Guides & Advice

Employment - Quick fire case law

Published: 20th October 2020
Area: Corporate & Commercial
We take a quick look at some significant employment decisions from the last couple of months.
Did an employee suffering from paranoid delusions have a disability under the Equality Act 2010?

The claimant, Mr Sullivan, had worked for a finance company since 2008.  From the outset, there were concerns about his timekeeping and record-keeping. Following the end of a relationship with a Ukrainian woman, Mr Sullivan suffered paranoid delusions that he was being followed and stalked by a Russian gang. The employer became aware of the claimant's delusional beliefs, which affected his timekeeping, attendance and record-keeping.  His condition fluctuated and he was eventually signed off sick, and then dismissed.  Mr Sullivan made a claim for unfair dismissal and disability discrimination.

It was held (and upheld on appeal) that Mr Sullivan’s condition did not have a substantial adverse effect on his ability to carry out day-to-day activities, a key factor in determining whether an employee is disabled under the Equality Act 2020, and he was therefore not suffering from a disability.  On appeal, it was found that, whilst there was no dispute that the delusional beliefs had persisted throughout, the tribunal had correctly drawn a distinction between those beliefs and the effect that such beliefs had on Mr Sullivan’s ability to carry out normal day-to-day activities. The existence and continuation of the beliefs was not synonymous with his ability to carry out day-to-day activities.

(Sullivan v Bury Street Capital)

Was a lack of confidence in an employee’s capability relevant to re-engagement?

Mr Kelly had been dismissed from his post and his employer had conceded that the dismissal was unfair. Mr Kelly sought re-engagement. The tribunal ordered that he be re-engaged by the employer in a different role in China, even though he could not speak Mandarin, which the employer considered an essential requirement for the role.  On the issue of whether re-engagement was practicable, which the tribunal is required to consider, the majority rejected the employer’s argument that re-engagement was not practicable because it lacked trust and confidence in Mr Kelly (he had covertly recorded several meetings). When an employer argues that a breakdown in trust and confidence means that it is impracticable for an order for re-engagement to be made, a tribunal needs to be satisfied not only that an employer genuinely believed that trust and confidence had broken down, but also that its belief in that respect was not irrational.

The employer appealed and was successful. The Employment Appeal Tribunal (EAT) rejected the argument that trust and confidence is only relevant to the practicability of re-engagement where dismissal is based on an employee's conduct, not capability as was the case here. The EAT also held that the tribunal had erred in substituting its own view on whether the ability to speak Mandarin was an essential requirement of the role. Requiring the employer to engage someone in a role for which they did not meet one of the essential requirements went too far, and did not give weight to the employer's commercial judgment.

(Kelly v PGA European Tour)

Would an undertaking regarding severance pay have been a reasonable adjustment?

The claimant, Mrs Hill, has been employed by Lloyds Bank for over 30 years. She was on sick leave for stress, which she asserted was caused by bullying and harassment at the hands of two colleagues.  Her grievance and appeal were not upheld and upon her return, she asserted that she did not want to work with the two individuals.  The thought of potentially working with them in the future made her very anxious, to the point of sickness and exhaustion. She has not had to work with them again but sought an undertaking from the bank that this would remain the case, or that the bank would offer a redundancy severance package.  The bank informed her that it could neither give the undertaking, nor make a payment to her, as it would not be a genuine redundancy situation.  Mrs Hill brought a claim of failure to make reasonable adjustments. It was accepted that she was a disabled person and that the bank had knowledge of her disability.

The Equality Act 2010 imposes a duty on employers to make reasonable adjustments where a disabled employee is placed at a substantial disadvantage by an employer's provision, criterion or practice. The employment tribunal upheld Mrs Hill’s claim, finding that the bank had a practice of not giving the undertaking sought, only words of comfort. The tribunal decided that this practice placed her at a substantial disadvantage because it meant her suffering a level of anxiety and fear which a non-disabled person who had been bullied and harassed would not.  This was upheld on appeal, although a recommendation made by the tribunal regarding the undertaking was not.

(Hill v Lloyds Bank)

Gender fluid employee awarded £180,000 for gender discrimination

Ms Taylor identified as gender fluid/non-binary and was employed by Jaguar Land Rover as an engineer.  Ms Taylor claimed that because of her gender fluid/non binary identification, she was subjected to insults and abusive jokes at work, suffered difficulties with the use of toilet facilities and managerial support. After resigning in 2018, Ms Taylor brought claims against Jaguar Land Rover, on the basis that she had suffered harassment and direct discrimination because of gender reassignment and sexual orientation.  She also claimed victimisation after Jaguar Land Rover later failed to permit her to retract her resignation.

In September 2020, an employment tribunal upheld claims for harassment, direct discrimination and victimisation, and subsequently awarded Ms Taylor £180,000.  It held that a gender fluid/non-binary employee was covered by the definition of gender reassignment in the Equality Act 2010.  A person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex. Subsequently, Jaguar Land Rover has apologised to Ms Taylor and stated that it will use the outcome to inform its diversity and inclusion strategy.

(Taylor v Jaguar Land Rover Ltd)

What’s in the pipeline?

Here are some of the key cases and legislation to keep an eye out for this year:

Harpur Trust v Brazel (UNISON intervening)

The Supreme Court has given permission to appeal in this important holiday pay case, in which the Court of Appeal held that a teacher on a zero hours contract was entitled to 5.6 weeks’ holiday pay, even though she was a part year worker. This decision was controversial as many employers who engage individuals on a part year basis (the classic example being schools), had approached this issue by paying 12.07% of earnings, rather than identifying a week’s wage and multiplying the figure by 5.6. The hearing date is yet to be confirmed by the Supreme Court.

Flowers and others v East of England Ambulance Trust

Permission to appeal has been granted by the Supreme Court, with the matter to be heard on 22 June 2021. In the Court of Appeal, it was held that if voluntary overtime is in practice sufficiently regular and/or made on a recurring basis (however it was classed in the contract), it could amount to ‘normal remuneration’ and therefore would need to be included in the calculation for holiday pay.

Page v Lord Chancellor/Secretary of State for Justice and another

This will be heard on 3 or 4 November 2020 in the Supreme Court. The Employment Appeal Tribunal held in 2019 that a Christian magistrate who had been removed from his post after talking to the media about his views on same sex marriage was not victimised for religious discrimination, but rather was dismissed for speaking to the press. In talking to the press, against judicial guidance, he was acting contrary to the judicial oath of impartiality and risked bringing the judiciary into disrepute.

Cap on public sector exit payments of £95,000

A cap on public sector exit payments has been talked about by the Government since 2015, largely in response to press coverage of a number of large exit payments in recent years. The Restriction of Public Sector Exit Payments Regulations 2020 was made on 14 October and will come into force on 4 November 2020.  It is worth noting however that the British Medical Association in particular has been concerned by the proposals, seeking a judicial review, and the Government has been recently challenged on the plans in the House of Lords.

Contact us

We will continue to update this guide as and when new information becomes available. If you have any queries on the Job Support Scheme, or need any guidance or support, please speak to a member of your local employment team.

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