Pregnant fixed-term workers gain protection of the law

In a landmark ruling, a worker was unlawfully dismissed even
though she hid her pregnancy at interview and was unable to fulfil most of her
contract. Plus cases on when sickness-related dismissal will be safe from
disability discrimination claims, and how not to conduct an unfair dismissal
settlement

Pregnancy-related dismissal unlawful
Tele Danmark v Brandt-Nielsen
IDS Brief 696, ECJ

Brandt was appointed on a six-month contract commencing 1 July 1995 and the
first two months were to be spent training. Brandt was due to give birth in
November, but did not tell Tele Danmark this. When she told her employer in
August about her pregnancy she was dismissed.

Brandt claimed sex discrimination, but was unsuccessful because she had
failed to tell the company about her pregnancy. The decision was reversed on
appeal, the court deciding Brandt had been dismissed on the grounds of her
pregnancy.

Tele Danmark appealed to the Danish Supreme Court, which referred the matter
to the ECJ. Tele Danmark argued that it dismissed Brandt because she could not
perform a substantial part of the contract, not because she was pregnant. And
her failure to inform them of the pregnancy at the outset breached the duty of
good faith.

The ECJ held the Equal Treatment and Pregnant Workers Directives applied.
Dismissal (or refusal to recruit) because a worker is pregnant is direct sex
discrimination, regardless of any financial loss incurred by the employer
arising out of the employee’s absence because of pregnancy and regardless of
whether the worker is fixed-term or permanent.

An employee’s inability to perform a substantial part of the contract, the
size of the employing organisation and the fact that it may regularly use
temporary workers are irrelevant.

Dismissal for persistent absence lawful, despite disability
Callagan v Glasgow City Council
IRLR 724, EAT

Callagan commenced employment in 1993 and in 1996 his attendance record
deteriorated. He failed to follow the absence reporting procedures and was
given a verbal warning, followed by a written warning in November 1997.

The council arranged meetings to discuss the situation but Callagan failed
to attend. His attendance remained poor and in September 1999 he was dismissed.

Callagan claimed disability discrimination on the basis that his absences
were caused by a disability (depression) and that he had been treated less
favourably because of this. He was unsuccessful, because although qualifying as
disabled under the Disability Discrimination Act, the reasons for his dismissal
were material and substantial and justified that dismissal. These were namely
his absences, his failure to follow the reporting procedures, failure to
respond to the council’s attempts to accommodate him and the fact that when
dismissed he was unfit for work and it was unclear when he would return.

No duty existed to offer part-time work as a reasonable adjustment in the
circumstances as Callagan had not requested it, had a poor record and at the
time could not work at all. Had part-time work been requested it would have
been arranged.

Callagan unsuccessfully appealed to the EAT. A causal connection between the
discrimination and the justifying circumstances, which must be material and
substantial, had been established. And contrary to a previous and unrelated EAT
decision, the council’s lack of knowledge of Callagan’s disability was not fatal
to the issue of justification.

Care needed when settling claims
Duru v Granada Retail Catering Limited
IDS Brief 697, EAT

Duru claimed unfair dismissal. On 1 December 1999 Granada asked Acas to put
forward a settlement offer of £250. During a telephone call on 13 December,
Duru asked Acas to put the offer in writing, but Acas refused. Duru said that
he was prepared to accept the offer and that he would contact Acas on receipt
of the draft agreement.

That same day, Acas informed Granada of the acceptance and provided a draft
agreement to Granada. Later that day, in a second call, Duru told Acas he
wanted Granada to put the offer in writing before he accepted. Granada refused
– it had already signed and returned the agreement. The tribunal held Duru had
unconditionally accepted the offer during the first call even though the
agreement had not been signed at that time.

Duru successfully appealed to the EAT. The tribunal had failed to consider
when determining whether the agreement was binding the contractual principle of
whether there had been an offer and acceptance of that offer. Granada did not
intend to be bound by Duru’s "acceptance" of the £250 until
satisfactory written terms were agreed. Likewise, it was Duru’s intention that
the terms were subject to written agreement. Although oral agreements through
Acas can be binding, in this case no agreement had been reached.

