When an employer is considering dismissing an employee for conduct issues, it must ensure that it has carried out a reasonable investigation, and then it must show that the decision to dismiss was in the band of reasonable responses open to it.

Where employers lose unfair dismissal claims at Tribunal, it is often because of failings in the investigation stage.  This was perfectly demonstrated in the recent case of Smith v Teleperformance Limited, which all started with a miserly portion of chicken nuggets.

Facts

The issues at hand in the disciplinary were very narrow.  The Claimant, who had just finished a long shift, went to the canteen and ordered chicken nuggets, chips and beans (with a pot of cheese on the side) – don’t mind if I do…..  He was then presented with the meal, which contained just three chicken nuggets.  The Claimant was not happy with this and rejected the meal – saying that he was not a kid and that if he wanted a happy meal he would go to McDonald’s.  The Canteen Assistant, unhappy with the Claimant’s conduct in turning the nuggets away, made a complaint which was then investigated under the Respondent’s disciplinary policy.

The investigation

Whilst the investigation in this case was a poor one, there are lots of good examples that employers can learn from to make sure that they don’t fall fowl of the same mistakes:

Witnesses:

    • The Respondent only took statements from the two Canteen Assistants and the Claimant.
    • The Claimant referred to a lady with purple hair behind him in the queue, but the Respondent made no effort to ascertain who this was.
    • There was a security guard nearby – he was not interviewed.
    • There was a pool table by the canteen, no effort was made to see if anyone playing pool witnessed the incident.
    • The canteen was accessed by swipe card, but the Respondent did not check the records to see who was in the canteen at the time.

Failure to question evidence:

    • Canteen Assistant A alleged the Claimant swore, saying ‘I am not a f*****g kid’. Canteen Assistant B made no reference to swearing and the Claimant denied it.   Rather than checking the inconsistency with Canteen Assistant B, the investigator concluded that the Claimant did swear and that Canteen Assistant B was too shy to refer to bad language.
    • There was a dispute as to whether the Claimant ‘forcefully’ returned his meal, or simply slid it back. The investigator failed to ask sufficient questions to ascertain the level of aggression the Claimant applied when returning the meal.
    • The Tribunal held that the Respondent acted unreasonably in relying on the limited statements that were taken, rather than taking additional steps to verify the detail.

Too much emphasis on demeanour and failure to consider Claimant’s evidence:

    • The Canteen Assistants referred to the Claimant’s face going red as evidence of his rage. The Claimant explained that he had a medical condition which may have caused his face to colour, but this was not considered by the Respondent, who concluded that his face went red with anger.

The Employment Tribunal Judge was keen to emphasise the impact of a poor investigation, stating:  ‘Given the Claimant’s livelihood was at stake, it was unreasonable to rely on the evidence presented without further enquiries being made’ and held that the shortfalls in the investigation rendered the dismissal unfair.

Other elements of unfairness

The finding of unfair dismissal did not rest solely on the investigation.

Other procedural unfairness

The Claimant’s invitation to the disciplinary hearing referred to:

‘Acting violently. Including fighting or physical assault, using rude and abusive language or behaving immorally or obscenely towards other employees or our clients and customers’.

The Tribunal concluded that the Claimant was not given sufficient information about the precise allegations against him, and that this too rendered the dismissal unfair.  The Judge also criticised the categorisation of the allegations, which exaggerated the incident.

Too severe sanction

Another common mistake employers make is to determine that if someone has done something wrong, they should be dismissed.  This is fundamentally wrong, and all disciplinary policies should include sanctions short of dismissal, including warnings or final written warnings.

The Judge was not satisfied that the allegations made against the Claimant were as serious as the Canteen Assistants suggested, and held that a reasonable employer would not have dismissed the Claimant in the circumstances.

Lessons learned

Even if an employee has committed an act of gross misconduct, a poor investigation can result in a finding of unfair dismissal, which will come with side dishes of compensation and legal costs.   Anyone investigating a disciplinary matter, or chairing a disciplinary hearing, needs to carefully apply their mind to what evidence may be available and what questions need to be asked to establish the facts of the case.

Talk to us!

