An internal reorganisation which led to an employee’s part-time role being subsumed within a broader full-time role did not necessarily mean the role was redundant.  Given that the employee was on maternity leave, if the role was not redundant, it raised the prospect that the process was a sham motivated by the maternity leave.   

What happened in this case?

Ms Ballerino began working for The Racecourse Association as a part-time Financial Accountant in August 2018.  She was engaged to work from home for 40 days per year, although she felt that the role really needed her to work more than double that amount.  The employer agreed to review the role when a new Chief Executive was in post the following year.  As Ms Ballerino was pregnant when she started employment, she began a period of maternity leave in December 2018.  

In February 2019, the new Chief Executive, Mr Armstrong, came on board.  He undertook a review of the business and decided that a new full-time, office-based role of “Finance Manager and Business Analyst” should be created.  The new role would subsume Ms Ballerino’s duties.  In late June 2019, two candidates attended second-round interviews for the new role.

Around the same time, the employer contacted Ms Ballerino (who was on maternity leave) to inform her that she was at risk of redundancy because of the decision to amalgamate her duties within the Finance Manager and Business Analyst role.  She was provided with a job description for the new role and invited to apply for it, but, at the same time, was given a draft settlement agreement governing the terms of her exit from the business.  Ms Ballerino did not apply for the new role and, after settlement negotiations had broken down, she was dismissed. 

Ms Ballerino claimed that the redundancy process was a sham designed to exit her from the business because of her maternity leave or sex.  In the alternative, she argued that if there had been a genuine redundancy situation, the dismissal was automatically unfair because the employer had failed to allocate the new role to her, which it should have done given that it was (she said) a suitable alternative vacancy and she had been on maternity leave at the time.

The Employment Tribunal rejected the discrimination claims, finding that there was an acceptable business reason for the reorganisation and the redundancy was not a sham.  It also rejected the automatic unfair dismissal claim, finding that the new role was not a suitable alternative vacancy because its main focus was on business analysis rather than financial accounting.  Further, it was a full-time, office-based role rather than a part-time, home-based role.  As such, the employer had not been obliged to offer it to her ahead of other potential candidates. 

Ms Ballerino appealed to the Employment Appeal Tribunal.

What was decided?

The EAT upheld the appeal.

On the automatic unfair dismissal claim, the Employment Tribunal had formed the impression that there was a genuine redundancy situation and had then jumped straight to the question of whether the new role was a suitable alternative vacancy.  Yet, the Tribunal had failed to interrogate the legal question of whether the employer’s need for employees to carry out financial accounting work had, in fact, ceased or diminished or was expected to do so.  Although that short-cut may be permissible in some situations, that was not the case here.  Ms Ballerino’s role was still relatively new and there had been a debate about how many working hours the role really required.  In these circumstances, the fact there was some internal reorganisation and a need for additional tasks to be performed, did not necessarily mean that her role was no longer required.  

On the discrimination claims, the Employment Tribunal had accepted the employer’s explanation for the dismissal at face value i.e. that she was redundant.  However, this decision was problematic because the Tribunal had not properly scrutinised the question of whether her role was, in fact, redundant.  That question needed to be answered – because if her role was not redundant then this would bolster her argument that the dismissal was a sham.

The case has been remitted to the Employment Tribunal to examine the question of whether the role was genuinely redundant.

What are the learning points for employers?

This decision reminds employers (and Employment Tribunals) of the need not to make assumptions in business reorganisations.  Expanding a role in terms of hours and/or duties does not necessarily mean that the requirement for the original duties has ceased or diminished.  This is particularly so where the original role is relatively new, fluid and subject to review, as was the case here.   

In internal reorganisation situations, the best advice for employers is to take care to undertake the necessary groundwork.  Create a job specification for the new role setting out its scope and duties in full.  This is especially important where duties are to be reallocated from existing roles to a new role.  Having proper documentation in place helps to overcome suggestions that the whole exercise is a sham designed to exit specific employees.   Ensure that appropriate redundancy consultation is undertaken, and that careful consideration is given to whether any new role amounts to a suitable alternative vacancy for a woman on maternity leave, who will have priority for such vacancies (as do certain other employees).  If an employee who has priority is denied such a role, they may be able to claim that they have been automatically unfairly dismissed and/or they have suffered pregnancy and maternity or sex discrimination.

Ballerino v The Racecourse Association Ltd

BDBF is a law firm based at Bank in the City of London specialising in employment law.  If you would like to discuss any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

In the recent case of Valimulla v Al-Khair Foundation, the EAT held that an employer’s failure to consult with an employee about a proposed redundancy pool meant the dismissal was procedurally unfair.  Further, the decision not to pool the employee with four other employees who performed the same role as the employee had to be looked at again by a new Employment Tribunal.

What happened in this case?

The employer is a faith-based charity, with a head office and six branch offices.  Team members moved between offices frequently.  Mr Valimulla started working for the employer in February 2018 as a Liaison Officer and his role involved fundraising in the community, for example, through schools and mosques.  Four other Liaison Officers were employed nationally.  Mr Valimulla was the only Liaison Officer who was not branch-based and worked from home.  

During the coronavirus pandemic, charitable contributions decreased due to the fact that places of worship were closed.  As a result, all Liaison Officers assigned to collect revenue from places of worship were placed on furlough, including Mr Valimulla.  Eventually, the charity decided to make redundancies.  Mr Valimulla was the only Liaison Officer who was identified as being at risk of redundancy.

Three redundancy consultation meetings took place.  At the first meeting, Mr Valimulla was told that it had been decided that his role would “disappear” with the closure of branches and the retention of just two regional hubs.  At the second meeting, Mr Valimulla put forward a business case as to how his role could continue, which was considered but rejected.  After the final meeting, Mr Valimulla was dismissed by reason of redundancy.  

Mr Valimulla claimed that he had been unfairly dismissed.  Amongst several criticisms of the process, he argued that the employer had not identified a redundancy pool nor applied selection criteria before selecting him for redundancy.  However, the Employment Tribunal accepted the employer’s argument that his role was unique, and he was in a self-selecting pool of one.