Sick pay could be reasonable adjustment
London Clubs Management v Hood
IRLR 719 2001, EAT

Hood suffered regularly from "cluster headaches" and was paid
discretionary sick pay for sickness absence during 1998. In 1999, however,
Hood’s absences were unpaid, because due to high sickness levels among all
employees LCM had changed its policy and stopped paying sick pay. Hood argued
this constituted disability discrimination because his sickness absences were
not significantly higher than non-disabled colleagues.

The tribunal concluded LCM’s failure to pay the wages ordinarily due to Hood
was discriminatory because the reason for non-payment was Hood’s absences from
work which related to his disability. LCM’s change of policy had put Hood at a
substantial disadvantage and LCM had failed to comply with its statutory duty
to make a reasonable adjustment which could include the payment of sick pay.

The EAT held the issue in question was the non-payment of sick pay rather
than ordinary wages; the reason that Hood was not paid sick pay was LCM’s new
policy, not Hood’s disability. However, the tribunal had not properly
considered whether Hood was put at a substantial disadvantage and the case was
remitted for rehearing. Interestingly, the EAT commented that the continued payment
of sick pay could constitute a reasonable adjustment.

Relevant date for assessing disability
Cruickshank v Vaw Motorcast Ltd
Unreported, October 2001, EAT

Cruickshank was asthmatic. His condition was exacerbated by exposure to
fumes at work but improved when he was at home. Even though Vaw gave
Cruickshank alternative duties, he was still intermittently exposed and as a
result often absent on sick leave.

In July 1999, Cruickshank was dismissed and unsuccessfully claimed
disability discrimination. The tribunal held he was not suffering from a
disability at the time of the hearing and that his ability to carry out
"normal day-to-day activities" was not substantially affected.

Cruickshank successfully appealed to the EAT. The point at which to evaluate
a disability was the date of the discriminatory act, which in Cruickshank’s
case was his dismissal.

Moreover, when assessing whether Cruickshank’s asthma had a substantial
effect on his ability to carry out "normal day-to-day activities" it
was necessary to consider the effect of the disability in both the home and
work environment. It was irrelevant that Cruickshank’s work environment was a
specialised one which exacerbated his asthma.

The case was remitted so that both issues could be reconsidered.

What is meant by "just and equitable?"
Barlow v London Borough of Southwark
Unreported, September 2001

Barlow claimed race discrimination but submitted her application outside the
prescribed three months’ time limit. The employment tribunal refused to hear
the claim because it did not consider it "just and equitable" to
exercise its discretion to extend the time limit.

Barlow successfully appealed to the EAT. The term "just and
equitable" gave employment tribunals a wide discretion to consider anything
they judged to be relevant. The tribunal should consider the prejudice each
party would suffer as a result of its decision, having regarded all the
circumstances, the length of the delay, and the reasons for it. In Barlow’s
case, the tribunal had failed to consider the prejudice she faced as a result
of its decision – namely being unable to proceed with her claim. The tribunal
also failed to identify the reasons for the delay and miscalculated the length
of the delay. The matter was remitted for reconsideration.

Long-term sickness can frustrate contract
Hogan v Cambridgeshire County Council
IRLB 677 EAT

Between November 1994 and May 1995 Hogan was on sick leave. In August 1995
she was suspended pending investigation into allegations of misconduct but was
signed off work with depression before the disciplinary hearing took place. Her
contractual sick pay ended in May 1996 and in September, without telling the
council, she began a three-year degree course. In February 1997 the council
wrote to Hogan informing her the contract had come to an end by reason of
frustration.

Hogan unsuccessfully claimed unfair dismissal. The tribunal considered a
number of relevant factors to determine whether Hogan’s incapacity was such
that her performance of the contract would either be impossible or radically
different to her original terms (the test for whether a contract has been
frustrated).

Hogan did not hold a key post, her entitlement to sick pay ended in May
1996, she had a long period of service and could be expected to work until
retirement. Moreover, ill-health retirement had been recommended in 1996 and
there was a poor prognosis. Although frustration can occur independently of the
parties’ intentions, commencing the degree course was relevant evidence that the
circumstances had fundamentally changed. The EAT upheld the decision even
though the council had not completed the ill-health termination procedure which
dealt with the frustrating event.

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