Investigating and probing doesn’t come naturally to everyone, but its what we do every day!  We encourage our clients to contact us at the start of an investigation, so we can work together to ensure that the investigation will stand the scrutiny of the Tribunal and, hopefully, avoid cases being brought altogether.  In the long run, this approach should save time and money. If you need help with a disciplinary case, please do not hesitate to contact Paul, Neal, Vicky or Sarah on 0161 832 2500.

Employment Law Review

Welcome to the third edition of our employment newsletter, where we focus on new developments, case law updates and hot topics in Employment Law.

Our third issue comes at a time where the Furlough Scheme has been withdrawn and put to bed. As we enter a ‘post-Covid world’, we are seeing more Covid related cased being heard in the Tribunals and discussions around compulsory vaccinations.

Contents

  1. End of Furlough – Consider your options
  2. Compulsory Vaccinations and Care Homes
  3. New duty proposed for employers to prevent sexual harassment
  4. Menopause in the workplace
  5. Case law update
  6. Talk to us!

End of Furlough – Consider your options

The furlough scheme ended on 30 September 2021, and the scheme was completely withdrawn on 1 October 2021.

With the winding down of the furlough scheme and relaxation of Covid-19 restrictions, employers should be considering their options for staff returning to the workplace. No doubt employers will be looking forward to re-welcoming employees who have been furloughed and bringing staff back to work, but unfortunately this will not be an option for all employers.   Many employers are considering changing employees’ terms and conditions or making redundancies.

If employers are considering making changes to employment terms, they need to consider whether notice needs to be given to effect the change, and even if formal consultation is required.   Employers also need to be aware of the risk of claims for unfair dismissal or constructive unfair dismissal if the changes are not agreed.

If an employer needs to make redundancies, it is important that a fair process is followed before effecting the dismissal.   If this is not done, the employer will be at risk of claims for unfair dismissal.  If 20 or more redundancies are proposed there are also strict statutory consultation procedures that must be followed and the risk of costly group litigation if this is not done correctly.

If you are considering making redundancies or changing terms and conditions, we recommend that you contact us for advice and guidance on what steps need to be taken and the risks of not following a fair process.

Compulsory vaccinations and Care Homes

On 11 November 2021 new Regulations come into force which will require Care Quality Commission registered care homes to only permit access to workers who are fully vaccinated against Covid-19, unless medically exempt. The Government has said its decision was made after extensive public consultation, and that compulsory vaccination is to promote the protection of care home residents from the risk of death or serious illness that can arise from contracting Covid-19.

The legislation has faced harsh criticism from those working in care homes, unions, and professional bodies alike and the legislation opens questions about the approach care homes will take with staff who have not had the vaccine and are not medically exempt.

There are many reasons why a person may refuse to take the vaccine, such as religious or health based, but employers should be careful in hastily dismissing staff. Employers need to seriously consider their staff’s reasons and will need to demonstrate they have acted reasonably before dismissing employees who refuse to be vaccinated.

UK Government proposes new duty for employers to prevent sexual harassment

In August the Government published its response to its 2019 consultation on measures to combat sexual harassment in the workplace and reinforce existing legal protections. As part of its response, the Government has proposed a new proactive duty on employers to prevent sexual harassment in the workplace, pledged to strengthen existing protections against third-party harassment (such as by clients or suppliers), and considered extending the time limit to bring sexual harassment claims.

The response contains very little detail about how this duty will be implemented, although we do expect the Equality and Human Right Commission to issue a code of practice in the near future.

Proactive Duty

At present, employers are under no proactive duty to prevent sexual harassment in the workplace. If a member of staff reports an incident of sexual harassment an employer can be held liable unless it can show that it took all reasonable steps to prevent the sexual harassment form occurring. Under the new proposed duty, employers will still be required to take reasonable steps, but they could also be held accountable for failing to take preventative steps to stop harassment, even if no incident has occurred.

Protections against third-party harassment

Similar to the above, the Government has not provided any clear indication as to how this will be introduced, although it has confirmed that it will introduce a defence of having taken all reasonable steps to prevent third party harassment. There is no clarification if this will be a proactive duty. It is also unclear as to whether this will extend to all forms of harassment, or if it will only apply to sexual harassment.

Extending time limits to bring a claim

Currently, claims brought under the Equality Act must be made within three months of the act, or most recent act, complained of. The Government is considering extending the time limit to six months in relation to all claims made under the Equality Act, not just sexual harassment.

