Employment Law Monthly Update – December 2018

Dec 5, 2018

We are pleased to provide you with the Herrington Carmichael LLP employment law update for December 2018.

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

  1. Dismissing individuals with long term disability benefits
    In the recent Employment Appeal Tribunal (EAT) case of Awan v ICTS, the EAT considered circumstances related to Mr Awan’s dismissal on grounds of capability. Mr Awan suffered with depression and was signed off on long term sick leave. He was also contractually entitled to long term disability insurance.

Mr Awan’s employment transferred, under the Transfer of Undertaking (Protection of Employment) Regulations from American Airlines to ICTS, who subsequently dismissed him on capability grounds. His dismissal meant that he was no longer entitled to receive the insurance benefit.

The Employment Tribunal held that the dismissal was fair.  However the EAT disagreed and held that a term was implied into the contract so that Mr Awan should not be dismissed on the basis of his continuing inability to attend work.  This was in order that he could receive the benefit of the disability insurance.

It is important to consider all of the potential benefits an employee may be entitled to, if an employer is considering dismissing an employee.  Where a disability insurance or permanent health insurance is available to an employee, it makes it very difficult for an employer to dismiss an employee fairly, outside of a proper enquiry into whether the employee has an entitlement to the benefit. Each case will turn on its facts and it is therefore important to take legal advise in these circumstances.

  1. Part time working for shift patterns
    In the recent case of British Airways plc v Pinaud, the Court of Appeal held that part time workers for British Airways had been treated less favourably than their full time equivalent.

Mrs Pinaud worked part time for BA on the basis of a 14 day on, 14 day off shift pattern as a cabin crew purser. A full time counterpart works on the basis of a 6 days on, 3 days off shift pattern. Mrs Pinaud was paid 50% of the salary of her full time counterpart.

When taken as an annual number of days to be worked, Mrs Pinaud was required to be available for work 143 days per year, whereas a full time counterpart would have to be available 260 days per year. Therefore, Mrs Pinaud had to be available for 53.5% of the days a full time purser needed to be but was only paid 50% of the salary.

The Court of Appeal confirmed that this was less favourable treatment. When employees are working on different shift patterns, but undertaking the same work, careful analysis should be undertaken as to the total number of hours worked by each employee. For BA, this is potentially a very large group action and therefore employers with large groups of employees working part time should bear this in mind.

  1. Drug testing
    In the recent case of Ball v First Essex Buses Limited, the Employment Tribunal held that Mr Ball’s dismissal was unfair.

First had a policy of randomly drug and alcohol testing employees. Such a test was carried out on Mr Ball, who failed, with the results coming back with evidence of cocaine being present in the test. Mr Ball denied that he had taken cocaine and provided First with his own samples for testing.

First did not reasonably investigate Mr Ball’s claims that he had not taken cocaine and did not submit his hair follicle sample for testing. Instead, they dismissed Mr Ball for gross misconduct.

Even where evidence appears conclusive, an employer must still carry out a reasonable investigation.  If Mr Ball’s contrary evidence was not to be considered, a proper reasoning for this would have to be given.  In this case, it was appropriate that further investigation was undertaken.  In misconduct based dismissals, an employer must always undertake a reasonable investigation to give reasonable grounds for the genuine belief of any misconduct alleged.

  1. Tendency to steal
    In the case of Wood v Durham County Council, Mr Wood worked as an Anti-Social Behaviour Officer, a role which is subject to a code of conduct and is subject to a certain level of vetting. Mr Wood suffered from post-traumatic stress disorder (PTSD) and associative amnesia.  During the process of obtaining clearance to undertaken his role, it was found that Mr Woods had been served with a Penalty Notice for Disorder as a result of him stealing several items from Boots.   Mr Wood’s clearance was later refused.

Mr Wood argued that his actions arose from his PTSD and that his dismissal was, therefore, discriminatory.  Durham County Council accepted that Mr Wood’s PTSD would likely be considered a disability, but argued that the tendency to steal was an excluded condition. The EAT agreed with Durham County Council and therefore Mr Wood’s dismissal was not discriminatory.

It is important for employers to consider the root cause of an employee’s actions when determining whether or not they are associated with, or to be considered disabilities. This may therefore affect the outcome of any investigation.  This is a very evenly balanced case and employers should always take care with disabled employees and terminating employment on the basis of matters associated to their disability. This can give rise to claims of discrimination by association.

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.