Employment case law update | Autumn 2021

Technical
Published: 19th October 2021
Area: Corporate & Commercial

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Here we take a quick look at some key employment case law decisions from recent months.

Knowledge of employee’s disability

In Seccombe v Reed in Partnership Ltd, the tribunal found that the claimant was not disabled and that, even if he was, the employer did not know and could not reasonably have been expected to know, that he was disabled.

Mr Seccombe was a supply chain manager for the respondent but was dismissed due to his poor performance after less than two years’ service. Following his dismissal, Mr Seccombe appealed unsuccessfully and then decided to bring a claim in the employment tribunal, claiming his dismissal was an act of disability discrimination and that his employer had failed to make reasonable adjustments for him.  Mr Seccombe claimed to be suffering from severe anxiety and depression and that this condition rendered him disabled for the purposes of the Equality Act 2010.

Having considered the evidence, the tribunal concluded that Mr Seccombe was not disabled, as he was not suffering from a mental impairment that was substantial and long-term.  It went on to find that even if Mr Seccombe was disabled, it was satisfied that the respondent had no knowledge of any such disability.

Mr Seccombe appealed to the Employment Appeal Tribunal, who agreed with the tribunal and upheld their original decision.  The EAT was satisfied that Mr Seccombe had not demonstrated that he suffered from a mental impairment, that was substantial and long term, and agreed that the employer could not have had knowledge of any such underlying condition.  Mr Seccombe had not raised this with the respondent during his employment and had even completed an equal opportunities form which indicated that he did not have any health concerns.

Disability discrimination and absence management

In Martin v City and County of Swansea, the EAT considered whether there can be a substantial disadvantage to a disabled employee where an absence management policy contains a discretion?

Mrs Martin began working for the respondent in 2014 and had a number of stress-related absences. In March 2017, an occupational health report advised that she had a chronic medical condition exacerbated by stress. The respondent had an absence management policy under which an employee might be dismissed if they were incapable of fulfilling their role. The policy gave the respondent a discretion to find an alternative role for such an employee (in lieu of dismissal).

The respondent made significant efforts to accommodate and assist Mrs Martin during her employment, placed her on its redeployment list and gave her a temporary position within its employee services department, where she had access to help in applying for alternative roles.  The respondent even extended the redeployment period from 12 to 29 weeks, but Mrs Martin became disengaged and did not apply for some suitable roles. She told the respondent that she expected to be dismissed at her forthcoming final absence review meeting and did not want her departure to be delayed. She was dismissed in October 2017.

Mrs Martin had argued that the respondent's absence management policy was a provision, criterion or practice (a PCP) that put her at a substantial disadvantage, as her disability made her more likely to suffer absences than a non-disabled person and she was at an increased risk of dismissal. The tribunal found that the policy did not put her at a substantial disadvantage, because such disadvantage was removed by the respondent’s discretion to find her an alternative role rather than dismissing her. It further concluded that, in any event, the respondent had taken all reasonable steps to avoid any disadvantage to Mrs Martin.

On appeal, the EAT determined that the tribunal had erred in finding that an employer's absence management policy was not a PCP that put a disabled employee at a substantial disadvantage merely because the policy gave the employer a discretion to redeploy the employee rather than dismissing her for insufficient levels of attendance. The EAT concluded that the application of the absence management policy – even with the employer’s discretion to redeploy Mrs Martin instead of dismissing her – still put her at a disadvantage because she was at a greater risk of absence than people who are not disabled and so, because the discretion to find an alternative role might not be exercised in her favour, she remained at greater risk of dismissal.

However, the real question in this case, was whether the respondent had taken such steps as were reasonable to avoid the disadvantage. Both the employment tribunal and the EAT found that the employer had made all reasonable adjustments to avoid the disadvantage to Mrs Martin, meaning that the EAT’s findings regarding the PCP that the respondent had applied ultimately had no bearing on the outcome of this case.

Whistleblowing and unfair dismissal

In Kong v Gulf International Bank (UK) Ltd, the EAT has clarified that, when determining the reason for dismissal in an unfair dismissal claim, it will rarely be possible to attribute to the employer the motivation of any person other than the one who decided to dismiss.

Ms Kong was the Head of Financial Audit for the respondent, Gulf International Bank (UK) Limited. Her role involved carrying out risk-based audits for all of the company’s business activities in ensuring they complied with regulatory requirements.  In the performance of her role, Ms Kong raised a variety of concerns to the company’s Head of Legal, stating that legal documents in use were not fit for purpose.