Mr Valimulla appealed.

What was decided?

Mr Valimulla argued that the Employment Tribunal had failed to deal adequately with two questions.  First, the employer’s decision not to pool him with the other four Liaison Officers and, second, the failure to consult with him about the proposed pool of one.

On the decision not to pool him with the other Liaison Officers, the EAT noted that the Tribunal had found a redundancy situation had arisen because the employer had a reduced requirement for employees to carry out Liaison Officer work, but this was not tied to work being performed in a specific location.  Yet the Tribunal gave no reasons why it had accepted the employer’s assertion that Mr Valimulla’s role was unique, meaning he should be in a pool of one, rather than a pool of with all of the other Liaison Officers employed nationally.  

Although the EAT accepted that there is no one prescribed process for selecting employees for redundancy, Tribunals must scrutinise an employer’s approach when considering the fairness of a dismissal.  This requires an assessment of whether the employer had genuinely applied its mind to the question of pooling and to determine whether the chosen pool was reasonable.  Here, the Tribunal needed to consider whether the employer’s response came within the band of reasonable responses, which required consideration of Mr Valimulla’s role, the similarities and differences between the roles of all five Liaison Officers, how the employer had approached pooling and the rationale for its ultimate decision.

On the question of consultation, the EAT held that redundancy consultation needs to be “meaningful”.  It was unclear how this could be the case here, when consultation had only started after Mr Valimulla had been placed in a pool of one.   Meaningful consultation does not simply mean informing staff about a decision or proposal, giving them an opportunity to make representations and then putting the original decision or proposal into effect.  Instead, it means setting out a provisional proposal, along with its rationale, and providing an opportunity for feedback.  The decision-maker should consider such feedback and decide whether to alter the original proposal (and if not, why not) before making a decision.

The EAT upheld the appeal.  The question of the failure to pool with the other Liaison Officers was remitted to a new Employment Tribunal to consider.  However, the failure to consult about the pool  meant that the dismissal was procedurally unfair, although the question of what the outcome would have been had consultation taken place (i.e. would the pool have changed and, if so, what are the chances Mr Valimulla would have still been made redundant?) was remitted to the new Tribunal.

What does this mean for employers?

This decision serves as useful reminder for employers of two essential ingredients of a fair redundancy dismissal.  

First, employers must identify the appropriate pool of employees from which to select potentially redundant employees.  This involves interrogating which roles are the same or sufficiently similar to justify being pooled together.  The fact that roles are different in some ways may or may not be enough to justify different treatment.   Importantly, employers must be able to show they applied their mind to the question and reached a reasonable conclusion.  Getting the pool wrong may mean any subsequent redundancies are procedurally unfair and it could also lead to claims of discrimination in certain circumstances. 

Second, employers must consult with employees on the provisional pool for selection (and any selection criteria to be used) before making the final decision. This consultation should take place when the proposals are still at a formative stage, so that employees have the opportunity to influence outcomes.  The need to consult about the proposed pool was critical in this case, given that the employee was to be placed in a pool of one, meaning his dismissal was almost inevitable.  However, consultation on the proposed pool should take place in all cases where pooling is being used.

Valimulla v Al -Khair Foundation

BDBF is a law firm based at Bank in the City of London specialising in employment law.  If you would like to discuss any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

In Garcha-Singh v British Airways plc, the EAT has ruled that an Employment Tribunal was entitled to find that the dismissal of a long-term sick employee was fair.  The fact that the dismissal was postponed seven times over the course of a year was to the employee’s advantage and the employer had not acted unreasonably. 

What happened in this case?

The Claimant worked for British Airways as a member of cabin crew.  He went on long-term sick leave in August 2016.  In August 2017, he was given notice that his employment would terminate on 5 January 2018.  However, the termination date was extended six times to allow him further time to recover and return to work.  It was extended for a seventh time to allow settlement discussions to take place.  His employment was eventually terminated on 21 December 2018, well over two years after he first went off sick.

The Claimant brought claims for wrongful and unfair dismissal and race and disability discrimination.  The Employment Tribunal dismissed all of his claims.   He appealed to the EAT.  He argued that the repeated extensions to the termination date amounted to a breach of BA’s contractual absence management policy and were also unreasonable, meaning his dismissal was unfair.  He also argued that failure to allow him to appeal the decision to terminate on 21 December 2018 was a further breach of BA’s contractual absence management policy.

What was decided?

The EAT dismissed the appeal.

First, the EAT said the repeated extensions to the termination date did not breach the absence management policy.  The policy set out the minimum standards required from BA in absence management cases.  Provided BA did not act contrary to those standards, it had leeway to adapt its approach to a particular case, including postponing the termination date where appropriate.  In any event, the Claimant had agreed to each extension of the termination date.

Second, it was clear that the extensions advantaged the Claimant as they afforded him more time to recover and return to work and avoid termination of his employment.  BA’s actions in this respect were reasonable.  It was not unreasonable to not extend the termination date again.  By that point, it had already been extended seven times over the course of a year.  Further, BA had made reasonable efforts to understand the Claimant’s condition and prognosis.  The Claimant failed to provide any new information which would have suggested a further extension might be appropriate.  In the circumstances, BA had reasonable grounds for believing that the Claimant would continue to remain off sick.

Finally, the EAT said that BA had not breached its absence management policy by not permitting an appeal of the final decision to terminate.  It was true that the policy did provide for an appeal, and an appeal was heard in relation to the original decision to terminate taken in 2017.  The decision to proceed with termination on 21 December 2018 was not the termination decision – rather it was a decision to go ahead and not postpone for an eighth time.  

Overall, the Tribunal was entitled to decide that BA had acted within the range of reasonable responses and the dismissal was fair.

What does this mean for employers?

Had the employee been dismissed in January 2018 as originally planned, it seems likely that BA would have faced criticism from him for dismissing too swiftly and not allowing a further opportunity to recover and return to work.  

