Case round-up: top cases of the past 12 months

Tarbuck v Sainsbury’s Supermarkets The Employment Appeal Tribunal (EAT) confirmed that a failure to consult a disabled employee about reasonable adjustments does not in itself amount to a failure to make reasonable adjustments.

O’Hanlon v HM Revenue & Customs The Court of Appeal (CA) confirmed that the employer was not obliged to continue paying sick pay to O’Hanlon, who was disabled, once her sick pay entitlement had run out. It would be a rare case where extra pay to a disabled employee amounts to a reasonable adjustment. However, where the employer has contributed to the employee’s ill health by failing to make reasonable adjustments, an employee may recover compensation for loss of sick pay (Nottingham County Council v Meikle).

McAdie v Royal Bank of Scotland The CA held that an employer can fairly dismiss an employee for incapacity, even in circumstances where the employer has caused or contributed to their ill health. However, the employer must ‘go the extra mile’ before dismissing in such cases.

Intel Corporation (UK) Limited v Daw The CA held that the mere fact that an employer provides a confidential counselling service to employees does not discharge it of its duty of care in all cases. Whether or not the duty is discharged will depend on all of the facts of each case.

St Helens Metropolitan Borough Council v Derbyshire and others The House of Lords held that letters sent by the council to employees warning them of serious consequences for the organisation if their equal pay claims were successful amounted to victimisation under the Sex Discrimination Act 1975. The letters were sent to put pressure on the claimants to settle, and were effectively a threat. While an employer may make honest and reasonable attempts to settle a claim, the council had gone too far in this case.

Cadman v Health and Safety Executive The European Court of Justice held that it is not generally necessary for an employer to objectively justify a difference in pay between men and women as a result of using length of service as a criterion in determining pay, even where this results in disparate pay between men and women employed in the same or similar work. However, employees will be able to challenge this pay practice where evidence raises ‘serious doubts’ that length of service achieves the objective of rewarding experience which enables the employee to perform their duties better.

Blundell v the governing body of St Andrew’s Catholic Primary School The EAT said that Blundell, a primary school teacher, had been offered the ‘same job’ when she returned from maternity leave and was allocated to a different class. The EAT said that a woman returning from maternity leave should come back to a work situation as near as possible to the one she left, and that it is up to the tribunal to define that job based on the evidence.

Commerzbank AG v Keen The CA held that the bank had a very wide discretion in deciding what bonus to award, and that to make out his case, Keen would have to show that no rational City bank would have awarded him a similar bonus. This case set a high hurdle for employees when challenging bonus decisions. The CA also confirmed that the Unfair Contract Terms Act 1977 does not apply to bonus provisions in a contract of employment.

Airbus UK v Webb The EAT decided that an expired disciplinary warning cannot be relied upon by an employer for any purposes, and a tribunal is obliged, and not merely entitled, to ignore expired warnings.

Babula v Waltham Forest College The CA held that an employee who holds an honest but mistaken belief that he is disclosing a breach of a legal obligation is protected by the whistleblowing legislation. Provided that the tribunal considers the employee’s belief is reasonable, the fact that the belief subsequently turns out to be wrong is irrelevant. In coming to its decision, the CA reversed the EAT’s previous decision in Kraus v Penna.

Judith Harris, professional support lawyer, Addleshaw Goddard

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