Case round-up

Zoe Balmforth and Joe Glavina of Addleshaw Goddard outline the latest legal rulings and explain what you need to know to avoid tribunals

Case of the month: Failure to make reasonable adjustments

Greenhof v Barnsley Metropolitan Borough Council

Serious failure to make reasonable adjustments will amount to a breach of the implied term of mutual trust and confidence

The Employment Appeal Tribunal (EAT) has held that where an employer is found to be in serious breach of the duty to make reasonable adjustments under the Disability Discrimination Act 1995 (DDA), the tribunal was bound to hold that the employer had breached the implied term of trust and confidence.

Since Greenhof had resigned in response to that fundamental breach of contract, he was entitled to claim not only that he had been discriminated against on grounds of his disability, but also that he had been unfairly dismissed.

Greenhof suffered from clinical depression and was disabled within the meaning of the DDA. The nature of his employment – a role involving securing council properties that had been occupied by drug dealers and drug users – caused him distress and he was off sick for some time.

Subsequently, he was required to give evidence against two other employees as part of disciplinary proceedings that caused further stress and further absence from work. When he returned, the employer suggested he take a less stressful role in technical support. Greenhof said he wanted to continue his existing role and felt under pressure to accept the new role. He resigned and claimed constructive unfair dismissal.

The court held that Greenhof had been pressured into taking the lesser role. The council should have approached Greenhof’s doctor and its own occupational health (OH) experts to establish what duties he could not safely undertake. The tribunal concluded the council was in breach of its duty to make reasonable adjustments. However, it rejected Greenhof’s claim that this amounted to a fundamental breach of contract giving him the right to claim constructive unfair dismissal. Greenhof appealed.

The EAT upheld his appeal. Once the tribunal had found that there had been a serious breach by the employer of its obligations to make reasonable adjustments, it followed that the employer must have been in breach of the implied term of trust and confidence. Such a breach will always amount to a repudiatory or fundamental breach of contract entitling the employee to resign and claim constructive dismissal.

The EAT acknowledged that there may be circumstances where a breach of the obligation to make reasonable adjustments does not amount to a repudiatory breach of contract, but did not go on to identify these circumstances. It will be a matter for a tribunal to determine, taking into account the seriousness of the employer’s failure to make reasonable adjustments.

What you should do



  • Provide adequate training in discrimination for your line managers. This case is a good illustration of the importance of ensuring that line managers receive proper training so they are able to spot potential discrimination issues before they arise. There have been a series of cases recently where the EAT has criticised, and in one case even named, managers who had an insufficient understanding of the legislation.
  • Always consider the medical evidence. The employer in this case thought that it was acting sympathetically to the employee in proposing a reduced, less stressful role. Its mistake, however, was in failing to take account of information from the employee’s doctor and the company’s own OH department about any possible impact of the employee’s disability on his ability to carry out his job. 

Millar v HMRC

Scottish Court of Session (Inner House) Disability – definition of an impairment

Under the Disability Discrimination Act (DDA), “a person has a disability if he has a physical or mental impairment which has a substantial or long-term effect on his ability to carry out normal day-to-day activities”. There is no definition of “impairment” in the Act, and previous case law has held that it must bear its ordinary and natural meaning. In this case, the Court of Session in Scotland was asked to consider what is meant by an “impairment” and ruled that it is possible to find that a person has a physical impairment without knowing what caused it and without finding the disabled person had any “illness”.

Millar was dismissed from the Inland Revenue in August 2002 after being on long-term sick leave following an accident at work four years earlier. As a result of the accident, he suffered from sensitivity to bright light (photophobia) and his left eyelid began to droop (ptosis). He had difficulty coping with bright light, could not use a VDU screen, and had problems indoors in artificially lit rooms for long periods. He also suffered blurred vision and headaches. Doctors, however, could not find a physical cause for his symptoms despite numerous tests. He was subsequently dismissed and brought a claim for unfair dismissal and disability discrimination.

The tribunal found that Millar was not disabled under the DDA because his condition was not physical and no clinically well-recognised mental impairment had been shown. The tribunal also refused his appeal and the case was taken to the Court of Session, with support from the Disability Rights Commission.

Millar argued that if the impairment itself was physical, regardless of whether it resulted from a physical or mental illness, then he was covered by the DDA. Only in the case of mental impairments, he argued, would it be necessary to consider whether the cause was clinically well-recognised. The court agreed and ruled that the tribunal had not reached its decision on a proper assessment of the evidence and so remitted the case back to the tribunal to make a proper assessment of the evidence and to decide whether Millar had a physical or mental impairment.