Here, the employee was given more time, but complained that the postponements were unreasonable and left him living under the shadow of dismissal.  It is true that employers seeking to dismiss on capability grounds typically allow time for recovery before serving notice of dismissal.  However, as the EAT recognised, the extensions were to the advantage of the employee and he was essentially in the same position as any employee being managed under a capability procedure who knew that termination was the ultimate outcome.  

Employers considering dismissal of a long-term sick employee should ensure that they complete the following steps to limit the risk of unfair dismissal and disability discrimination claims:

• Ascertain the up-to-date medical position.
• Consult with the employee.
• Consider making reasonable adjustments to the employee’s role.
• Consider the availability of alternative roles.
• Consider how long you can keep their role open – this may involve consideration of the availability and cost of temporary cover, the administrative costs involved in keeping the employee on the books and the size of the organisation.  
• Consider whether the ill-health was caused at work.  If it was, then the general rule is that the employer should go further and keep the job open for longer than would usually be the case.
• Consider alternatives to dismissal, for example, applying for permanent health insurance cover or ill-health retirement where these options are available.

Employers should also ensure they abide by their own absence management policies, but as the EAT noted here, these do not constrain you from taking additional reasonable steps in any particular case.

Garcha-Singh v British Airways plc

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

An Employment Tribunal has ruled that a journalist was unfairly dismissed for refusing to install an “intrusive” work-related app on her personal phone, which would have left her unable to separate her work and home life.  The employer should have considered alternatives such as providing her with a work phone or installing the app on her laptop.

What happened in this case?

The Claimant worked as an Online News Editor for the Respondent newspaper.  The Respondent had regarded her as a self-employed freelancer, but it was later determined that she was actually an employee.

By 2017, the Online News team was publishing at least one hundred news stories per day, and it had become impossible for the team’s supervisors and editor to review every article before publication.  To help with this, the Respondent introduced a new online platform called Viber to track what stories were being submitted and avoid duplication of content.  Viber would also alert supervisors more efficiently to when sensitive articles needed to be checked.  Initially, the use of Viber was not compulsory.  

The Respondent developed concerns that the Claimant had duplicated articles that had already been published by them.  On 1 November 2019, Ms Aloul, the Editor in Chief, sent the Claimant a message asking her to start using Viber “now” to avoid mistakes in the publication of articles.  Yet on 4 and 26 November 2019, the Claimant published articles on topics that had already been covered.  Again, the Claimant was asked to use Viber.  

However, the Claimant objected to having the Viber app on her personal mobile phone.  She said she was getting disturbed by the volume of messages that came through the app, day and night.  She asked to be provided with a separate work phone for this purpose.  The Claimant was told that she could mute the Viber notifications, but she did not feel that was an acceptable solution since she would still be able to see the visual notifications on her phone screen.  Alternatively, she was told to buy a separate phone herself, but that the Respondent would not pay for it as she was a freelancer.

The Claimant continued to refuse to put the Viber app on her phone.  As a result, on 8 January 2020, Ms Aloul gave the instruction to block the Claimant’s access to the Respondent’s systems.  On 13 January 2020, the Claimant raised a grievance alleging bullying, harassment and race discrimination by Ms Aloul.  The relationship was eventually terminated on 6 February 2020.  

The Claimant brought claims alleging that she had been unfairly dismissed.  She also brought claims of breach of contract, unlawful deductions from wages and unpaid holiday pay.  This briefing considers the unfair dismissal claim only.

What was decided?

The Employment Tribunal decided that the principal reason for the Claimant’s dismissal was that she had refused to put the Viber app on her personal phone.  The refusal to use the app fell within the category of “conduct” and was, therefore, a potentially fair reason for dismissal.  

Whether or not the dismissal was, in fact, fair turned on whether the decision to dismiss fell within the “band of reasonable responses”.  The Tribunal found that it did not.  It held that no reasonable employer would have dismissed an employee for refusing to put an intrusive work-related app on their personal phone.  The Respondent’s approach meant that the Claimant would not be able to separate her home and work life.  This was unreasonable given that there were alternative solutions available, such as providing her with a separate work phone or phone number or downloading the app onto her laptop.

In any event, the dismissal was procedurally unfair, given that no investigation or disciplinary hearing took place before a final decision to terminate was taken.  Nor had the Claimant received any prior disciplinary warnings about the matter.  It was clear that the Respondent did not feel it had to follow proper procedures because it (erroneously) believed that the Claimant was self-employed.   

The Tribunal also dismissed the argument that this was a case in which it was fair to dismiss without following any procedure on the basis that there had been a complete breakdown in working relations, meaning that a procedure would serve no useful purpose.  While there had been some arguments in the past, there had not been a major breakdown in working relations.  There was no reason a disciplinary hearing could not have been held.

The Tribunal declined to order reinstatement on the basis that trust and confidence between the Claimant and Ms Aloul had now broken down.  Instead, it awarded compensation of almost £20,000 for the unfair dismissal, including an uplift of 25% for failure to comply with the statutory Acas Code of Practice on Discipline and Grievance.  The Tribunal also awarded a further £12,000 in respect of the claims for breach of contract, unpaid holiday pay and unlawful deductions from wages.

What are the learning points for employers?

Firstly, this decision highlights the need for employers to be clear about the employment status of those working for them.  Had the employer understood that the Claimant was an employee, they could have made sure that they followed a proper process prior to any dismissal.  The failure in this respect meant that the dismissal was unfair and also landed them with an uplift to compensation of 25%.

Secondly, employers facing resistance from employees about the use of technology should explore whether any other solutions are available.  In this case, the issue may have been swiftly resolved by providing a work phone or installing the app on a laptop.  Had the Claimant continued to refuse to use the app in those circumstances, it is likely that the employer could have fairly dismissed for misconduct, subject to following a fair procedure.

Thirdly, the decision reminds employers to be wary of the degree to which work-related technology intrudes into the personal lives of employees.  Although many employers in this situation would  have provided a work phone, it may well have come with an expectation that the employee would monitor notifications outside normal working hours.  This still presents the problem of leaving employees unable to separate their work and home lives and blurring the line between working time and non-working time.  Depending on the circumstances, it may not be unreasonable for an employee to refuse to do so.