Menopause in the workplace

Women over the age of 50 are the fastest growing group in the workforce. In 2019 BUPA and the Chartered Institute for Personnel and Development conducted a survey which found that three in five women of menopause age were negatively affected at work.

With such a large portion of the work force experiencing the menopause during their working life, it is an increasingly pressing topic for employers. There is also a rise in number of women being dismissed or treated unfairly for reasons related to the menopause.

The Government has opened an inquiry into menopause-based discrimination experienced in the workplace.

Currently, women who are treated unfairly for reasons related to the menopause have to bring claims under the sex or disability discrimination legislation in the Equality Act.  The menopause is not a disability unless the individual concerned meets the statutory requirements in their particular circumstances, which is rarely the case, and neither type of claim is easy to pursue.  The purpose of the inquiry is to examine whether or not current equality laws need to be strengthened and if the menopause should be added as a protected characteristic under the Equality Act.

The inquiry closed submissions for evidence on 17 September 2021. We will update you when the findings are released.

Case law update

Covid Case Law

In our last update, we discussed the case of Accattatis v Fortuna Group (London) Ltd. Since then the Tribunals have heard a number of Covid-19 related cases

In Gibson v Lothian Leisure, Ham v ESL BBSW Ltd and Monanaro v Lansafe the Tribunal found that Covid-19 was a serious and imminent threat, and that the Claimant’s dismissal was automatically unfair after he was dismissed for raising concerns about the lack of Covid-related safety measure at his workplace.

Gibson and Accattatis relate to the first lockdown so the same might not be said for subsequent lockdowns or the situation following mass vaccination.

In Mhindurwa v Lovingangels Care Ltd the Employment Tribunal held that there was a duty to consider furloughing employees as an alternative to redundancy. Whilst furlough should be considered (or should have been when the scheme was running), that does not mean that is has to be offered. This approach was also upheld in Handley v Tatenhill Aviation Ltd.   This will not apply now that the furlough scheme has ended, but these cases serve as a reminder that employers do need to consider alternatives to redundancy before effecting the dismissals.

Pay for zero-hours workers when suspended

This was considered by the Employment Appeal Tribunal (EAT) in Agbeze v Barnet Enfield and Haringey Mental Health NHS Trust Mr Agbeze was a healthcare assistant who provided his services as a ‘bank’ worker. Under the terms of Mr Agbeze’s contract, he was only paid for the hours he worked. There was no obligation on the NHS Trust to offer him work, nor was there an obligation for him to accept work. In essence, he was employed under a zero-hours contract.

Following an allegation of misconduct, the Trust suspended Mr Agbeze, meaning he was not eligible to be offered any work and he was not paid whilst the case was investigated.

Mr Agbeze asserted that there was an implied term in his contract which meant that he was entitled to be paid average wages during the suspension period.  The EAT upheld the Tribunal’s decision, that there was no obligation for the Trust to offer work, nor for Mr Agbeze to accept work, and that there was no express or implied term that required the Trust to pay Mr Agbeze during his suspension.

You can see other updates on other topics  in our earlier blogs here  disability discrimination and rights of appeal.

Talk to us!

We want to encourage our clients to pick up the phone whenever they need help with employment law matters.  We offer a variety of services to our clients, including helplines, insurance backed products for Employment Tribunal claims and other fixed fee services.   If you would like to discuss how we can help you and your business deal with Employment Law matters, please contact either Paul Stedman, Vicky Beattie, Neal Mellor or Sarah O’Brien on 0161 832 2500.

Redundancy – Do employers have to offer a right of appeal?

Anyone who has been through a redundancy process, whether as an employer or employee, will understand the importance of following a fair procedure.

Unlike conduct or capability dismissals, there is no statutory right of appeal following a dismissal by reason of redundancy, and some employers chose not to offer an appeal in order to avoid the associated time and cost.

In Gwynedd Council v Barratt & others, the Court of Appeal considered whether the failure to offer an appeal in a redundancy process rendered the dismissal of two employees unfair.

The Claimants won their cases for unfair dismissal at the Employment Tribunal.   One of the findings of unfairness was the failure to offer the right of appeal.

The Claimants were teachers who were dismissed when the School they were working at closed. A new School subsequently opened on the same site, and they were not rehired. The Tribunal heard that there was no consultation over the closure of the School and no appeal was offered to the Claimants. The Claimants also applied for new jobs at the new school, but their applications were unsuccessful.