In the court’s view, there is no equivalent of paragraph 1 of schedule 1 where there is a physical impairment – many physical impairments can result from conditions that cannot be described as an “illness” (for example, loss of a limb). It stated that it is a matter of fact whether an impairment is physical or mental and that proof that the claimant’s symptoms are caused by a physical illness or other condition will normally exclude paragraph 1. However, proof there is no physical cause of, or explanation for, the symptoms would be an important factor.

Be aware that the law in this area has recently changed. The DDA’s requirement that where a mental impairment results from or consists of a mental illness it must be clinically well-recognised was removed when the Disability Discrimination Act 2005 came into force on 5 December 2005. The change will mean that distinctions between whether an impairment is mental or physical will be less important.

What you should do



  • When assessing whether an employee has a disability, be aware that the individual may be afforded protection by the Act even if they cannot tell you what caused their condition – even if it doesn’t appear they suffer from an “illness” at all.

Cranwick Country Foods plc v GMB

Level of protective award where employer failed to consult

The EAT has upheld protective awards of 70 days’ pay where an employer, facing re-organisation, did not start its collective redundancy consultation procedure early enough. This is an important case, which illustrates the serious consequences of failing to start collective consultation in good time.

Where an employer fails to comply with its collective redundancy consultation obligations, the tribunal can order it to pay gross salary in respect of the “protected period” to each affected employee. The protected period is a period that the tribunal considers to be just and equitable but cannot be longer than 90 days. The payment made in respect of the protected period is called a “protective award”. The protective award is punitive, not compensatory, and the courts have made it clear that, in determining the amount of the protective award, a tribunal should start with the maximum protected period of 90 days and reduce the period (and therefore the amount of the protective award) only if there are mitigating circumstances which justify such a reduction.

In mid-2003, Cranwick considered consolidating its two sites into one new site, which would result in redundancies from its site in Thornaby on Tees. It found a new site in August 2003, submitted a bid for the site in September 2003 which was accepted in November 2003, and sought planning permission. On 5 January 2004, the board was informed of the intention to relocate to the new site. On 12 January 2004, planning permission was approved, and in early February 2004, contracts for the land were exchanged.

Only after then, on 18 February 2004, did Cranwick commence consultation with the GMB in respect of the 90-95 redundancies proposed in the first stage of the Thornaby closure. There were two further meetings with the GMB, and Cranwick did provide some advice to affected employees regarding CVs and financial matters, but there was no meaningful consultation on avoiding the dismissals. The first dismissals took effect on 12 April 2004, and the employees claimed a protective award for failure to consult properly.

The tribunal decided in favour of the employees and ordered protective awards of 70 days’ pay for each affected employee. The tribunal found that the proposal to make the employees redundant had been reached at the board meeting on 5 January 2004 at the latest, and possibly much earlier.

The tribunal reduced the protective awards from 90 days’ to 70 days’ pay, to reflect the advice that Cranwick had provided which, while not meaningful in ways to avoid the redundancies altogether, had potentially mitigated the consequences of dismissals. Cranwick appealed to the EAT, which upheld the tribunal’s decision.

This case highlights the firm stance tribunals are taking where employers fail to adequately consult and illustrates the use of the protective award as a punitive tool rather than a compensatory one. The minimal support Cranwick provided to the employees was reflected in the minimal reduction of the protected period for which the protective award was paid.

The fact that the dismissals were effected more than 30 days after consultation began was not relevant to the decision to make a protective award. The 30-day period set out in the legislation is only the minimum period of consultation, but, as this case shows, employers will be penalised regardless of when the dismissal take effect if consultation starts too late.

What you should do



  • Ensure that, when carrying out collective redundancies, you commence collective consultation when redundancies are pro-posed so that it is possible to have meaningful consultation about the ways of avoiding dismissals, reducing the number of proposed dismissals, and mitigating the consequences of any dismissals. You must also ensure that consultation commences “in good time” before the first redundancy is proposed to take effect, bearing in mind the minimum periods of 30 or 90 days, depending on the number of proposed redundancies
  • When considering proposed redundancies at board meetings, any resolutions on such decisions should be made “subject to consultation”, which should then commence as soon as possible
  • Remember also that to protect against automatically unfair dismissal claims, dismissals must be carried out in accordance with the statutory dismissal and disciplinary procedures

Rothwell v Pelikan Hardcopy Limited
Failure to consult before dismissal leads to disability discrimination and unfair dismissal

The EAT has overturned a tribunal decision and found that an employer’s failure to consult with an employee before dismissing him on medical grounds amounted to unfair dismissal and disability discrimination.