And it may not be long before workers are given a specific legal right to disconnect.  The Labour Party has indicated that it would legislate to introduce a right for workers not to be contacted about work outside of normal working hours.  Indeed, several EU member states have already successfully introduced legislation or guidance in this area, including France, Italy, Spain, Ireland, Portugal and Belgium.  Further, in January 2021, the European Parliament passed a resolution calling for a new EU Directive to introduce a right to disconnect.  

Alsnih v Al Quds Al-Arabi Publishing & Advertising

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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The EAT has held that the dismissal of an employee “vanished” as a consequence of her successful internal appeal of a dismissal decision.  To avoid this outcome, the employee should have withdrawn her appeal in no uncertain terms.  Merely stating that she did not wish to return to work was not enough to constitute the retraction of an appeal. 

What happened in this case?

The Claimant was a Sales Assistant who worked in an Iceland store.  She was dismissed in January 2019 for alleged gross misconduct.  She appealed the decision and asked to be reinstated.  An appeal hearing took place but was adjourned so that further investigations could take place.  In the meantime, the Claimant emailed Iceland to say she had lost trust and confidence in them and no longer wished to return to work.  During the reconvened appeal hearing, the Claimant said that she did not wish to be reinstated but wanted an apology and compensation.

Iceland upheld the appeal against the dismissal.  The Claimant was told that she would be reinstated with continuity of service restored, backpay and a final written warning.  However, she refused to return to work.  Three months later, in July 2019, Iceland dismissed the Claimant for her failure to attend work.  The Claimant brought a claim of unfair dismissal in respect of the January dismissal.  She did not bring a claim about the July dismissal.

Iceland said that the claim was not well-founded because the January dismissal had “vanished” when the appeal was upheld and the Claimant had been reinstated.  The Employment Tribunal agreed, holding that the fact that the Claimant had said she did not want to be reinstated was not enough.  She should have gone further and withdrawn her appeal altogether.  She did not, which meant that she could not escape the consequences of a successful appeal.  The underlying motives, intentions or desires of the Claimant were not relevant.  The Claimant appealed to the EAT.

What was decided?

The Claimant argued that her statements that she did not wish to work for Iceland, and that she only wanted an apology and compensation, were tantamount to a withdrawal of her appeal.

The EAT held that it was well-established that when a contractual right of appeal is exercised, the agreement between the parties is that should the appeal succeed, the employee will be treated as never having been dismissed and will be reinstated with backpay.  This is the objective position, and it does not turn on the employee’s personal motives for appealing, however legitimate (e.g. a desire to “clear their name” or a concern not to risk a deduction to a compensation award for failing to comply with the provisions of the Acas Code of Practice on Disciplinary and Grievance Procedures).

Turning to the question of whether the Claimant’s words were clear enough to amount to a withdrawal, the EAT said they were not.  Although excessive formality was not required, at the very least she could have said “I wish to withdraw my appeal”.  Moreover, the Claimant had accepted before the Tribunal that she had not withdrawn her appeal.

The EAT also noted that the Claimant’s wish not to return to work for Iceland and the pursuit of the appeal were not mutually exclusive.  An employee may pursue an appeal in order to clear their name and/or receive back pay and then resign once they have been reinstated (and potentially claim constructive dismissal).

The outcome was that the Claimant was not dismissed in January 2019 and her claim of unfair dismissal could not proceed.

What are the learning points for employers?

This decision is a useful reminder to employers that if an appeal against a dismissal decision is upheld, the original dismissal will be erased, and the employee will not be able to pursue a claim for unfair dismissal in relation to it.  It would remain open to the employee to resign and claim that they have been constructively dismissed, but this is a riskier claim for the employee as they will first need to show that there had been a fundamental breach of contract by the employer.

Importantly, the decision also tells us that appeal processes should be continued even where an employee says that they have lost trust and confidence and/or that the only remedy they want is compensation and an apology.  Clear words are needed for an appeal to be deemed to have been withdrawn.  Stopping an appeal process withouta clear withdrawal has two negative consequences for employers.  First, it would remove the opportunity to erase a flawed dismissal decision, leaving the door open for an unfair dismissal claim.  Second, it could potentially mean the employer has breached the Acas Code of Practice, which could lead to compensation being increased.

Marangakis v Iceland Food Ltd

Brahams Dutt Badrick French LLP are a leading specialist employment law firm based at Bank in the City. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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Did you know that approximately 6.3 million people in the UK suffer from dyslexia? With around 10% of the population affected, it is important for employers to understand what obligations they have, if any, towards dyslexic workers.  Earlier this month, “World Dyslexia Awareness Week” aimed to raise awareness and help dyslexic people feel seen, heard and accepted for the individuals they are.  In this briefing, we explain what dyslexia is, when it constitutes a disability under the Equality Act 2010 (the Act) and the potential obligations on employers to make reasonable adjustments.

Is dyslexia always a disability?

Under the Act, a disability is defined as a physical or mental impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities.  Dyslexia is classified as a neurodiverse condition because it adversely affects the way a person learns and processes information. Consequently, dyslexia would be regarded as a mental impairment under the Act.  As a lifelong condition, it would also be regarded as having a long-term impact.

However, this does not mean that dyslexia will always qualify as a disability.  Although it has the potential to have a substantial adverse effect on a person’s daily activities, this is not always the case.  For an individual’s dyslexia to have a substantial adverse effect, it must have more than a trivial or minor impact on their ability to carry out normal day-to-day activities.

Protection for dyslexic workers who are disabled

The Act seeks to protect disabled people from discrimination in the workplace and in wider society.  Importantly, employers have a duty to make “reasonable adjustments” for disabled job applicants and workers.  This means that where a person’s dyslexia as amounts to a disability under the Act, a duty to make reasonable adjustments may be imposed on an employer.

