April 2024 brings with it a number of significant employment law changes. In this month’s update we detail the new financial limits, changes to redundancy protection, and new rights on maternity and family leave, working time and carer’s leave.
Case law updates
Disability discrimination - reasonable adjustments: The Employment Appeal Tribunal (EAT) has been considering the extent to which the duty to make reasonable adjustments includes offering an employee a trial period in a new role as an alternative to dismissal. In this case the claimant was no longer able to fulfil his field-based role due to his multiple sclerosis and applied for an administrative role in the same company, but when the recruiting manager concluded that he did not have the appropriate skills or experience for the new role, he was not offered the role or a trial period. He was subsequently dismissed for ill health. The claimant succeeded with claims for unfair dismissal, discrimination arising from dismissal and a failure to make reasonable adjustments in the Employment Tribunal (ET). The EAT dismissed the employer’s appeal. On the reasonable adjustments point, it concluded that a trial period is capable of being a reasonable adjustment and there is no requirement that this is only offered where there is some likelihood of the trial being successful. In the EAT’s view, wherever there is a substantial disadvantage (which is likely where there is an impending dismissal) adjustments to avert dismissal should be considered, and whether offering a trail period is reasonable will depend on the circumstances of each case. Employers faced with similar scenarios should carefully consider whether to offer a trial period and be prepared to justify why one is not offered where the role is one a disabled employee could carry out, even if they do not have existing skills or experience. (Rentokil Initial UK Ltd v Miller)
Discrimination - religion and belief: In a case that was widely reported in the media, the EAT has upheld a decision that an actor cast in an iconic lesbian role was not discriminated against when her contract was terminated after a historic Facebook post about her belief that homosexuality was a sin resurfaced. Whilst the EAT was satisfied that her beliefs were protected, the discrimination claim failed because the reason for her contract being terminated was the adverse publicity caused by her social media posts and the impact this would have on the commercial success of the play. Her breach of contract claim also failed as she suffered no loss - she was paid her full fee, but also later admitted that having read the script she would not have agreed to play the role anyway. (Omooba v Michael Garret Associates)
Discrimination - time limits: There are strict time-limits for bringing claims in the ET, although in discrimination claims the ET has jurisdiction to hear complaints that occurred outside the time-limit if it is part of a series of conduct extending over a period. The EAT has been considering the circumstances in which events are deemed linked for time limit purposes. In this case, the claimant’s job was ceasing to exist due to a restructure and she was offered another role, at a lower grade, which she rejected. She went off sick and was ultimately dismissed on ill health grounds. She had also raised a grievance alleging age and disability discrimination. She brought various claims in the ET - only her dismissal was within the usual three-month time limit, but the ET allowed all her claims to proceed on the basis there has been conduct extending over a period of time. The EAT concluded that the ET had approached the issue of time-limits wrongly. For an extension based on a continuing conduct to apply, it was not sufficient for the grievance to be related to a protected characteristic. The conduct being relied on as continuing conduct must itself be discriminatory. As the failure to deal with the grievance properly and pre-determine the outcome was not discriminatory, it was not a valid basis for extending the time limit. The EAT also considered whether alleged discriminatory conduct extending over a period needed to relate to the same protected characteristic or the same type of conduct, concluding that it did not. Whilst it may be more difficult to establish, conduct relating to different protected characteristics and/or a mixture of say harassment and direct discrimination, could be capable of being linked for time limit purposes. (Worcestershire Health and Care NHS Trust v Allen)
ET claims - evidence: A claimant who won part with her claim has had her remedies hearing struck out for having destroyed, or lied about destroying, relevant notebook and mobile phone evidence, meaning it was no longer possible to have a fair trial. The EAT upheld this decision, noting that while strike out is a draconian step, in the circumstances it was both appropriate and proportionate to do so in this case, reminding parties of the importance of disclosure and preservation of evidence. (Kaur v Sun Mark Ltd)
ET claims - territorial jurisdiction: In an interesting case exploring the territorial reach of UK employment law, the stewardess of a superyacht has been permitted to bring claims of unfair dismissal and discrimination in the ET despite there being a very limited connection to the UK. The superyacht never entered a UK port or UK waters during her employment. The employer was registered in Guernsey and was not carrying out any business in the UK. The employee’s ‘tours of duty’ started outside the UK, and her salary was paid in Euros. However, the ET held it had jurisdiction to hear here claims because her home was in Aberdeen, and she was paid travel expenses between home and the superyacht. The ET concluded that Aberdeen was her ‘base’ and that her duties started and ended there. It was also relevant that her contract was expressed as being governed by the laws of England and Wales. (Yacht Management Company Ltd v Gordon)
Equal pay: The material factor defence, i.e. that there is a material factor not linked to sex to explain the differential in pay between a claimant and their comparator, is often a key issue in equal pay claims. The EAT has been considering the extent to which a material factor defence will fail if the pay decision maker is not identified or fails to gives evidence on the reasons for the pay difference, concluding that while there may be cases where evidence of the decision maker can be helpful to establish the reason for any pay disparity, it is not necessarily essential to enable the defence to succeed. (Scottish Water v Edgar)
Family leave: Employees are protected from detriment or dismissal if it is connected with them taking or having sought to take certain types of statutory family leave. The EAT has been considering what is meant by ‘sought’ in this context, concluding that a purposive approach should be taken and the fact that an employee has not formally given notice to take leave does not necessarily preclude the protection. In this case the claimant was deemed to have sought to take leave - he had engaged in informal discussions with his employer about taking unpaid parental leave and had stated his intention to take leave on various occasions, and his employer had provided details of the how to apply. Whilst he had not formally provided a written request at the time of his dismissal, a stage had been reached where he had ‘sought’ to take leave. (Hilton Food Solutions v Wright)
Unfair dismissal: Whether or not an employer’s decision to dismiss falls within the ‘band of reasonable responses’ is a key factor relevant to assessing the fairness of the dismissal. A recent case highlights how the ET must objectively consider what a reasonable employer might do, and not substitute their own view. In this case the ET found that an employee who had posted a racist comment on the company’s intranet had been unfairly dismissed, considering that his apologies, previous exemplary record and his request for relevant training were sufficient to conclude that dismissal was outside the band of reasonableness. On appeal, the EAT disagreed with their approach - the company had a zero-tolerance approach to racism and the ET should have concluded that dismissal was a reasonable response available to the employer even if they thought it harsh. This does not mean that employers with a zero-tolerance approach to certain misconduct will always be able to fairly dismiss, as mitigating factors should still be considered, but in this case they were outweighed by the conduct. (Vaultex v Bialas)
Whistleblowing: The EAT has been considering the extent of knowledge that a decision maker needs to have of a protected disclosure for their decision to potentially be because of that disclosure. In this case the claimant made a protected disclosure to A, who then told B that a disclosure had been made but provided no detail on what it was about. B dismissed the claimant. The EAT, dismissing the claimant’s appeal, concluded that the decision maker needed to have some knowledge of what the worker is complaining of or expressing concern about in order for whistleblowing protection to apply. It is not sufficient for the decision making to simply know that a protected disclosure has been made. (Nicol v World Travel and Tourism Council)
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