Rothwell suffered from Parkinson’s disease, a fact of which Pelikan was aware when he was recruited. His condition was treated sympathetically during his employment and adjustments were made to his role to accommodate his illness.

In November 2003, Rothwell’s health deteriorated and he was absent from work, so Pelikan arranged for him to see its independent occupational health (OH) doctor. The doctor was pessimistic about Rothwell’s condition but instructed a neurologist, who provided a more optimistic report, referring to new treatment that might allow him to return to work.

The OH doctor met with Rothwell and discussed the report but did not show it to him. She then wrote to Pelikan and advised that Rothwell would not be well enough to return to work in the foreseeable future. While she referred to the neurologist’s report, she did not advise Pelikan of his optimistic prognosis or provide Pelikan with a copy of the report. Pelikan met with Rothwell on 7 January 2004, having already taken the decision to dismiss. Rothwell told Pelikan that he was not happy with the meeting with the OH doctor and urged Pelikan to consider the neurologist’s suggestion that he might be fit to return to work. Despite his comments, Pelikan still dismissed Rothwell.

The tribunal rejected his claims of unfair dismissal and disability discrimination but the EAT reversed the decision on appeal by Rothwell. Regarding unfair dismissal, the EAT confirmed that only in an exceptional case, which this was not, would it be fair to dismiss someone for incapacity reasons without prior consultation.

The EAT rejected the argument that the meeting on 7 January 2004 amounted to consultation as it was apparent that Pelikan had made its decision to dismiss before that meeting started.

Regarding disability discrimination, the EAT noted generally that less favourable treatment could not be justified if any reasonable adjustments that should have been made had not been made. Applying that rational to this case, the EAT held that failure to consult properly with Rothwell before dismissing him amounted to a failure to make a reasonable adjustment, which could have altered Pelikan’s decision to dismiss (on the basis that if Pelikan had properly consulted, it would have had access to the neurologist’s more optimistic report and may not have dismissed). The EAT held therefore that Pelikan was in breach of its duty to make reasonable adjustments and had treated Rothwell less favourably on account of his disability, and that the less favourable treatment was not justifiable.

After treating Rothwell with sensitivity and sympathy during his employment (a fact accepted by all), Pelikan fell at the final hurdle by not properly consulting with him before dismissing him. Employees should always be consulted about medical information before making any decisions with regard to the employee’s employment. This case serves as a useful reminder of the dangers of pre-determining the outcome of a meeting which might lead to dismissal, of failing adequately to listen to an employee and, importantly, to consider fully any points the employee raises.

What you should do



  • Ensure that you consult employees about medical reports relating to their employment before you implement any proposals contained in such reports. This is especially important if you have conflicting medical information. Also, remember to listen to and consider any points the employee raises before making a decision regarding the employee’s position.
  • Remember that any dismissals must be carried out in accordance with the three-step statutory dismissal and disciplinary procedures.

Millar v HMRC

Scottish Court of Session (Inner House) Disability – definition of an impairment

Under the Disability Discrimination Act (DDA), “a person has a disability if he has a physical or mental impairment which has a substantial or long-term effect on his ability to carry out normal day-to-day activities”. There is no definition of “impairment” in the Act, and previous case law has held that it must bear its ordinary and natural meaning. In this case, the Court of Session in Scotland was asked to consider what is meant by an “impairment” and ruled that it is possible to find that a person has a physical impairment without knowing what caused it and without finding the disabled person had any “illness”.

Millar was dismissed from the Inland Revenue in August 2002 after being on long-term sick leave following an accident at work four years earlier. As a result of the accident, he suffered from sensitivity to bright light (photophobia) and his left eyelid began to droop (ptosis). He had difficulty coping with bright light, could not use a VDU screen, and had problems indoors in artificially lit rooms for long periods. He also suffered blurred vision and headaches. Doctors, however, could not find a physical cause for his symptoms despite numerous tests. He was subsequently dismissed and brought a claim for unfair dismissal and disability discrimination.

The tribunal found that Millar was not disabled under the DDA because his condition was not physical and no clinically well-recognised mental impairment had been shown. The tribunal also refused his appeal and the case was taken to the Court of Session, with support from the Disability Rights Commission.