This duty will be triggered for disabled dyslexic workers where the employer knows (or ought to have known given the facts available to them), that the worker has dyslexia and that the worker was likely to be placed at a substantial disadvantage compared to non-disabled people, because of:

• a provision, criterion or practice of the employer;
• a physical feature of the employer’s premises; or
• the non-provision of auxiliary aid.

Where the duty applies, the employer must take reasonable steps to reduce the disadvantage.  If an employer fails to comply with their duty to make reasonable adjustments this will amount to discrimination under the Act.  Importantly, employers need to remember that if the duty applies, they are required to take a proactive approach rather than wait for the worker to ask for a change.

When will an adjustment be reasonable?

The duty to make adjustments only requires an employer to take such steps as it is reasonable to take in order to avoid the disadvantage experienced by a disabled person. Measures which would impose a disproportionate burden on the employer do not have to be taken. A holistic approach should be taken in which the effect of all steps is considered, not in isolation, but as a whole.

Further, an employer should consider the extent to which a step will be effective in preventing substantial disadvantages to a disabled person. To improve the chances that that steps will be effective, an employer should seek to consult the disabled person about their proposed step.  When considering whether an adjustment is “reasonable”, the following factors are relevant:

• the practicability of the step;
• the size, nature and resources available to the organisation;
• the financial and other costs of the adjustment;
• the extent to which the adjustment would disrupt the business;
• the impact on other employees;
• the timing of the adjustment; and
• health and safety or other obligations on the organisation.

What sort of adjustments might need to be made for a dyslexic job applicant or worker?

As a starting point, it is good practice for employers to ensure that they proactively review all workplace policies from time to time to ensure that they do not risk causing substantial disadvantages to disabled workers.

Specific adjustments that may be considered reasonable for dyslexic job applicants and workers include:

• affording dyslexic applicants and workers more time to carry out certain tasks;
• giving verbal as well as written instructions;
• providing assistive technology such as a screen reader, scanning pen or text-to-speech software;
• highlighting the key points in documents;
• using different formats to convey information e.g. audio, video, diagrams and flowcharts; and
• permitting the use of digital recording devices in meetings and training sessions so that the worker doesn’t have to take written notes.

The British Dyslexia Association offers further examples of adjustments that may be helpful.

In addition, it can be helpful to keep a record of reasonable adjustments made for disabled workers.  An up-to-date reasonable adjustment record can help an employer ensure that all reasonable adjustments are appropriate and that the information is passed seamlessly between managers.  This saves the worker from having to explain their condition and what they support they need each time there is a change in line management.

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss how you can support members of your workforce who have dyslexia, please contact Anthony Nzegwu (AnthonyNzegwu@bdbf.co.uk), Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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The EAT has upheld a Tribunal’s decision that it was fair to dismiss an employee for being persistently late to work, even though sometimes this was by just two or three minutes.  Employees must be ready to start work from the time that they are paid, and employers are not required to show they have suffered any problems as a result of an employee’s lateness.

What happened in this case?

The Claimant began working as a cleaner in the House of Commons in June 2015.  Cleaning staff started work at 6am in order to have finished cleaning before MPs arrived for the day.  Throughout her employment, the Claimant was regularly late for work. 

In December 2017, the Claimant was issued with a first written warning for lateness, because she had arrived late on 17 out of 20 days.  The Claimant’s timekeeping did not improve, and further disciplinary proceedings were commenced.  A final written warning was issued in April 2018, which notified her that if her timekeeping did not improve, she could be dismissed.  There was still no improvement.  The Claimant was late on a further 43 occasions, arriving between two and 33 minutes late each time.  The Claimant was dismissed in May 2019.

The Claimant claimed that she had been unfairly dismissed.

What was decided?

The Claimant admitted that she was sometimes late to work, but that dismissal was a disproportionate sanction.  The Tribunal held that all instances of lateness counted as misconduct, even where it was a matter of just a few minutes.  It was not incumbent on an employer to prove to an employee that there had been actual damage arising from their conduct.  It was also accepted that employees should not just arrive at the workplace on time but be ready to start work from the time that they are being paid.

The Claimant also argued that she had been treated inconsistently with other colleagues who had arrived late but had not been dismissed.  However, the Tribunal accepted that these cases were different because these colleagues had improved their behaviour once they had received a warning, whereas the Claimant did not.  

Unusually, the Tribunal did not have sight of the employer’s Disciplinary Policy in the proceedings, but it was prepared to accept that poor timekeeping is generally regarded by employers as misconduct, and it dismissed the claim.  

The Claimant appealed to the EAT, arguing (amongst other things) that the Tribunal’s conclusion that poor timekeeping is generally regarded as misconduct was incorrect.  The EAT rejected the appeal.  It reiterated that it is incumbent on employees to be ready to begin work at their scheduled start time, and that the Tribunal was entitled to find that lateness is generally viewed as a conduct issue which may justify dismissal.   

It also agreed that the employer did not have to demonstrate that the persistent lateness caused problems, but even if that was wrong, where an employee is in receipt of a final written warning for persistent lateness and had been warned of dismissal, he or she is clearly on notice of the potential consequences, meaning no further explanation is required from the employer.

What does this mean for employers?

Most disciplinary policies will state that lateness will be treated as misconduct and may trigger disciplinary proceedings.  This decision reassures employers that even if their policy does not expressly state this, lateness is generally treated as a misconduct issue.  The decision also underlines that there are not degrees of lateness which are acceptable and should be overlooked.  Rather, employees are obliged to be ready for work at their start time and if they are not, the employer is entitled to take disciplinary action. 

It is important to remember that a fair process should be followed in order to achieve a fair dismissal.  In most cases this will involve issuing warnings before moving to dismiss.  It will also involve taking a consistent approach and listening to the particular employee’s explanation for his or her lateness and making allowances where appropriate (e.g. if the lateness is linked to a disability).

Tijani v The House of Commons Commission

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact Hannah Lynn (HannahLynn@bdbf.co.uk) , Amanda Steadman (Amanda.Steadman@bdbf.co.uk) or your usual BDBF contact.

