Employment Law Monthly Update – April 2019

Apr 3, 2019

We are pleased to provide you with the Herrington Carmichael LLP employment law update for April 2019.

This is a key note summary of some of the main developments in employment law in the last month.

1. Suspension
In the case of London Borough of Lambeth v Agoreyo the Court of Appeal held that an employer may suspend an employee without breaching the implied term of trust and confidence, when it has reasonable and proper cause for doing so.

The Claimant, a teacher, was suspended after she was accused of using excessive force against two young pupils with special educational needs.  The Claimant argued it was a ‘kneejerk’ suspension and a breach of the implied term of mutual trust and confidence.  So, she resigned and bought a claim.  The High Court held there had been a breach of the implied term but the decision was appealed. 

The Court of Appeal held that the correct legal test was whether the Head Teacher had reasonable and proper cause to suspend rather than whether it was necessary to suspend.  On the facts, they considered there was reasonable and proper cause to suspend and the teacher’s claim failed. 

When suspending employees, employers must make careful consideration and appropriate records as to the reasons for suspension.  If an employer gets this wrong, the employee may be entitled to resign and claim constructive dismissal. 

2. Indirect Discrimination 
The Employment Appeals Tribunal (“EAT”) in The City of Oxford Bus Services Limited t/a Oxford Bus Company v Harvey held that an Employment Tribunal should not solely focus on how a provision, criterion or practice (PCP) is applied to an individual Claimant to consider whether it is justified.

The Claimant was a bus driver and a Seventh Day Adventist.  He requested to not work between sunset on Friday and sunset on Saturday in order to observe the Sabbath.  The Respondent granted his request on a temporary basis but became concerned about the risks if other drivers asked for time off for religious events or festivals and that this may become unmanageable.  So, the Respondent would not agree to accommodate the Claimant’s request on a permanent basis.  The Claimant therefore brought a claim of indirect discrimination on the grounds of religion.

The Employment Tribunal held that requiring bus drivers to work 5 days out of 7 put the Claimant at a particular disadvantage and the Respondent’s legitimate aim of maintaining a ‘harmonious workforce’ was insufficient on the facts.  However, the EAT did not agree with the ruling and overturned it.  The EAT held that, when deciding if an employer’s working arrangements are justified, a Tribunal must justify the PCP in the circumstances of the business, not just in its application to the individual. 

This is an important reminder for employers of the complexities of discrimination claims and the need to ensure that PCPS are assessed in the context of their business rather than the specific individual. 

3. Time Limits
The case of Acetrip v Dogra considered whether an extension of time should be given for filing an appeal when supporting documents were filed four weeks late. The EAT held, on the facts of the case, an extension should not be given.  

Mr Dogra won a claim for automatically unfair dismissal.  Acetrip appealed to the EAT but the appeal was received outside of the prescribed time limits.  Acetrip then appealed against the decision to not extend the time limit.  

Time limits are strictly applied in both the Employment Tribunal and the EAT.  Therefore, if a time limit applies, the party to whom it applies must comply with it and it is rare for exceptions to be granted.  

4. Disability Discrimination
In any unusual case, the EAT held, in the case of iForce v Wood, that unfavourable treatment could not arise as a consequence of mistaken belief in claims of discrimination arising from disability. 

The Claimant was a packer working at a fixed work bench.  She suffered from osteoarthritis, which was exacerbated by the damp and cold.  The employer requested the Claimant work between benches but she refused on the basis that she thought it would exacerbate her disability.  She was subsequently issued with a written warning. The Employment Tribunal agreed, in the first instance, that this was unfavourable treatment arising in consequence of a disability. 

The EAT, however, did not uphold this decision.  The EAT held that there should be a connection between the refusal to work on the benches and the disability, and the connection had not been established.  The Employer had produced evidence to show there was no material difference in temperature or humidity throughout the warehouse. It was therefore decided the warning did not arise from the disability but the Claimant’s mistaken belief that moving benches would exacerbate her condition. There could be no unfavourable treatment where there has been a mistake belief. 

This case is an important reminder that an employee’s perceived connection is not sufficient.  The test is objective and so the employee must demonstrate that there is an actual link between the ‘something’ arising and the disability.  However, the EAT did not rule out that a false belief would never amount to unfavourable treatment. It is important that employers take time to consider whether there is a link and to make appropriate investigations with an employee who is, or may be, disabled.

For further information, or to discuss the issues raised by this update, please contact Herrington Carmichael’s Employment Department on 0118 977 4045 or employment@herrington-carmichael.com. 

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

By Alistair McArthur

Partner, Head of Employment Law
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