Millar argued that if the impairment itself was physical, regardless of whether it resulted from a physical or mental illness, then he was covered by the DDA. Only in the case of mental impairments, he argued, would it be necessary to consider whether the cause was clinically well-recognised. The court agreed and ruled that the tribunal had not reached its decision on a proper assessment of the evidence and so remitted the case back to the tribunal to make a proper assessment of the evidence and to decide whether Millar had a physical or mental impairment.
In the court’s view, there is no equivalent of paragraph 1 of schedule 1 where there is a physical impairment – many physical impairments can result from conditions that cannot be described as an “illness” (for example, loss of a limb). It stated that it is a matter of fact whether an impairment is physical or mental and that proof that the claimant’s symptoms are caused by a physical illness or other condition will normally exclude paragraph 1. However, proof there is no physical cause of, or explanation for, the symptoms would be an important factor.

Be aware that the law in this area has recently changed. The DDA’s requirement that where a mental impairment results from or consists of a mental illness it must be clinically well-recognised was removed when the Disability Discrimination Act 2005 came into force on 5 December 2005. The change will mean that distinctions between whether an impairment is mental or physical will be less important.

What you should do



  • When assessing whether an employee has a disability, be aware that the individual may be afforded protection by the Act even if they cannot tell you what caused their condition – even if it doesn’t appear they suffer from an “illness” at all.

Cranwick Country Foods plc v GMB
Level of protective award where employer failed to consult


The EAT has upheld protective awards of 70 days’ pay where an employer, facing re-organisation, did not start its collective redundancy consultation procedure early enough. This is an important case, which illustrates the serious consequences of failing to start collective consultation in good time.

Where an employer fails to comply with its collective redundancy consultation obligations, the tribunal can order it to pay gross salary in respect of the “protected period” to each affected employee. The protected period is a period that the tribunal considers to be just and equitable but cannot be longer than 90 days. The payment made in respect of the protected period is called a “protective award”. The protective award is punitive, not compensatory, and the courts have made it clear that, in determining the amount of the protective award, a tribunal should start with the maximum protected period of 90 days and reduce the period (and therefore the amount of the protective award) only if there are mitigating circumstances which justify such a reduction.

In mid-2003, Cranwick considered consolidating its two sites into one new site, which would result in redundancies from its site in Thornaby on Tees. It found a new site in August 2003, submitted a bid for the site in September 2003 which was accepted in November 2003, and sought planning permission. On 5 January 2004, the board was informed of the intention to relocate to the new site. On 12 January 2004, planning permission was approved, and in early February 2004, contracts for the land were exchanged.

Only after then, on 18 February 2004, did Cranwick commence consultation with the GMB in respect of the 90-95 redundancies proposed in the first stage of the Thornaby closure. There were two further meetings with the GMB, and Cranwick did provide some advice to affected employees regarding CVs and financial matters, but there was no meaningful consultation on avoiding the dismissals. The first dismissals took effect on 12 April 2004, and the employees claimed a protective award for failure to consult properly.

The tribunal decided in favour of the employees and ordered protective awards of 70 days’ pay for each affected employee. The tribunal found that the proposal to make the employees redundant had been reached at the board meeting on 5 January 2004 at the latest, and possibly much earlier.

The tribunal reduced the protective awards from 90 days’ to 70 days’ pay, to reflect the advice that Cranwick had provided which, while not meaningful in ways to avoid the redundancies altogether, had potentially mitigated the consequences of dismissals. Cranwick appealed to the EAT, which upheld the tribunal’s decision.

This case highlights the firm stance tribunals are taking where employers fail to adequately consult and illustrates the use of the protective award as a punitive tool rather than a compensatory one. The minimal support Cranwick provided to the employees was reflected in the minimal reduction of the protected period for which the protective award was paid.

The fact that the dismissals were effected more than 30 days after consultation began was not relevant to the decision to make a protective award. The 30-day period set out in the legislation is only the minimum period of consultation, but, as this case shows, employers will be penalised regardless of when the dismissal take effect if consultation starts too late.

What you should do



  • Ensure that, when carrying out collective redundancies, you commence collective consultation when redundancies are pro-posed so that it is possible to have meaningful consultation about the ways of avoiding dismissals, reducing the number of proposed dismissals, and mitigating the consequences of any dismissals. You must also ensure that consultation commences “in good time” before the first redundancy is proposed to take effect, bearing in mind the minimum periods of 30 or 90 days, depending on the number of proposed redundancies.
  • When considering proposed redundancies at board meetings, any resolutions on such decisions should be made “subject to consultation”, which should then commence as soon as possible.
  • Remember also that to protect against automatically unfair dismissal claims, dismissals must be carried out in accordance with the statutory dismissal and disciplinary procedures.