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In Singh v Metroline West Limited the Employment Appeal Tribunal decided that an employer had committed a fundamental breach of contract when it withheld company sick pay from an employee suspected of malingering. 

What happened in this case?

Mr Singh was a bus driver for Metroline.  On 24 January 2017, he was invited to a disciplinary meeting. The next day, he went off sick.  His absence was certified by a Fit Note.  He was also assessed by an occupational health advisor, who did not report that the illness was false.  Although Metroline offered company sick pay, it decided only to pay statutory sick pay because it believed that Mr Singh had gone off sick simply to avoid the disciplinary meeting.

On 15 March 2017, Mr Singh resigned claiming constructive dismissal.  He said that the company had seriously breached his contract of employment by failing to pay company sick pay.  He brought various claims against Metroline in the Employment Tribunal.  Although he succeeded in a claim for unlawful deduction from wages in respect of the failure to pay company sick pay, he failed in the related constructive dismissal claim (being the more valuable of the two claims since it covered losses flowing from the dismissal).

The Employment Tribunal looked at the relevant documentation and noted that the employment contract and the associated “Drivers’ Handbook” both provided for the withholding of company sick pay where sickness absence was not genuine.  However, this was only permissible where a “thorough investigation” had shown this to be the case.  That had not happened here.  Metroline’s Disciplinary Policy did provide for suspension without pay where the company had simply “deemed” an employee to have reported sick to avoid a disciplinary process.  However, Metroline had not suspended Mr Singh.

The Tribunal concluded that Metroline had breached Mr Singh’s employment contract.  However, they decided that it was not a fundamental breach.  They found that the decision to withhold company sick pay pending the disciplinary meeting did not reveal an intention no longer to be bound by the employment relationship.  Rather, they were encouraging the continuance of the relationship by having Mr Singh engage in the disciplinary process.  Since there was no fundamental breach, the constructive dismissal claim failed.  Mr Singh appealed to the Employment Appeal Tribunal.

What did the EAT decide?

The EAT decided that the Tribunal had got it wrong in deciding that the breach of contract was not fundamental.  The Tribunal’s view seems to have been that in order for there to have been a fundamental breach the employer had to intend no longer to be bound by the terms of the contract in a way which meant that it no longer wished to continue the employment relationship at all.

The EAT said this was an error in law.  In fact, what is required is an intention no longer to comply with the terms of the contract that is so serious as to go to the root of the employment contract.  They gave the example of employer who wanted to keep its staff but pay them less.  If the employer decided unilaterally to cut pay this would be a fundamental breach of contract, regardless of the desire to maintain the employment relationship.

The EAT also noted that the Tribunal had not considered two important cases of relevance.  Firstly, in Cantor Fitzgerald v Callaghan it was decided that whether non-payment of wages amounts to a fundamental breach may depend on whether the non-payment was deliberate.  Secondly, in Roberts v Governing Body of Whitecross Schoolit was decided that a mistaken belief that there was a contractual power to reduce pay did not prevent there being a fundamental breach of contract.  In this case, this meant that there was only one possible answer: Metroline had committed a fundamental breach of Mr Singh’s employment contract.

What does this mean for employers?

This case highlights the perils for an employer of jumping the gun.  If the employer had paused to gather evidence to substantiate its belief that Mr Singh was malingering, it would either have been able to withhold sick pay in accordance with its own terms, or potentially have moved to dismiss summarily on the grounds of dishonesty.  Alternatively, if the imperative was simply to cut pay as quickly as possible, it could have relied on the provisions entitling suspension without pay.  Unfortunately for the company, their hair trigger response landed them with a constructive dismissal claim.  The decision also underlines that a fundamental breach of contract is the basis for a constructive dismissal claim; the employer’s wider intentions are not relevant.

Employers who find themselves in this situation should also remember that it may still be possible to proceed with a disciplinary hearing, despite the fact that the employee has gone off sick.  Disciplinary hearings can be modified to try to secure the sick employee’s participation in the process.  Examples of modifications include: where and how the hearing is held; who is allowed to accompany the employee; the role that any companion takes in the hearing; the structure and timing of the hearing; and the making of written submissions in addition to, or instead of, attending the hearing in person.  In rare cases it may even be necessary to proceed with a disciplinary hearing without the employee present. However, you should seek legal advice before proceeding down this route.  

Singh v Metroline West Ltd

BDBF is a law firm based at Bank in the City of London specialising in employment law.  If you would like to discuss any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In the recent case of Coulson v Rentplus Ltd, the Employment Appeal Tribunal upheld a decision that the Acas Code of Practice on Disciplinary and Grievance Procedures applied to a sham redundancy dismissal that was tainted by discrimination.  The Code had been completely disregarded, meaning that a maximum 25% uplift to the compensation was justified.

What happened in this case?

Ms Coulson was employed by Rentplus from 2015 as its Director of Partnerships.  In Spring 2017, Mr Collins was appointed as a consultant, with a view to him taking over as CEO later in the year.  Around this time, a decision was taken to dismiss Ms Coulson, albeit not immediately.  Mr Collins duly took over as CEO in the Autumn and, from that point onwards, Ms Coulson said she felt that she was being “frozen out”.

In early 2018, Rentplus embarked on what they badged as a redundancy exercise, despite the fact that the number of job roles were due to increase.  Ms Coulson attended redundancy consultation meetings in April and May 2018.  She also submitted a grievance alleging that she had been marginalised by Mr Collins, and that her role was not genuinely redundant.  Her grievance (and subsequent appeal) was rejected, and Ms Coulson was eventually dismissed by reason of redundancy.

She brought claims for unfair dismissal and direct sex discrimination.  The Employment Tribunal decided that the dismissal was unfair on the basis that the decision to dismiss had been taken in Spring 2017, meaning the redundancy consultation process was a “total sham”.  The Tribunal also said the dismissal was tainted by sex discrimination.  Separately, the Tribunal found the grievance process to be just as much of a sham as the redundancy process.

When awarding compensation for the unfair dismissal, the Tribunal awarded an uplift of 25% due to the company’s “egregious failures” to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures (the Code).  However, this issue was only dealt with very briefly in the judgment.

