Case law updates
Collective Consultation: When proposing to dismiss 20 or more employees, employers have an obligation to collectively consult about the proposals unless there are ‘special circumstances which render it not reasonably practicable’ to comply. ‘Special circumstances’ are not defined and whether they exist will turn on the facts. However, this recent Employment Appeal Tribunal (EAT) decision highlights that the special circumstances exception will rarely be applicable – a large company unexpectedly going into compulsory liquidation was not sufficient to absolve them of their obligations to consult despite the circumstances being unforeseen. The EAT took the view that although the dismissals were inevitable (making any consultation on avoiding redundancies futile), information could nevertheless have been provided to the affected employees, and consultation could have taken place on mitigating the effects of the dismissals. As a consequence of the employer’s failure to comply, each affected employee is entitled to a protective award of up to 90 days’ pay, a reminder of the potentially high financial consequences attached to this legal requirement and that employers contemplating redundancies should take care to understand whether (and if so, how) the collective consultation obligations apply (Carillion Services (in compulsory liquidation) v Benson & others).
Disability discrimination – menopause: The EAT has overturned a tribunal’s conclusion that a claimant’s menopausal symptoms did not amount to a disability, finding that on the facts it was difficult to conclude anything other than her experiencing symptoms that were having a significant impact on her day-to-day activities. Claims linked to the menopause are increasing, with this case highlighting how the effects of the menopause can often be overlooked or downplayed, and that more work needs to be done to raise awareness. Employers should actively consider what support they can provide menopausal women at work, and recognise that menopausal symptoms may be sufficient to meet the definition of disability. An inquiry into potential law reform to better protect menopausal employees in the workplace closed in mid-September; we await its findings and details of whether legislation will be introduced in this area (Rooney v Leicester City Council). Read more on the legal issues surrounding menopause in the workplace and what employers can do in our Employment Law Watch blog.
Disability discrimination – knowledge: A recent EAT decision acts as a helpful reminder that an employer will only be responsible for most forms of disability discrimination where they know, or ought reasonably to know, that the employee has a disability. In this case, at the time of the alleged discriminatory dismissal, it was found on the specific facts that the employer did not have appropriate knowledge at the relevant time, and so the claim failed (Stott v Ralli Ltd).
Employment Status – substitution: Employers engaging individuals ostensibly on a self-employed basis should note a recent Court of Appeal decision, consistent with other recent decisions, that when the dominant feature of ‘worker’ status arises, there is an obligation to perform work personally, and that the mere existence of a right of substitution is unlikely to defeat this. In the present case, a courier could release a delivery slot to other couriers but if no one accepted, they remained liable for completing the work, an arrangement that the Court considered was too limited a right of substitution which, in reality, did not absolve the courier of personal service. By being categorised as a worker, individuals are entitled to enhanced employment rights as opposed to working on a self-employed basis, including paid holiday and the national minimum wage (Stuart Delivery v Augustine).