Key employment law cases: August 2020

Disability discrimination: reasonable adjustment for employer to give undertaking regarding severance package

Hill v Lloyds Bank Plc - Employment Appeal Tribunal - 6 March 2020

The EAT has ruled that it would have been a reasonable adjustment to give an undertaking to a disabled employee that she would not be required to work with the two colleagues that she claimed had bullied and harassed her, and if this was not possible that she would be offered a severance package.

The Claimant suffered from a reactive depression resulting from bullying and harassment at work and was deemed to be disabled for the purposes of the Equality Act 2010. She brought a grievance in relation to this treatment which was not upheld. On return to work from sick leave she sought an undertaking from her employer that they would not require her to work with the two colleagues concerned, or if this was not possible that she would be offered a severance package (equivalent to a redundancy package). Lloyds refused to give this undertaking.

The EAT held that Lloyds had a practice of not giving these sorts of undertakings and that this practice put the Claimant (as someone suffering from anxiety and fear of being required to work with the individuals involved) at a disadvantage compared to a non-disabled person. The undertaking would have alleviated Ms Hill's fear and so it would have been reasonable for Lloyds to have given a firm undertaking. Words of comfort were not enough.

This case suggests that the EAT may take a fairly expansive view on what could be considered a reasonable adjustment for a disabled employee. Employers should always carefully consider what could be done to alleviate genuine concerns expressed by disabled employees (even if this could be seen to amount to a special benefit).

Disability discrimination: wrong to apply "but for" test in considering discrimination arising from a disability

Robinson v Department of Work & Pensions - Court of Appeal - 7 July 2020

When considering whether discrimination arising from a disability has occurred, the Tribunal must consider if the treatment complained of was “because of” disability, not “but for” the disability.

Robinson suffered from blurred vision amounting to a disability, which caused her to suffer migraines when using her computer and a particular software programme. Attempts were made to adapt magnification software to help her (although these were unsuccessful). There were long delays in the process, which led to periods of sickness absence. She lodged a grievance regarding the slow response, which was upheld. It was agreed that she would transfer to a temporary paper-based role at the same grade. After lodging a second grievance, she claimed for failure to make reasonable adjustments and discrimination because of something arising in consequence of her disability (her blurred vision).

At first instance, the Tribunal upheld her complaint of discrimination for a reason arising from disability due to the DWP’s delay in dealing with her grievance and in identifying a solution. The EAT overturned that decision on the basis that the Tribunal had incorrectly applied a “but for” test and the facts did not support a finding of discrimination. The Court of Appeal agreed: it is not a “but for” test ie for the Claimant to show that she would not have been in the situation complained of (eg a victim of delay and incompetence) “but for” her disability. The treatment complained of must be “because of” disability and the tribunal must consider the motivations (conscious or unconscious) of the alleged discriminator. This affirms the reasoning of an earlier EAT decision; Dunn v Secretary of State for Justice.

The scope of the protection afforded under s.15 Equality Act 2010 is evolving. When first introduced, many saw the provision under section 15 as designed to address the issues under the previous “disability-related discrimination” provision and highlighted in London Borough of Lewisham v Malcolm – the claimant need not show “less favourable” treatment, the focus is simply on “unfavourable treatment”; and there was an implicit move away from the focus on motivation, to a consideration of the detrimental treatment and whether the employer could objectively justify it. Arguably, by emphasising the importance of the motivation of the decision-maker, the decisions in Dunn and now Robinson mark a return to a harsher climate for disability litigants to succeed with s.15 claims.

Disability discrimination: Tribunal must weigh up the needs of employer versus discriminatory effect on employee

Department of Work and Pensions v Boyers - Employment Appeal Tribunal - 24 June 2020

When considering if discrimination arising from disability was objectively justified, the Tribunal must conduct a balancing exercise between the needs of the employer and the discriminatory effect of dismissal on employee.

Mrs Boyers was dismissed whilst on long term sickness absence. She had worked the DWP for 11 years when she was signed off with work-related stress in 2017. She suffered from migraines, which she said were exacerbated by being bullied and harassed at work. She raised a grievance about their handling of bullying and her illness, which was investigated and rejected. After an unsuccessful trial at an alternative workplace, she did not return to work. Having been absent on sick leave for roughly a year, she was dismissed on the basis that her return to work in the near future was not foreseeable.

