Case law updates

Changing terms and conditions: There is a risk of an employee being deemed to have been unfairly dismissed where an employer unilaterally places the employee into a new role on different terms and conditions (even where the employee remains employed in that new role and does not resign). In determining if there has been a dismissal, the key question is whether the changes are such that, in effect, they amount to the initial contract being terminated by the employer and replaced by a new one. In this recent case, which had a complex factual background, the Employment Appeal Tribunal (EAT) overturned the decision of the employment tribunal (ET), which had found that there was no dismissal where an employee was unilaterally moved to a lower grade role. The EAT was critical of the ET’s rationale – the ET had failed to carry out a proper ‘before and after’ exercise to compare the terms and had wrongly given relevance to the employer having no intention to dismiss the claimant. The case has been remitted to the ET. (Jackson v. University Hospitals of North Midlands NHS Trust)

Philosophical belief discrimination – remedies: Maya Forstater, the claimant whose claim led the way for gender-critical beliefs being recognised as a protected philosophical belief under the Equality Act 2010, has been awarded over £100,000 in compensation following a previous finding that she had been directly discriminated against when, because of her views, her visiting fellowship was not renewed and she was not offered employment. The compensation payment included £25,000 for injury to feelings and £2,000 for aggravated damages arising from public statements made on behalf of the respondent. (Forstater v. CGD Europe)

Unfair dismissal – incapacity: An employee whose termination date was extended seven times after a decision had been made to end his employment on health grounds was not unfair. Although the employer’s absence policy did not include a right to extend, the postponements were intended to be to the employee’s advantage, and the procedure and decisions were within the realm of reasonable responses. This case demonstrates the challenges with many ill-health scenarios – particularly where there may be an opportunity for an employee to return to work – with employers having to balance internal procedures with principles of fairness and reasonableness. (Garcha-Singh v. British Airways PLC)

Unfair dismissal – misconduct: The EAT has upheld a decision that it was fair to dismiss an employee for gross misconduct where the dismissing manager made his decision following a paper exercise only. Although it will usually be unfair not to have held a disciplinary hearing with the employee, on the facts of this case, the disciplinary procedure as a whole was deemed reasonable (and, in any event, any defects were corrected on appeal). (Charalambous v. National Bank of Greece)

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