Quarter 2: Employment case law update

For the next installment in our quarterly case law series, we look back at some of the key cases from the past three months and the lessons which we can learn from them.

Discrimination

Once again, discrimination cases play a key part in this quarterly update. In the case of Gan Menachem Hendon Limited v De Groen, Ms De Groen worked at a Jewish nursery run in accordance with ultra-orthodox Chabad principles. During her time there it came to light that she was co-habiting with her boyfriend. Cohabitation out of wedlock was contrary to the ultra-orthodox principles of the nursery. Ms De Groen was invited to a meeting at which she was told her private life risked damaging the nursery’s reputation. Ms De Groen refused to change her living arrangements or lie to say that she had done so, which ultimately led to her dismissal. She brought various claims including a claim of direct discrimination on grounds of religion. However, on appeal, the Employment Appeal Tribunal (EAT) found there had been no direct discrimination. This was because the employer had been acting because of its own religion or belief, not that of Ms De Groen. Interestingly, the EAT confirmed that the legislation in respect of direct discrimination was effectively designed to protect those with the protected characteristic themselves rather than to protect others from people with that protected characteristic.

The case of iforce Ltd v Wood concerned a claim for discrimination arising as a consequence of a disability. Ms Wood worked in a warehouse. She had osteoarthritis which worsened in cold, damp weather. Ms Wood and other employees were asked to move between benches in the warehouse to “follow the work”. Ms Wood believed that moving to the benches nearest the doors would exacerbate her disability due to cold and damp conditions. Her employer investigated and found that there was no difference in temperature or humidity and therefore Ms Wood’s refusal was unreasonable. She was issued with a final written warning (later downgraded to a written warning at appeal). Ms Wood claimed discrimination arising in consequence of a disability.  However, the EAT found that the claim failed on the basis that there was no causal link between the ‘something’ that happened (her dismissal because of her refusal to move) and her disability. Her refusal to move was, in fact, due to her mistaken belief that she would suffer and such belief was not a cause of her disability.

Suspension

The case of The Mayor & Burgesses of the London Borough of Lambeth v Simone Agoreyo acts as a reminder that the decision to suspend an employee should not be a ‘knee-jerk’ reaction. Ms Agoreyo was a teacher at a London school who was suspended following three incidents of what was described as “heavy handed” and “aggressive” behaviour towards two children in her class. Ms Agoreyo claimed that she the suspension was a breach of the implied term of mutual trust and confidence. The Court of Appeal (CA) noted that the reasonableness of suspension must be decided on a case by case basis and whether, based on the facts, the suspension would seriously damage the relationship of confidence and trust between the employer and employee. In this case, the CA found for the school and that the suspension was not a breach of trust and confidence. Whilst successful in this case, it does highlight the need to consider other appropriate action before suspension to ensure that it is not used as a disciplinary measure.

It is generally accepted that suspension of an employee should be on full pay. The case of North West Anglia NHS Foundation Trust v Gregg reinforces this principle.
During 2016 and 2017, the Trust became concerned that Dr Gregg had hastened the deaths of a number of patients and opened disciplinary proceedings to investigate. The Trust followed the relevant procedures by initiating the process in Maintaining High Professional Standards in the NHS and notifying the police and Dr Gregg was suspended on full pay. The CPS decided that there was insufficient information to charge Dr Gregg in relation to one death but continued to investigate into a second patient’s death. The General Medical Council suspended Dr Gregg’s registration to practice for 18 months. Subsequently the Trust felt that the doctor’s suspension was no longer necessary and lifted it but instead discontinued his pay. Dr Gregg was advised by his own lawyer not to participate in any disciplinary hearing as he would risk prejudicing himself in the criminal investigation but the Trust refused to adjourn the hearing following advice from the police that this would not interfere with their investigation. Dr Gregg applied and obtained an interim injunction preventing the Trust from continuing with its investigation until the police investigation was complete. The Trust appealed. At the appeal, it was held that the Trust had not been entitled to withhold Dr Gregg’s salary whilst he was suspended. Where the contract does not address expressly whether pay can be deducted during an interim suspension, the default position is that pay should not be deducted. However, the Trust was entitled to commence disciplinary proceedings as there was no evidence this would give rise to a miscarriage of justice.