Rothwell v Pelikan Hardcopy Limited
Failure to consult before dismissal leads to disability discrimination and unfair dismissal

The EAT has overturned a tribunal decision and found that an employer’s failure to consult with an employee before dismissing him on medical grounds amounted to unfair dismissal and disability discrimination.

Rothwell suffered from Parkinson’s disease, a fact of which Pelikan was aware when he was recruited. His condition was treated sympathetically during his employment and adjustments were made to his role to accommodate his illness.

In November 2003, Rothwell’s health deteriorated and he was absent from work, so Pelikan arranged for him to see its independent occupational health (OH) doctor. The doctor was pessimistic about Rothwell’s condition but instructed a neurologist, who provided a more optimistic report, referring to new treatment that might allow him to return to work.

The OH doctor met with Rothwell and discussed the report but did not show it to him. She then wrote to Pelikan and advised that Rothwell would not be well enough to return to work in the foreseeable future. While she referred to the neurologist’s report, she did not advise Pelikan of his optimistic prognosis or provide Pelikan with a copy of the report. Pelikan met with Rothwell on 7 January 2004, having already taken the decision to dismiss. Rothwell told Pelikan that he was not happy with the meeting with the OH doctor and urged Pelikan to consider the neurologist’s suggestion that he might be fit to return to work. Despite his comments, Pelikan still dismissed Rothwell.

The tribunal rejected his claims of unfair dismissal and disability discrimination but the EAT reversed the decision on appeal by Rothwell. Regarding unfair dismissal, the EAT confirmed that only in an exceptional case, which this was not, would it be fair to dismiss someone for incapacity reasons without prior consultation.

The EAT rejected the argument that the meeting on 7 January 2004 amounted to consultation as it was apparent that Pelikan had made its decision to dismiss before that meeting started.

Regarding disability discrimination, the EAT noted generally that less favourable treatment could not be justified if any reasonable adjustments that should have been made had not been made. Applying that rational to this case, the EAT held that failure to consult properly with Rothwell before dismissing him amounted to a failure to make a reasonable adjustment, which could have altered Pelikan’s decision to dismiss (on the basis that if Pelikan had properly consulted, it would have had access to the neurologist’s more optimistic report and may not have dismissed). The EAT held therefore that Pelikan was in breach of its duty to make reasonable adjustments and had treated Rothwell less favourably on account of his disability, and that the less favourable treatment was not justifiable.

After treating Rothwell with sensitivity and sympathy during his employment (a fact accepted by all), Pelikan fell at the final hurdle by not properly consulting with him before dismissing him. Employees should always be consulted about medical information before making any decisions with regard to the employee’s employment. This case serves as a useful reminder of the dangers of pre-determining the outcome of a meeting which might lead to dismissal, of failing adequately to listen to an employee and, importantly, to consider fully any points the employee raises.

What you should do



  • Ensure that you consult employees about medical reports relating to their employment before you implement any proposals contained in such reports. This is especially important if you have conflicting medical information. Also, remember to listen to and consider any points the employee raises before making a decision regarding the employee’s position.
  • Remember that any dismissals must be carried out in accordance with the three-step statutory dismissal and disciplinary procedures.

Hot spots

Detriment compensation to be properly assessed

The Court of Appeal has held that where an employee has been subjected to a detriment for having made a protected disclosure, and has then resigned claiming constructive dismissal, compensation in respect of that detriment should be assessed up to the point of dismissal.

Melia v Magna Kansei Limited

Solicitor’s letter can be constituted as a grievance

A solicitor’s letter setting out a claimant’s complaints and threatening legal action constituted a grievance for the purpose of the statutory grievance procedures. The only requirement for a grievance is that there is a written complaint by the employee, or someone acting as their agent.

Stewart v Barnetts Motor Group Limited

New fathers missing out on paid paternity leave

According to a report by the national charity, Citizens Advice, new fathers are missing out on paid paternity leave because they are not aware of the rule requiring them to give 15 weeks’ notice. Evidence from the Citizens Advice Bureaux has found that some employers are applying the 15-week rule rigidly.

Enforcement strategy

The Information Commissioner has launched a new enforcement strategy, targeting organisations that deliberately or persistently breach their obligations under the Data Protection Act 1998. The aim is to ensure personal information is properly protected. The focus will be on organisations guilty of serious breaches.

www.informationcommissioner.gov.uk


DDA amendments

Parts of the Disability Discrimination Act 2005 came into force on 5 December 2005. Sections amending the definition of disability so that mental illness need no longer be clinically well recognised to be a mental impairment, and sections deeming people with cancer, HIV infection or multiple sclerosis to be disabled, are now in force.

www.personneltoday.com/32819.article






 

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