Employment Law Monthly Update August 2018

Aug 7, 2018

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

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

  1. Successful dismissal appeals re-instate employees’ contracts

In the case of Patel v Folkestone Nursing Home Ltd, the Claimant had been dismissed based on his misconduct. He appealed this decision based on the procedure which was followed. The Respondent investigated this and upheld his appeal but did not confirm whether one of the allegations of misconduct had been overturned.

 As the Claimant’s appeal was successful, the Respondent confirmed that he should return to work. However, the Claimant refused to return and claimed that he had been unfairly dismissed. The Employment Tribunal held that a successful appeal against dismissal did not automatically mean that an employee’s contract was reinstated where the contract was silent on this issue. The Court of Appeal has overturned this decision and confirmed that the successful appeal ‘extinguished’ the original dismissal so the Claimant’s employment contract should have continued.

  1. Summary dismissal of employees with less than two years’ service

 In order to bring a claim for ordinary unfair dismissal, an employee needs to have at least two years’ service. An issue arises where the employee is approaching this time frame as their statutory minimum notice period of one week will also need to be taken into consideration. This effectively means an employee needs 1 year and 51 weeks service to be able to claim ordinary unfair dismissal. Therefore, if an employer is considering dismissing an employee when approaching this time limit, care should be taken.

In the recent case of Lancaster and Duke Ltd v Wileman, the Claimant was summarily dismissed on the basis of gross misconduct two days prior to achieving her two years’ continuous service period. The Claimant claimed that she had been unfairly dismissed as her effective date of termination should have been extended by the statutory minimum notice period. The Employment Tribunal considered this as a preliminary issue and held that the effective date of termination should be extended. However, the Employment Appeal Tribunal did not agree with this finding and held that, in circumstances where an employer was entitled to dismiss an employee by reason of gross misconduct, the effective date of termination should not be extended. In this case there had not been a determination as to whether the employer was entitled to dismiss the Claimant for gross misconduct and so this point is still to be decided.

  1. Philosophical belief needs to be held by a group of people to be a protected characteristic

 In the case of Gray v Mulberry, the Claimant refused to sign an employment contract with standard intellectual property provisions as she was writing a novel and was worried that the Respondent would then own the rights to her work. The Respondent amended the contract to exclude this but the Claimant still refused to sign the contract and was ultimately dismissed. The Claimant claimed that she had a philosophical belief in the sanctity of copyright law and that, therefore, the dismissal was related to a protected characteristic of “religion or belief”.

The Employment Appeal Tribunal confirmed that the Employment Tribunal had correctly held that that the belief was not sufficiently cohesive and could therefore not be considered a philosophical belief. In any event, there could have been no indirect discrimination as there is a requirement for this claim for a group of people to be disadvantaged, whereas there is no evidence that anyone other than the Claimant holds this belief.

While this case confirms the position in relation to what constitutes a philosophical belief, it also provides some reassurance to employers that any alleged belief will not be considered a protected characteristic where it is being claimed for personal gain (i.e. the Claimant was alleging this belief to protect her own personal works, and was not claiming this more generally in the public interest).

  1. Disciplining disabled employees should not be done to punish the employee

In the case of Ali v Torrosian (t/a Bedford Hill Family Practice), the Claimant had worked for the Respondent for a number of years. The parties accepted that the Claimant was disabled and the Respondent had made reasonable adjustments for the Claimant in the past.

 The Respondent had a policy in place which stated that sick leave over a certain threshold may lead to disciplinary action. The Claimant had been consistently over this threshold every year since 2013 and prior to issuing her claim had taken 60 days sick leave in the preceding 12 months. All but one of these absences had related to the Claimant’s disability. The Respondent carried out their disciplinary procedure and issued the Claimant with a written warning. The Employment Appeal Tribunal upheld the Tribunal’s decision and confirmed that the Claimant had been discriminated against on the basis of something arising from her disability.

The Respondent tried to argue that it had a legitimate aim in its actions, namely trying to ensure adequate attendance levels and to improve the Claimant’s attendance. The Employment Appeal Tribunal accepted that this was a legitimate aim. However the Respondent was not able to show that the warning would help to achieve these aims. It was, therefore, found that the warning was being used as a punishment, rather than attempting to achieve legitimate aims and was discriminatory.

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