Boyers brought claims in the Tribunal for unfair dismissal and discrimination arising from disability, which she won. The Tribunal accepted that the DWP was seeking to achieve legitimate aims in dismissing her: namely (i) to protect public funds and resources and (ii) to reduce strain on other employees, but held that her dismissal was not a proportionate means of achieving those aims. The DWP appealed against the discrimination finding on the basis that the tribunal was wrong to reject its justification defence.

The EAT held that the Tribunal had failed to weigh up the real needs of the DWP against the discriminatory effect of the proposed dismissal. The Tribunal had failed to conduct this balancing exercise and instead wrongly focussed on the DWP's decision-making process which led to the dismissal. The case has been remitted to the same Tribunal for redetermination.

Unfair Dismissal: reliance on anonymous witness evidence not necessarily unfair

Tai Tarian v Christie - Employment Appeal Tribunal - 3 March 2020

The EAT has confirmed that it will not necessarily be unfair to dismiss someone based on the evidence of an anonymous witness, even where the witness declines to participate in the disciplinary process.

The Claimant worked as a carpenter for housing association Tai Tarian (TT) for 14 years and had a clean disciplinary record. After a tenant complained that he had made homophobic comments to her, he was dismissed summarily for gross misconduct. The tenant was interviewed by two managers during the investigation but requested anonymity and was not interviewed by the two decision-making managers. In the first instance, the Tribunal ruled that the dismissal was unfair because it was outside the range of reasonable responses to rely on anonymous evidence and without taking other steps to ensure a fair hearing.

The EAT disagreed. The Tribunal had failed to explain why it was unreasonable for TT to accept the tenant's account. The EAT said that there needed to be logical and substantial grounds for finding that TT could not reasonably accept the evidence of an anonymous witness as true. The Tribunal had relied on the fact that TT had accepted evidence that the Claimant was not homophobic and concluded that TT could not have believed that he made the homophobic remarks, which was effectively substituting its own view. The case has been remitted to a differently constituted Tribunal for re-hearing.

Unfair dismissal: claim allowed to proceed with no prospect of financial award

Evans v London Borough of Brent - Employment Appeal Tribunal - 17 July 2020

The EAT overturned a Tribunal's decision to strike out an unfair dismissal claim where there was no real prospect of an award of damages being made.

The case involved a Deputy Head Teacher who was dismissed for gross misconduct, having received bonuses and payments which were unlawful under teachers' standard terms and conditions to the value of £250,000. The school brought proceedings against him in the High Court to recover those sums, and due to the majority being time-barred, the Judgment was limited to some £46,000. Given the findings of the High Court, the Tribunal was satisfied that there was no prospect of the Claimant recovering any compensation and that the claim had no reasonable prospect of success save on the ground of procedural unfairness. The claim was therefore struck out.

On appeal, the EAT said that the Tribunal had been wrong in failing to acknowledge that a mere finding of unfair dismissal could be of value, even without the possibility of any monetary value. Having found that there were reasonable prospects on procedural grounds, it could not be said that such a finding would be of no value or that the interests of justice could not require that a Respondent be held to account, even if that could not lead to any financial award.

Agency workers: worker supplied on long-term basis still agency worker where each assignment is temporary

Angard Staffing Solutions Ltd and another v Kocur and others - Employment Appeal Tribunal - 10 July 2020

The EAT has ruled that a worker supplied on long-term basis to an agency's sole client was still an agency worker under the Agency Worker Regulations 2010 (AWR 2010) because each assignment was temporary.

The EAT dismissed both the appeal and the cross-appeal, holding that when assessing whether an individual is supplied temporarily to another end-user, the issue is not whether the overarching relationship between the agency and the worker is temporary. Rather, the focus should be on the basis on which the worker is supplied to work for the end-user on each occasion. The contract of employment and other initial documentation between the worker and agency forms part of the evidential and factual matrix, but is not necessarily determinative, as the issue is fact-sensitive.

Having found as a fact that each and every assignment had been for a defined period, by reference to a particular shift or shifts, the Tribunal had been entitled to conclude that Mr Kocur was supplied to work temporarily for Royal Mail, and was therefore an agency worker under regulation 3(1) of the AWR 2010.

This case emphasises that the focus should not be on the nature of the worker's contract with the agency, but the nature of the supply to the end-user in relation to each assignment. A flexible arrangement, where the workers have zero-hours contracts and are mainly supplied to cover staff absence, or to deal with an upsurge in work, will be likely to count as temporary.

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