Gwynedd Council lodged their appeal on several grounds, all of which were dismissed by the Court of Appeal. The Court made it clear that the absence of any appeal or review procedure does not of itself make the dismissal unfair, so long as the original selection for redundancy came after a fair procedure (which it didn’t in this case). The Court added that the absence of an appeal is not fatal to an employer’s defence, but it is one of the many factors to be considered in determining the overall fairness of a dismissal by reason of redundancy.

Talk to us!

There are lots of factors to consider when carrying out a redundancy process. Employers should be careful to ensure that procedure they follow is fair and reasonable in order to minimise the risk of litigation. If you are considering making redundancies, please do not hesitate to contact Paul, Vicky, Neal or Sarah on 0161 832 25000

The Equality Act 2010 sets out various types of discrimination which most employers are aware of (direct, indirect, harassment and victimisation).  When it comes to disability discrimination however, there are additional protections for disabled workers, and certain less well understood obligations are placed on employers.

In this article, we look at two recent cases which dealt with the duty on employers to make reasonable adjustments and what constitutes a ‘reasonable adjustment’.

When does the duty arise?

The duty to make reasonable adjustments arises where a worker or an applicant is placed at a substantial disadvantage, compared to people who are not disabled, by:

  • A “provision, criterion or practice” (PCP) operated by the employer (this can be many things, such as the application of a particular policy or working practices).
  • A physical feature at the employer’s premises (such as access to a building).
  • A failure to provide an auxiliary aid (such as a special screen for the partially sighted).

When the duty arises, the employer is required to take such steps as are reasonable to alleviate the disadvantage (or provide the auxiliary aid where applicable).

What is a “reasonable” adjustment?

Not all adjustments are reasonable.  There are a variety of factors to take into account, including:

  • Will the adjustment alleviate the disadvantage?
  • Is the adjustment practicable?
  • What are the costs, and the financial situation of the business?
  • How will the adjustment disrupt the employer’s activities?
  • Is there any external funding available?
  • How big is the business?

In two recent cases, the Employment Appeal Tribunal (EAT) considered whether the adjustments already put in place by the employers were sufficient to offset the disadvantages suffered by the employee, and whether the adjustments the Claimant sought were reasonable.

In Martin -v- Swansea the Claimant was unable to perform her role by reason of a disability and went on long term sickness absence.  Despite being placed on the employer’s redeployment register for an extended time, the Claimant did not find a new role and was ultimately dismissed.

The application of the employer’s sickness absence policy placed Ms Martin as a substantial disadvantage (dismissal). The EAT considered whether the employer took reasonable steps to alleviate that disadvantage.  The Claimant contended that her employer should have made a reasonable adjustment by placing her in a different role.  The EAT disagreed, finding that the role would have to be suitable based on the Claimant’s skills, rather than simply giving her a job.

The EAT was also satisfied that the employer had already made reasonable adjustments, by placing the Claimant on its redeployment register for an extended period.  It concluded that extending the redeployment period further would not have led to a different result and would not have alleviated the disadvantage of being dismissed.

In Aleem -v- E-Act Academy, the Claimant was unable to continue in her role due to disability.  She was redeployed to a lower paid role as an alternative, with a three-month protected period on her original higher salary.  The period on the higher salary was extended to six months as the employer considered the Claimant’s grievance about reducing her pay.  After the grievance process concluded, the Claimant’s salary was reduced.  The Claimant brought a claim, that her employer had failed to make a reasonable adjustment by not retaining her on her full salary in the new role.

The EAT held that it was not a reasonable to require the employer to keep paying the Claimant at her higher salary indefinitely, for a lower graded role.

Summary

There are lots of factors to consider when it comes to making reasonable adjustments:

  • Is the individual disabled?
  • Is there something at work that is putting them at a substantial disadvantage?
  • What steps are reasonable for us to take to remove that disadvantage?

Each of these questions is fact sensitive and can be legally complex, as well as being delicate to deal with from a HR perspective.  If you want to find out more about this topic, or need advice on a similar situation with any of your staff, please do not hesitate to contact Paul, Neal, Vicky or Sarah on 0161 832 2500. 

Welcome to the second edition of our newsletter, where we focus on new developments, case law updates and hot topics in Employment Law.

