Case law updates
Disability discrimination: A recent Employment Appeal Tribunal (EAT) case reminds employers that taking action against a disabled employee for conduct which has been influenced by their disability will not necessarily be unfair or discriminatory. In this case, the claimant, who had autism, was dismissed for her conduct in overstepping professional boundaries (which the claimant was aware of). The EAT confirmed that her employer was able to objectively justify the disciplinary sanction even if it arose as a consequence of her autism. (Morgan v. Buckinghamshire Council)
Disability discrimination – reasonable adjustments: A disabled claimant was not discriminated against when his employer failed to adjust an interview process for him as part of a restructuring and redundancy process. It was accepted that the claimant, who was on long term sick leave with work related stress and whose impairment affected his memory, concentration and social interactions, was at a substantial disadvantage compared to non-disabled employees by the requirement to be interviewed for a role in the new structure. However, the EAT was satisfied that it was not reasonable for his employer to delay his interview as a short delay would not have alleviated the disadvantage and time was of the essence as other candidates had been interviewed. The EAT also concluded that simply ‘slotting in’ the claimant to the new role without interview was not a reasonable adjustment as this provided him with an advantage over other candidates which went over and above alleviation of his disadvantage. It was also relevant in this case that the claimant had made it clear that his unwillingness to attend the interview was unconnected with his disability. This case is a helpful illustration for employers about the scope of their duty to make reasonable adjustments. (Hilaire v. Luton Borough Council)
Equal pay: A job evaluation study (JES) is a common feature of equal pay claims, often with technical preliminary arguments about whether something amounts to a JES. In an appeal on this issue, the EAT has confirmed that whether a study amounts to a JES should be considered in light of the definition in the Equality Act 2010 – this is narrower than the position established through case law, and as set out in the Equality and Human Rights Commission Statutory Code of Practice on Equal Pay, and although the EAT did not think the analysis would be affected in practice, the decision leaves scope for some uncertainty in this area. The case also considered the burden of proof for establishing whether a study is a JES, concluding that the burden rests with the person seeking to rely on it. (Element v. Tesco)
Unfair dismissal: An EAT decision reminds us that a successful appeal against a dismissal will overturn the dismissal and the employee is treated as reinstated with appropriate back pay, and that this is the case regardless of whether the employee wants to return. If the employee does not wish to be reinstated, they should either not appeal the decision, or clearly and unambiguously withdraw their appeal. (Marangakis v. Iceland Foods)
Settlement agreements: The first tier tax tribunal has held that a substantial payment made to an employee in consideration for entering into confidentiality and non-disclosure obligations under a settlement agreement was taxable as employment income. Employers should remember to take care when structuring settlement payments to take account of the different tax rules, and draft the settlement terms accordingly. (Mrs A v. HMRC)
Unfair dismissal – mitigation of loss: A recent EAT decision is ahelpful reminder that claimants must provide evidence of why they have not sought to mitigate their loss. In this case the claimant said she had not searched for another job due to concerns that she was stigmatised as a whistleblower. Although the employment tribunal held that this was not an unreasonable failure to mitigate her losses prior to the liability decision, the EAT disagreed – the claimant should have presented evidence which factually supported her assertion. (Hilco Capital v. Harrington)
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