Subsequently, Ms Kong was dismissed by the respondent after the Head of Legal suggested that Ms Kong had inappropriately questioned her professional integrity and legal knowledge such that she could not see how she could continue to work with Ms Kong.  The Head of Legal made these thoughts known to the Head of HR and CEO, who agreed that Ms Kong’s employment should be terminated.

Following an unsuccessful appeal, Ms Kong brought claims of ordinary unfair dismissal, unlawful detriment and automatic unfair dismissal for having made protected disclosures.  At her first attempt, the tribunal decided that the conduct of the Head of Legal was detrimental treatment because of Ms Kong’s protected disclosures. However, unfortunately for Ms Kong, that claim was brought out of time and so it could not succeed.

The tribunal did find in Ms Kong’s favour in her unfair dismissal claim, in finding that the dismissal was not fair and was not in the band of reasonable responses for an employer acting reasonably in these circumstances.  The tribunal dismissed the claim for automatic unfair dismissal, as it was satisfied that those making the decision to dismiss were not motivated by the protected disclosures raised by Ms Kong and that their decision was down to how Ms Kong had raised her concerns and her misconduct.

Ms Kong took her case to the EAT in challenging the tribunal’s rejection of her automatic unfair dismissal claim.  The EAT rejected her appeal and was satisfied that the tribunal had correctly concluded that Ms Kong had not been dismissed because of her protected disclosures and that the automatic unfair dismissal claim should not succeed.  The EAT was satisfied that the decision makers had reached their decision based on how they believed Ms Kong had behaved and that this was separate to the contents of the protected disclosures that she raised.

Application for anonymity order for non-party to tribunal proceedings

Since 2017 all tribunal judgments and written reasons entered on the public register have been published online and are readily available to the general public.   However, Rule 50 of the Employment Tribunal Rules of Procedure (the ET Rules) gives the tribunal the power, either on its own initiative or following an application, to make an order preventing or restricting the public disclosure of any aspect of the proceedings.

In October 2016, the appellant in TYU v ILA Spa Ltd (referred to in the EAT's judgment as “TYU”) resigned from her employment with ILA Spa Ltd.  In March 2018, the tribunal heard separate claims for unfair and wrongful dismissal brought against ILA by two former colleagues of TYU, however, TYU was neither a party nor a witness in the claims brought by her former colleagues.

Neither claim by TYU’s former colleagues was successful, however, the judgment in the dismissal claims stated TYU's name and position while working for ILA. In addition, TYU was named in connection with allegations of serious and criminal misconduct during her employment with ILA. This included having signed off the payment of false invoices, theft resulting in a police investigation and threatening behaviour.

Subsequently, TYU contacted the tribunal, requesting that her name be anonymised or certain parts of the judgment redacted. She said that a Google search of her name brought up the judgment, which was damaging to her reputation and employment prospects and caused her significant distress.  This eventually resulted in an application for an order under Rule 50 of the ET Rules again asking for her name to be anonymised in the judgment and for other personal information to be redacted.

The tribunal rejected TYU’s application, determining that TYU's rights under Article 8 of the European Convention on Human Rights (right to respect for private life) were not engaged. The employment judge stated that TYU could not have any reasonable expectation of privacy because information revealing her identity had been discussed in a public trial. The fact that TYU was not a party to proceedings gave her no greater or lesser rights under Article 8 than a party to proceedings. Alternatively, the employment judge found that, even if TYU's rights under Article 8 were engaged, they did not outweigh rights protected by Articles 6 (right to a fair trial) and 10 (freedom of expression) of the ECHR and the principle of open justice.

The EAT disagreed, holding that the tribunal had erred in assuming that  TYU’s Article 8 right to private life was not engaged. It also failed to adequately carry out the balancing exercise of TYU’s Article 8 right against Articles 6 and 10 or to make an assessment of the impact on TYU.  It subsequently ordered the anonymisation of the EAT and tribunal judgment as an interim measure.

It is clear from the fact-specific nature of the EAT's judgment that, whether or not an order is justified will depend upon the particular position of the applicant, including but not limited to any prior publicity.  This judgment provides helpful confirmation that there is no general rule that, having been named in a public tribunal hearing or judgment will defeat an application for an order under Rule 50 of the ET Rules but such applications can be successful, depending on the facts and circumstances of each case.

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