Our first issue marked the anniversary of the first lockdown and we considered the impact of the pandemic.  The Government has just announced that all restrictions in place in England have been lifted as of Monday 19 July 2021.  The easing and lifting of lockdown measures will vary in the other home nations but it is hoped that a return to something that resembles the ‘pre-pandemic normal’ is on the horizon.  

The past 15 months have been a difficult and testing time for both employers and employees and with restrictions now lifting/easing many employers have been and will continue to take stock on how the past year has affected and may continue to impact their operations.  For some answers to the most common questions, we have faced from business owners in recent weeks please see our blog post https://bbslaw.co.uk/returning-to-the-office-post-lockdown/  

Keeping with the theme of the pandemic here is a quick Covid-19 related update

Travel restrictions   there are currently conditions in place which are attached to foreign travel from England.  Foreign destinations are classified as Green, Amber or Red with the list being subject to frequent change. 

The latest government update is that unless individuals are fully vaccinated there is a mandatory requirement to quarantine for 10 days following foreign travel to Amber list countries, although the rule for fully vaccinated individuals will not apply to France (on the Amber list) and individuals returning from France must quarantine for 10 days upon arrival in England. For those returning from Red list countries, they must quarantine for 10 days in a managed hotel.   

The requirement for individuals to quarantine is likely to impact businesses and we recommend that employers are mindful of the mandatory requirements when authorising holiday requests.  Thought should be given to how operations will be affected if there is a reduced workforce due to quarantine.    Employers may want to consider adopting the following approach for employees returning from holiday who then need to quarantine.  This is subject to ongoing government guidance, and we would recommend any such requirements are confirmed to employees in writing;

i. If a role permits home working, employees may work from home for the duration of the  period of quarantine, however, all usual terms of employment will apply, including  usual hours of work. ii. If an employee has enough remaining annual leave they may choose to take a further period of leave to cover all or part of their quarantine period.

iii. If home working cannot be accommodated or the employee does not wish to take/does not have enough remaining annual leave, any period of quarantine must be taken as unpaid leave.  

Furlough – as of 1 July 2021 the Furlough Scheme has seen some changes which mean that employers are required to take on more of the costs relating to furloughed employees.  The below table sets out how the scheme has begun to, and will further taper down between June and September 2021.   

June

July

August

September

Government contribution: wages for hours not worked

80% up to £2,500

70% up to £2,187.50

60% up to £1,875

60% up to £1,875

Employer contribution: employer National Insurance contributions and pension contributions

Yes

Yes

Yes

Yes

Employer contribution wages for hours not worked

No

10% up to £312.50

20% up to £625

20% up to £625

For hours not worked employee receives

80% up to £2,500 per month

80% up to £2,500 per month

80% up to £2,500 per month

80% up to £2,500 per month

(Source:  https://www.gov.uk/government/publications/changes-to-the-coronavirus-job-retention-scheme/changes-to-the-coronavirus-job-retention-scheme)

What else is and has been happening?

The new Employment Bill

The long-awaited Employment Bill, which was expected to come in to force following the Queen’s Speech in May 2021, has been put on hold.  Whilst the bill has been delayed it is expected to come in to force at a future date. Some reforms which are expected include; 

    • The introduction of a single labour market enforcement body to ensure that vulnerable workers are better informed of their rights, and to support businesses in compliance.
    • Plans to ensure that all tips and service charges go to workers in the hospitality, leisure and service sectors.  
    • Extending redundancy protection to cover pregnant employees, so that they are given priority for suitable alternative employment.
    • Extended leave for parents of children in neonatal care.

Some of these areas were subject to consultation, the outcome of which is still awaited. 

Gender pay gap reporting

Employers with 250 or more employees are required to publish their gender pay gap report by 4 April (30 March for public-sector employers).

Due to the impact of the pandemic, the Equality and Human Rights Commission (EHRC) have announced that employers will have an additional six months after the current deadline to report their gender pay gap information – therefore, 5 October 2021, meaning that no enforcement action would be taken before this date.  The EHRC is however encouraging employers to report their data before October 2021, if possible.