Rentplus appealed, arguing that the Tribunal had been wrong to say the Code applied where the reason for dismissal was either redundancy or sex discrimination.  Further, even if the Code did apply, the Tribunal had not identified the failings for which the uplift was being made and did not explain the basis on which it had determined the amount of the uplift.

What did the EAT decide?

The EAT noted that the Tribunal’s decision on the uplift would have benefited from a more detailed approach. However, the EAT was prepared to look at the judgment overall and consider whether, on a fair reading, the Tribunal judge had considered the four key issues.

Is the claim one which raises a matter to which the Code applies?

The EAT noted the Code applies to “disciplinary situations”.  This means that there is an issue of potential misconduct or poor performance to be addressed, regardless of how it is badged by the employer. The EAT highlighted that employers cannot sidestep the Code by dressing up a dismissal that flows from one of these things by pretending it is something else, for example, a redundancy. It was also noted that a finding of discrimination does not preclude the application of the Code.  For example, if an employer dismisses for perceived poor performance, which is partly a result of discriminatory assumptions, there will still be a disciplinary situation and the Code will apply.

In Ms Coulson’s case, redundancy had been rejected as the true reason for dismissal.  She had been dismissed because there was a belief that there were problems with her capability and/or conduct and that belief was tainted by sex discrimination.  As such, this was a disciplinary situation to which the Code applied.

If yes, has there been a failure to comply with the Code in relation to that matter?

The EAT drew a distinction between employers who attempt to comply with the Code but fall short, and those who act in bad faith and pretend to apply the letter of the Code but have already made their decision.  In the former scenario, it may not be appropriate to award an uplift, whereas it may be appropriate to do so in the latter.  In Ms Coulson’s case, it was clear that the Tribunal had concluded that the dismissal process was a sham, the dismissal was pre-determined and there had been a total failure to comply with the Code.

If yes, was the failure to comply with the Code unreasonable?

The EAT noted that in order for an uplift to apply, it is not enough that there has been a failure to comply with the Code, the failure must also be unreasonable.  In Ms Coulson’s case the Tribunal had said the breaches were “egregious”.   Therefore, it was clear that the failures in this case went beyond being merely unreasonable.

If yes, is it just and equitable to award an uplift because of the failure to comply with the Code and, if so, by what percentage?

The EAT noted that Tribunals must apply the four-stage test set out in the case of Slade v Briggs to decide whether it is right to award an uplift and, if so, by how much.  Generally, Tribunals should identify the failings for which the uplift is being made by reference to the relevant parts of the Code.  However, in Ms Coulson’s case, the Tribunal had said the dismissal process was a “complete sham” and Rentplus had acted in bad faith such that there was a total failure to apply the Code.  Therefore, they had been entitled to award a 25% uplift.

What does this mean for employers?

This decision reminds us that the question of whether the Code applies is one of substance and not form.  The key question you should ask is: do we consider the employee to be culpable for something that we wish to address in a formal process?  If yes, the chances are that the Code will apply.  Given the risk of an uplift, the safest course of action will be to observe the principles set out in the Code.

The decision also tells us that even if discrimination is present, there may still be a “disciplinary situation” meaning the Code applies.  This is important because where action is tainted by discrimination, the usual cap on compensation is lifted.  This means that the uplift for breaching the Code may be applied to a higher sum than would have otherwise been the case.  Indeed, in one recent discrimination case, a 20% uplift of over £317,000 was awarded, because the overall compensation was so high.

Rentplus UK Ltd v Coulson

BDBF is a law firm based at Bank in the City of London specialising in employment law.  If you would like to discuss any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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The decision to make employees redundant is never easy and care needs to be taken to follow a lawful process in order to avoid the risks and costs of potential claims, particularly unfair dismissal. Offering voluntary redundancy can be a useful tool for employers, however, as a recent case highlights, it will not necessarily avoid the risk of an unfair dismissal claim.

What happened in this case?

In this case, Ms White was a part-time receptionist.  Ms White was also covering administrative work for her Deputy Manager (who had been on long term sick), but for no extra pay. Ms White submitted a grievance about the failure to pay her an “acting up” allowance.

A few months later, the employer announced that it was going to reduce the number of employees carrying out administrative and reception work. Ms White was provisionally selected for redundancy.  However, at around the same time, a full-time receptionist was recruited, whose role included the administrative tasks that Ms White had been temporarily covering, but for which the new full-time receptionist was being paid to fulfil.

Against this backdrop, Ms White requested, and was given, voluntary redundancy.  After the termination of her employment, Ms White submitted a claim for unfair dismissal in the Employment Tribunal.  She argued that the redundancy process had been a sham (in light of the fact that the company still had a need for someone to perform reception and administrative tasks).  She claimed she had been targeted for redundancy because she had raised a grievance and also because the company preferred full-time to part-time staff.

What was decided?

This claim was initially rejected and struck out by the Employment Tribunal on the basis that Ms White had requested voluntary redundancy, meaning, in the Tribunal’s view, that her claim had no prospects of success.

On appeal, the Employment Appeal Tribunal reached a different conclusion. Given the background, which had led to Ms White’s request for voluntary redundancy (i.e. she believed the entire redundancy process was pre-determined and a sham), the EAT said it should not be assumed that the mere fact that she had requested voluntary redundancy meant that the redundancy was lawful.  As such, the case has been remitted to a new Employment Tribunal to decide whether or not Ms White was fairly dismissed.

What does this mean for employers?

This case is a useful reminder that an employee’s request for voluntary redundancy does not necessarily insulate an employer from Tribunal claims.  Indeed, even where an employee volunteers for redundancy, an employer may want to consider whether offering enhanced terms under a settlement agreement is worth exploring, to limit its legal exposure and to give certainty that a claim will not be brought following termination of employment.

White v H-C One Oval Ltd

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss rights arising in a redundancy situation, or any issues relating to the content of this article, please contact employment lawyer Emily Plosker (emilyplosker@bdbf.co.uk) or your usual BDBF contact.

