Reed Smith Newsletters

Welcome to our monthly newsletter, with a summary of the latest news and developments in UK employment law.

Case law updates

Dismissal: An interesting Employment Appeal Tribunal (EAT) decision concluded that it was not unfair to dismiss a claimant despite the issues having already been addressed under concluded disciplinary proceedings resulting in a final written warning. While rare to reopen concluded matters, there is no general rule against ‘double jeopardy’ and this unusual case is an example of where it was not unfair to revisit the issues. The claimant held a senior position in an NHS hospital trust and had responsibility for improving racial equality, as well as being the chair of her employer’s BME network. She faced disciplinary proceedings after numerous allegations of (amongst other things) bullying, harassment and discrimination, and ultimately received a final written warning. However, in the meantime, a report by the Care Quality Commission concluded that bullying, harassment and discrimination were “rife” in the organisation, and the trust was placed into special measures with the management taken over by another trust’s executive team. The new chief executive questioned the previous disciplinary findings and instigated the process which led to the claimant’s dismissal on ground that she was not objectively credible or accountable to lead on race issues. Interestingly, as well as finding the dismissal fair, the EAT also concluded that it was irrelevant whether the dismissal was framed as a ‘conduct’ or ‘some other substantial reason’ dismissal – the key was whether the dismissal was fair and within the range of reasonable responses. Although uncommon, this will be of interest to employers faced with significant intervening events, such as the involvement of a regulator (as here), which provide a reason to revisit previous disciplinary proceedings. (Lyfar-Cissé v. Western Sussex University Hospitals NHS Foundation Trust and others)

Disability discrimination (i): In a decision that will be reassuring for employers, the EAT has found that the dismissal of an employee who had been on long term sickness absence (and was disabled for the purposes of the Equality Act (EqA)) was not discriminated against when he was dismissed, nor was he disadvantaged when a decision was made to reduce the compensation payable to him under the Civil Service Compensation Scheme (CSCS) following his capability dismissal. In a period spanning a couple of years, the claimant had been absent from work for 245 days over 23 occurrences and at the point of dismissal he had been off for seven months and there was no prospect of his return. Further, his absence was negatively impacting on productivity and team morale, and his employer concluded that all reasonable adjustments had been exhausted. The EAT was satisfied that dismissal was a proportionate means of achieving a legitimate aim (of maintaining a fair, effective and transparent sickness management regime, and efficient use of resources) in the circumstances. In respect of the CSCS, the amount paid was reduced due to the claimant’s conduct and although partly related to his disability, his entitlements under the scheme were not unfavourable treatment. (McAllister v. Revenue and Customs Commissioners) 

Disability discrimination (ii): Another EAT decision this month is a helpful reminder that a respondent must know, or should reasonably have known, that the claimant was disabled for potential discrimination to occur. In this case, the EAT was satisfied that there was no evidence on which the employer could or ought to have known that the claimant was disabled at the point at which alleged discrimination took place, and as such disability discrimination could not have arisen. (Preston v. Eon Energy) 

Discrimination – marital status: Claims alleging discriminatory treatment because of marital status are rare and a recent EAT decision highlights the narrow scope of marital status protection. In this case, the claimant was married to the majority shareholder of the company where she worked, but they separated and an acrimonious divorce followed. The claimant was subjected to numerous unfounded allegations, reported to the police, and was dismissed. She succeeded with a discrimination claim based on marital status in the Employment Tribunal (ET), but the EAT allowed an appeal. Although expressing sympathy with the claimant, acknowledging that she had been treated badly, the EAT ruled that the Tribunal had failed to address their minds to the real issue. The ET had wrongly focussed only on whether the Claimant was treated unfavourably because she was married to the majority shareholder. The correct approach involved a comparative analysis. The ET should have been asking itself whether the Claimant would have been treated in the same unfavourable way if she had been in a close personal relationship with the shareholder, but not married to him. As the ET had focussed on the wrong issue, the appeal was allowed, albeit the EAT noted it did so with a “very heavy heart”. (Ellis v. Bacon and another)

Data protection – EU GDPR (i): The attorney general has provided an opinion on the scope of the duty to provide a copy of personal data undergoing processing under the EU General Data Protection Regulation (GDPR). His opinion includes views that “copy” should be interpreted as a faithful reproduction of the personal data requested, in an intelligible form, with the form of that copy being dependent on the specific circumstances; and that “information” is limited to the copy of personal data undergoing processing. Although not binding in the European Court of Justice (ECJ) or in the UK, the opinion will nevertheless be of interest for organisations in the UK where the EU GDPR has reach.

Data protection – EU GDPR (ii): The ECJ has handed down a decision that the right of access to personal data under the EU GDPR extends to also identifying the specific recipients (or categories of recipient if individuals cannot be identified) to whom the personal data has been disclosed, if this information is requested. Although not directly binding in the UK, the relevant provisions of the EU GDPR are materially the same as the UK GDPR. (RW v. Österreichische Post AG)

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