Right to Work

The EU Settlement Scheme, which allowed EEA nationals who were in the UK at the end 2020 to formalise their status, closed to most applications on 30 June 2021. On 18 June 2021 the Home Office released new guidance for employers on carrying out right to work checks.  Up until 30 June 2021, EEA nationals could present their passport or national ID card as evidence of their right to work in the UK, however, as of 1 July 2021 EEA citizens and their family members will need an immigration status in the UK and will no longer be able to rely on their passport/national ID card.

Due to COVID-19 restrictions the new guidance confirms that the temporary adjustments to right to work checks made to assist remote working arrangements and social distancing, will now be extended to 31 August 2021.  From 1 September 2021 employers will be required to either check their prospective employees’ original documents or check the prospective employees’ right to work status online.

Since our last update the following important increases have also come into force

As at 1 April 2021 

The national living wage increased £8.91 per hour and the age threshold for the national living wage was altered so it now applies to 23 and 24 year olds (previously it was only available only to those aged 25 and over).

  • Other national minimum wage rates increased as follows:
    • £8.36 per hour for workers aged 21 and 22;
    • £6.56 per hour for workers aged 18 to 20; 
    • £4.62 per hour for workers aged 16 and 17;
    • £4.30 per hour for apprentices under 19 and those in the first year of their apprenticeship.

As at 4 April 2021

  • The weekly rate of statutory maternity, paternity, adoption, shared parental and parental bereavement pay increased to £151.97.

As at 6 April 2021

  • The weekly rate of statutory sick pay increased to £96.35.

All employers should be mindful of the above increases and if any of your policies and documents refer to precise rates (such as a sickness absence procedure) this should be updated.

  • New limit on the weekly capped sum for statutory redundancy pay, this is now £544 per week.   

Where an employer dismisses an employee by reason of redundancy (if they have two years’ service) a sum is calculated based on the employee’s weekly pay, length of service and age. 

Case law update

Covid-19 related dismissal – this is an interesting case that has arisen as a result of the pandemic.

Accattatis v Fortuna Group (London) Ltd 

The Claimant made repeated requests during March and April 2020 to work from home or to be furloughed as he said that he felt uncomfortable commuting and attending the office during lockdown.  The Claimant was told that his job could not be done from home and that furlough was not possible due to how busy the employer was.  The Claimant was told that he could take holiday or unpaid leave. He declined these options, repeated his requests and was later dismissed.

Employees usually require 2 years continuous service in order to pursue a claim for unfair dismissal.  In this case the Claimant did not have the requisite length of service, however, he claimed automatic unfair dismissal under section 100(1)(e) of the Employment Rights Act 1996.  Section 100(1)(e) states that employees may refuse to work if they consider that there is “serious and imminent danger”.

The Employment Tribunal accepted that based on public health guidance available at the time, the Claimant had a reasonable believe that commuting during the lockdown could amount to serious and imminent danger. However, under section 100(1)(e) the Claimant was required to take appropriate steps to protect himself. The employer was unable to offer home working but did provide a possible alternative (holiday or unpaid leave), which the Claimant refused stating he wanted to be furloughed or to work at home on full pay. The Tribunal found that the Claimant’s requests were not appropriate steps to protect himself, and his claim failed.

Whilst the decision is not binding on other Tribunals it is a reminder that the pandemic may not on its own be a reasonable justification for an employee to refuse to attend work under section 100(1)(e), if an employer has tried to reasonably consider an employee’s concerns.   The case is also a helpful reminder that the Tribunal will consider the public health guidance that was available at the time, so as more and more people are vaccinated and restrictions are eased, claims of this nature will be less likely to succeed.

Protection from discrimination – gender-critical views 

Forstater v CGD Europe

The Employment Appeal Tribunal (EAT) has handed down a significant judgment which can protect individuals who hold gender critical beliefs from discrimination.

Ms Forstater worked as a consultant for CGD Europe. After expressing a number of gender critical beliefs via social media her consultancy contract with the business was not renewed.  Ms Forstater presented a claim for discrimination on the basis of her philosophical belief, which is one of the protected characteristics listed within the Equality Act.  The claim failed in the Employment Tribunal and the judgment stated that the way in which Ms Forstater expressed her gender critical beliefs was not “worthy of respect in a democratic society” and was therefore, not protected. 

The decision was appealed, and the appeal was upheld.  This outcome means that beliefs will be capable of protection even if they are expressed in a way that may offend or create a hostile and degrading environment, as such it is unlawful to discriminate on this basis. 

