Employment Briefing - March Update

Martin Stephen

Published by
Martin Stephen

7th March 2019

Welcome to our Employment news briefing, providing a summary of some of the recent employment judgements. 

If you have any questions about any of the topics covered, or would like to discuss anything with our Employment team, please call Martin Stephen on 0141 248 3434 or email mss@wjm.co.uk

Automatic Unfair Dismissal

The Employment Appeal Tribunal has ruled that, when claiming dismissal, there must be an actual infringement of an employee’s statutory rights, as opposed to a mere intention or threat of infringement.

In Spaceman v. ISS Mediclean Ltd t/a ISS Facility Service Healthcare, the claimant, a hospital porter against whom there was an allegation of sexual harassment and who was dismissed by his employer for ‘gross misconduct’, brought a claim under s104(1)(b) of the Employment Rights Act 1996 alleging that his statutory rights had been infringed.

During his disciplinary hearing, the claimant alleged unfairness on the part of his employer, specifically, that they had already made the predetermined decision to dismiss him. He made this allegation on the basis that his co-worker, who he had asked to be his representative at the hearing, said he was to be ‘sacked anyway’. At the Employment Tribunal (ET), the claimant said that (1) his allegation constituted the assertion of his statutory right not to be unfairly dismissed; and (2) it was his making of that allegation that resulted in his dismissal.

The ET struck out his claim and, on appeal, that decision was upheld.

The Employment Appeal Tribunal (EAT) held that section 104(1)(b) requires an allegation by the employee that there had been an actual infringement of a statutory right, an allegation that there may be a breach is insufficient. The right in question in this case was the right not to be unfairly dismissed and, because the assertion of this right could only be made after the dismissal, it could not be relied on as the reason for dismissal.

In other words, in the context of the right not to be unfairly dismissed, s 104(1)(b) requires an allegation by the employee that he has been unfairly dismissed, not merely that his employer is has taken steps which are likely to result in, or threaten, unfair dismissal in the future.

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TUPE Transfers- Protection against dismissal?

In the recent decision of Hare Wines Ltd v Kaur [2019] EWCA Civ 216, the Court of Appeal considered the question of whether an ET was correct in finding that a dismissal was by reason of a TUPE transfer despite also finding that the employee in question had a poor working relationship with the transferee company.

The claimant, Ms Kaur, had her employment terminated on the day of a TUPE transfer and she subsequently claimed to have been unfairly dismissed. The transferee company asserted that the claimant had opposed the transfer on the basis that she had a difficult working relationship with a co-worker who was also the prospective director of the company. The ET found that the claimant had not objected to the transfer, rather, she was dismissed because the transferee company did not want to take her on. The ET ultimately concluded that the principal reason for the termination of the claimant’s employment was the transfer and, on that basis, it was automatically unfair under relation 7(1) of the TUPE Regs.

The transferee unsuccessfully appealed to the EAT and the Court of Appeal. In upholding the ET’s decision, the Court of Appeal considered two key facts; namely;
(a) The claimant was dismissed on the day of the transfer, implying that it was the sole reason for dismissal; and
(b) The claimant had a poor relationship with her co-worker whilst working for the transferring employer, and no steps were taken to terminate her employment at that time.

Whilst this case is merely a re-statement of existing case law, it serves as a helpful illustration of the competing reasons for dismissal in the context of a TUPE transfer.

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New ACAS Guidance- Age Discrimination

ACAS have released new guidance this month with a view to assisting employers and line managers in preventing unfair treatment at work, eradicating bias against older and younger employees/workers and, more generally, in dealing with an age diverse workforce.

The new ACAS advice includes guidance on recruitment, training, performance management and redundancy and other areas where age discrimination may be most likely to occur.

Alongside the guidance, ACAS have also produced a ‘top 10 obligations’ fact sheet for employers along with a myth v facts worksheet.

The full guidance is available here.

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Disability Discrimination

In Nissa v Waverly Education Foundation Limited, the EAT considered the question of how ‘long term’ is to be assessed for the purposes of defining a disability under section 6 of the Equality Act 2010.

The claimant was a science teacher who suffering from symptoms of fibromyalgia, a condition that causes muscle stiffness and fatigue. On 21st August 2016, she resigned and brought a claim for disability discrimination, claiming her impairment had ‘long-term’ adverse effects on her ability to carry out her day-to-day working activities. Whilst the respondent did not dispute the fact that the claimant was suffering from physical and mental impairment, they argued that she was not disabled within the meaning of section 6 of the Equality Act 2010.

The ET held that, in light of the fact that (1) the claimant’s diagnosis was not made until 12 August 2016; and (2) her consultant had expressed hope that her symptoms would improve slowly, those impairments were not ‘long-term’. The ET also found that the claimant would have been unsuccessful in any event as her impairments were too vague and imprecise to be considered ‘substantial’.

On appeal, the EAT found in favour of the claimant and criticised the ET for adopting a narrow approach by focussing on the claimant’s medical diagnosis rather than the effects of her impairment. As for the question of whether her impairments were ‘substantial’, the EAT held that the ET had failed to take account of relevant evidence, including the claimant’s testimony that carrying out her day-to-day activities was ‘extremely difficult, painful and exhausting’.

The EAT’s ruling in this case serves as a helpful reminder to tribunals that, when determining disability within the meaning of section 6 of the Equality Act 2010, a broad approach should be adopted.

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The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at March 2019. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 302 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.