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In the recent case of Fentem v Outform EMEA Ltd it was decided that the employer’s use of a PILON clause to bring forward an employee’s termination date after he had resigned did not amount to a dismissal.

What happened in this case?

Mr Fentem resigned from Outform, giving nine months’ notice in accordance with his employment contract. He indicated to Outform that he might be willing to be flexible about the amount of notice he served.

A month before Mr Fentem’s notice was due to expire, Outform told him that they were using the PILON clause in his employment contract to bring his termination date forward and that he would be paid in lieu of notice for the remainder of the notice period.   Bringing the termination date forward by a month meant that Mr Fentem would not be eligible for a bonus under the terms of the company’s bonus scheme.

Mr Fentem argued that where employment is terminated by an employer (no matter what the circumstances) this constitutes a dismissal. He claimed that bringing forward his termination date amounted to unfair dismissal.

What was decided?

Ever since the 1994 decision in Marshall (Cambridge) Ltd v Hamblin it has been accepted that an employee’s resignation is not converted into a dismissal if an employer exercises its contractual right to make a PILON. This decision was unpopular at the time and has remained unpopular ever since. Mr Fentem, therefore, wanted the Employment Appeal Tribunal (EAT) to look at this question again.

The EAT agreed with Mr Fentem that the use by an employer of a PILON in these circumstances should amount to a dismissal. However, the EAT concluded it could not override the earlier decision in Marshall. For the decision in Marshall to be overturned a higher court (i.e. the Court of Appeal or Supreme Court) needed to hear the case. Therefore, it held that the use of the PILON clause by Outform did not amount to a dismissal of Mr Fentem.  However, it granted permission to appeal to the Court of Appeal.

What does this decision mean for employers?

For now, the law remains that employers can bring forward the termination date of an employee who resigns and this will not constitute a dismissal (providing there is a valid PILON clause in the employee’s employment contract). If the employee’s employment contract does not contain a PILON clause, then bringing forward the employee’s termination date will amount to a dismissal.

However, it is worth remembering that the judge who made the decision in this case did so reluctantly. There are many who think the use by employers of a PILON in such circumstances should amount to a dismissal and may be overturned in a future case.  We are inclined to agree. Therefore, employers should exercise caution before using a PILON clause to bring forward an employee’s termination date without their consent.

Fentem v Outform EMEA Ltd

If you would like to discuss any issues arising out of this decision please contact Rebecca Rubin (rebeccarubin@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In the case of Hope v British Medical Association the Employment Appeal Tribunal upheld a decision that it had been fair to dismiss an employee who raised multiple informal grievances and refused to progress them or attend a grievance hearing. 

What happened in this case?

The claimant was employed by the British Medical Association between June 2014 and May 2019. By February 2019, he had raised around seven grievances.  The claimant said he wished to discuss these grievances informally with his line manager. However, as the grievances related to more senior managers, his line manager did not have authority to resolve the issues raised.

The claimant refused to progress any of the grievances to a formal stage. Instead, he sought to reserve the right to do so and did not withdraw the grievances.  However, the employer treated the complaints as formal grievances and a grievance hearing was scheduled for 21 March 2019.  The claimant refused to attend despite being informed that attendance was a reasonable management instruction. He was also told that if he persisted with filing grievances this may be treated as a disciplinary issue.

Eventually, he was invited to attend a disciplinary hearing in April 2019 to respond to three allegations made against him. These were that:

• he had submitted numerous, frivolous grievances against two senior managers;
• he had failed to follow a reasonable management instruction to attend the grievance hearing; and
• there had been a fundamental breakdown of the working relationship between him and senior management.

The disciplinary chair concluded that each of the allegations was made out and the claimant was dismissed for gross misconduct.  He brought a claim for unfair dismissal. The Employment Tribunal found that the dismissal was fair.  The claimant appealed to the EAT.

What did the EAT decide?

The claimant argued that the Employment Tribunal had failed to consider whether the alleged misconduct was capable of amounting to gross misconduct in the contractual sense.  He suggested that the Tribunal should have considered whether his conduct amounted to either a “deliberate and wilful contradiction of the contractual terms” or “very considerable negligence”.  He also argued that the Tribunal’s decision was perverse, and his conduct did not justify dismissal.

The EAT held that the employer had not raised “contractual gross misconduct” as a reason for the dismissal and, on that basis, a contractual analysis was not required. The EAT disagreed with the claimant’s submission that whenever the label “gross misconduct” is used an analysis of whether the conduct amounts to either a wilful contradiction of the contract or gross negligence is always required.  In this case, the real question was the statutory one, namely, whether the employer had acted reasonably in treating the conduct as a sufficient reason to dismiss.

The EAT also concluded that the Tribunal’s decision was not perverse.  Importantly, the EAT noted that the proper purpose of grievance procedures is to resolve concerns, not to act as a repository for complaints to be left unresolved and resurrected at will.  It was unreasonable for the claimant to raise numerous complaints and expect to leave them unresolved.   His failure to attend the grievance hearing could also be regarded as wrongdoing in the circumstances.  Therefore, the Tribunal was entitled to conclude that the dismissal fell within the band of reasonable responses of a similarly sized employer.  The appeal was dismissed.

What does this mean for employers?

This decision confirms what many employers already knew, namely that a dismissal is fair if it complies with the requirements of the statute – there is no gloss requiring the employer always to show contractual gross misconduct or negligence.  However, this does not mean that dismissing an employee for misconduct is straightforward.  There are still the statutory questions of whether the misconduct is sufficient to justify dismissal and whether a fair dismissal procedure has been followed to address.  Failure to satisfy both elements puts an employer at risk of an unfair dismissal claim.

The decision also shows that the raising of multiple frivolous grievances, and a failure to progress them formally, may justify dismissal.  Employers may wish to update disciplinary rules to specify that this will be treated as gross misconduct.

Hope v British Medical Association

If you would like to discuss any issues arising out of this decision please contact James Hockley (jameshockley@bdbf.co.uk) or your usual BDBF contact.

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