Employment Tribunal makes a record discrimination award

Barrow v Kellogg Brown and Root (UK) Ltd

An Employment Tribunal has given the second highest award ever made in an Employment Tribunal, amounting to over £2.5 million. 

After 36 years of service the Claimant presented claims against his former employer for unfair dismissal, direct disability discrimination, harassment related to a disability, discrimination arising from disability, failure to make reasonable adjustments and victimisation.

The Claimant was excluded from work following an email exchange with his manager. At this time the Claimant was taking steroids to assist his cancer symptoms, which at the time had not been diagnosed, and was suffering from adverse side effects which affected his mental health and behaviour.

The Claimant was called to a meeting and dismissed, without any formal procedure being followed and without being given any detail as to the reasons for his dismissal.   Following his dismissal, the Claimant was diagnosed with a rare form of cancer and he informed the employer of this.  The employer attempted to rectify the dismissal procedure followed and instigated a retrospective dismissal process.  The outcome was to dismiss due to a breakdown in the implied term of trust and confidence.  

The Employment Tribunal considered the original dismissal, and the later dismissal which was labelled a ‘sham’.  The Tribunal considered that the dismissal was predetermined, and faults/defects were found in the process. The Tribunal pointed criticism at the attempts made by the employer to make the decision to dismiss appear credible.  The Tribunal concluded that no reasonable employer would have acted in the way the employer did in dismissing an employee who had spent 36 years working for the company.

The claims of unfair dismissal, harassment and discrimination arising from disability succeeded.  The employee was awarded a career-long loss award, aggravated damages and a further £25,000 for pain, suffering and loss of amenity.

This case demonstrates that discrimination awards are not subject to a cap, unlike unfair dismissal claims, and it highlights the importance of employers following a fair dismissal process and not predetermining the outcome. 

Talk to us!

We want to encourage our clients to pick up the phone whenever they need help with employment law matters.  We offer a variety of services to our clients, including helplines, insurance backed products for Employment Tribunal claims and other fixed fee services.   If you would like to discuss how we can help you and your business deal with Employment Law matters, please contact either Paul Stedman, Vicky Beattie, Neal Mellor or Sarah O’Brien on 0161 832 2500.

Following the Prime Minister’s announcement on 31 October, additional financial support is being made available to individuals and businesses, including an extension to the furlough scheme, which will now remain open until December. 

Vicky Beattie and Neal Mellor of our Employment Team provide a useful summary of the latest changes

  • Employers of any size are eligible for the extended furlough scheme, which will continue for a further month.
  • Employees can be furloughed full time or can come back to work on a part time basis.
  • All employers with a UK bank account and UK PAYE schemes can claim the grant. The employer does not need to have previously used the furlough scheme.
  • Employees need to have been on an employer’s PAYE payroll by 23:59 30 October 2020 to be eligible for extended furlough. This means a Real Time Information (RTI) submission notifying payment for that employee to HMRC must have been made on or before 30th October 2020.
  • Employees can be on any type of contract to be eligible.
  • Employers will be able to agree any working arrangements with employees they are claiming for.
  • Employers can claim the grant for the hours their employees are not working, calculated by reference to their usual hours worked in a claim period. Such calculations will be broadly similar to the current furlough scheme.
  • In order to claim the grant for furloughed hours, employers will need to report and claim for a minimum period of 7 consecutive calendar days.
  • Employers will need to report hours worked and the usual hours an employee would be expected to work in a claim period.
  • For worked hours, employees will be paid by their employer subject to their employment contract and employers will be responsible for paying the tax and NICs due on those amounts.
  • For hours not worked by the employee, the government will pay 80% of wages up to a cap of £2,500. Employers will pay for the NICs and pension contributions. The grant must be paid to the employee in full.
  • Employers can choose to top up employee wages above the scheme grant at their own expense if they wish.

The Job Support Scheme (JSS), which was due to commence on 1 November, has been postponed until the extended furlough scheme ends.  

It is expected that further guidance and details, including how to claim under the extended furlough scheme through an updated claims service, will be provided shortly.

If you have any queries in relation to this or any employment issue, please contact Vicky Beattie or Neal Mellor by email or telephone – vicky@bbslaw.co.uk / neal@bbslaw.co.uk 0161 832 2500.