershire - Court of Appeal (CoA), 24 May 2019

The Supreme Court has refused permission to appeal the in the case of Chief Constable of Leicestershire v Hextall. The Ali case was not appealed. This means that the joint Court of Appeal decision therefore stands. In Hextall, the CoA ruled that it was not indirect sex discrimination to pay only the statutory rate to fathers on shared parental leave while paying enhanced maternity pay to mothers on maternity leave. In Ali, the CoA ruled that the practice of paying different rates to fathers on SPL than mothers on maternity leave was not direct sex discrimination either. In short, it means that employers are not required to enhance SPL if they offer enhanced maternity pay.

Unfair dismissal: dismissal was fair due to reputational risk where employee charged with criminal offence

Lafferty v Nuffield Health – Employment Appeal Tribunal – 15 August 2019 (judgment only recently available)

The EAT has agreed with the tribunal that an employee was fairly dismissed given the potential reputational risk to his employer when he was charged with a criminal offence. The Claimant was a hospital porter, which involved transporting anaesthetised patients. He was charged with a serious sexual offence, unconnected to his work. Both he and the police informed Nuffield Health of the charge, for which no trial date had been set. Nuffield then dismissed him on the basis that there was a risk to its reputation from continuing to employ him when he had access to vulnerable patients.

The EAT considered the law on dismissals involving unproven allegations of criminal conduct, noting that each case will turn on its facts. In this case, the Claimant’s job afforded him the opportunity to commit the kind of act he was charged with, and there was a risk of reputational damage to Nuffield, in light of recent scandals in the sector. The tribunal’s finding that the dismissal for some other substantial reason was fair and there was no error of law.

Long term sickness: employee entitled to PHI benefits until he could return to the same job

ICTS (UK) Ltd v Visram - Court of Appeal – 20 February 2020

The Court of Appeal has upheld the tribunal's decision that an employee was entitled to be compensated for loss of PHI benefits following his dismissal, when he was unable to return to the same job he had held before starting a period of sickness absence.

The relevant explanatory booklet stated that the employee would continue to receive benefits until the earlier of his return to work, his death or retirement. In line with the earlier decisions, the CoA took the view that that the words "return to work" meant specifically the employee’s return to the same work with the same employer that he had been doing before going on sick leave.

If the intention is that a benefit should only become payable for as long as the employee is unable to perform any full-time employment, the policy wording should be sufficiently clear. More generally, employers would be well advised to include appropriate limitations of liability in any employment contracts. Such wording will be of little assistance if an employer dismisses an employee prematurely without first giving consideration to an employee's potential entitlement to PHI benefits.

For more key employment law updates from us:

• read our Insights on key developments over the last month;
• stay Ahead of the Curve with our summaries covering the key aspects of employment law under review by the government;
• scroll through our key dates timeline showing recent and anticipated changes to employment law; and
• attend our upcoming events or catch up on training.