Rest breaks

In Network Rail Infrastructure v Crawford, the matter of rest breaks was discussed. Mr Crawford was a railway signaller whose job was to provide relief cover at railway signal boxes. He regularly working in single-manned boxes doing 8 hour shifts. Under Regulation 12 of the Working Time Regulations 1998, a worker doing an 8 hour shift is entitled to a 20 minute break. However, there are exceptions including workers that work in railway transport whose activities are linked to transport timetables and ensuring the continuity and regularity of traffic. In these cases, the worker must be offered at least the equivalent of a 20 minute break known as a compensatory break. The Employment Tribunal (ET) found that there were “numerous naturally occurring breaks” where the worker would (as an example) have about 49 minutes’ aggregate of naturally occurring breaks during a 2 hour period and during the breaks, signallers enjoyed undertaking hobbies and other private activities. The CA upheld that the compensatory break was equivalent or better than a 20 minute continuous break and that the employer’s actions were sensible to meet service requirements. This provides some comfort to employers who have workers involved in the need for “continuity of service of production” who can retain flexibility when arranging equivalent rest breaks so long as health and safety is kept firmly in mind.

Unfair Dismissal

The case of Governors of Tywyn Primary School v Aplin raised an interesting point regarding constructive dismissal. Mr Aplin was an openly gay headteacher. He met two 17-year old boys on ‘Grindr’. The school carried out an investigation into whether his conduct had brought the school into disrepute. However, the investigating officer showed a striking lack of objectivity and took the view that child protection issues were involved even though the local authority had confirmed this was not the case. In addition, the investigator advised the governors and referred to documents Mr Aplin had not seen. Mr Aplin was subsequently dismissed on notice on the basis his position was untenable. However, following an appeal hearing during which Mr Aplin was also not given access to all the evidence which the panel had based its decision on, and before the end of his notice period, Mr Aplin resigned claiming flaws in the disciplinary process amounted to a constructive dismissal and sexual orientation discrimination. The ET held Mr Aplin had affirmed the contract by appealing the decision to dismiss him and therefore acting as if he was still employed, although the flaws in the appeal hearing were enough to establish a constructive dismissal. On appeal, the EAT agreed there was a constructive dismissal, albeit the appeal process was not affirmation of the contract but rather a case of the employee giving the employer an opportunity to remedy the breach.

Radia v Jefferies International Ltd again concerned procedural issues. Mr Radia was a managing director of Jefferies International. Jefferies International is regulated by the Financial Conduct Authority and Mr Radia’s job was a regulated position. In 2016 he brought a claim for disability discrimination and the ET at the time found his credibility questionable and therefore his behaviour as a regulated person was a matter of grave concern. Having received the ET’s findings, Jefferies International entered disciplinary proceedings and dismissed Mr Radia for gross misconduct due to the credibility findings. Mr Radia then brought a claim for victimisation and a further claim in which he stated that his suspension, dismissal and the refusal to hold an appeal hearing amounted to whistleblowing detriment, victimisation and unfair dismissal. All of his claims were dismissed by the ET fundamentally because of the first Tribunal’s decision that Mr Radia lacked credibility. Mr Radia appealed. The EAT found that the dismissal was unfair, notwithstanding the credibility issue, especially considering that an appeal hearing was not allowed being contrary to the ACAS code and contrary to Jefferies International’s own internal process.

These cases are a reminder to employers that whilst procedural errors throughout the disciplinary process do not ultimately mean that a dismissal will be unfair, acting contrary to ACAS guidance and internal procedures can be fatal in an unfair dismissal claim.