Case round up

Our resident experts at Pinsents bring you a comprehensive update on all the
latest decisions that could affect your organisation, and advice on what to do
about them

British Telecommunications Plc v Reid, Court of Appeal
Promotion of harasser triggers award of aggravated damages

* * * Reid was subject to race discrimination by E.  Reid immediately left work and on returning
the next day was subject to a disciplinary investigation for abandoning his
duties. Reid explained his reasons for leaving and an investigation commenced
into E’s alleged conduct which, after 14 months, concluded that E had not made
comments alleged. In the meantime, E had been promoted to a position senior to
that of Reid. Reid was awarded damages for direct race discrimination the sum
of £6,000 for injury to feelings and £2,000 by way of aggravated damages.

The Court of Appeal held that the Tribunal was entitled to award aggravated
damages on the basis that E had not been punished and had been promoted to a
position higher than Reid.

It determined that matters arising out of or following an act of
discrimination are relevant to the measure of injury to feelings. Having to
undergo an unjustifiable investigation was an indignity that exacerbated Reid’s
injury to feelings. The Court of Appeal also considered the tribunal entitled
to take into account stress suffered by Reid in dealing with the aftermath of
the incident and the fact that he had to wait for 14 months for the conclusion
of the investigation. These factors had prolonged the upsetting consequences of
the discriminatory incident.

What you should do

– Ensure that allegations of discrimination or harassment  are thoroughly investigated and dealt with

– Deal carefully with the aftermath of harassment investigations

– Ensure appropriate policies are put in place to handle complaints of

– Make sure that grievances and harassment claims are investigated in a
timely manner.

Pickering v Summer Bridge Doors Limited, EAT
Guidance on disability considerations

* * * * Ms Pickering had rheumatoid arthritis that affected her wrist, hips
and knees.  This was a disability under
the Disability Discrimination Act 1995. She suffered a fall in July 2000 as a
result of weakness in her knee and was fitted with a fixed brace and crutches.
Having briefly returned to work, she found it uncomfortable and returned home.
She remained absent with a doctor’s certificate.

A medical report obtained by the employer concluded that Pickering would have
difficulty in returning to work unless special provision was made, although as
she became less crutch dependent, she would be able to return.

When Pickering indicated a readiness to return, the employer refused to
allow her to return. She was not entitled to receive statutory sick pay.
Pickering resigned and brought successful applications for constructive unfair
dismissal, disability discrimination and unlawful deductions from pay.

On appeal, the EAT upheld the tribunal’s finding that the employer’s treatment
of Pickering was for a reason relating to her disability. The disability was
the reason for the accident and therefore the absence from work.

The EAT also found that the employer had not conducted a proper risk
assessment. Further, the refusal to allow Pickering to return to work while not
being paid, was a fundamental breach of contract entitling her to resign and
claim constructive dismissal.

What you should do

– Beware of the scope of the Disability Discrimination Act. Here the
employer was caught out because the reason for the accident, and therefore the
absence, was disability related

– It is safest to assume that disability discrimination will be an issue if
an employee has any medical condition and that condition is at all relevant to
the circumstances in which action is being considered in relation to that
employee. The crucial thing is to have a good reason for your action so that
any discrimination can be justified

– Make sure that when considering reasonable adjustments you always undertake
a suitable and sufficient risk assessment under the Management of Health and
Safety at Work Regulations 1999. This is an area where tribunals are becoming
increasingly vigilant.

Foster v Somerset County Council, EAT
Difficult employees must still be dealt with reasonably

* * * Foster’s work was unsatisfactory and the council initiated a
performance management procedure. Foster alleged bullying by her line manager.
The council determined that Foster should be redeployed but she failed to
attend meetings to discuss this. Eventually, she was placed on garden leave but
was signed off on sick leave because of work-related stress. She continually
failed to attend meetings at which her position could be discussed and rejected
a formal offer of redeployment.

The council lost patience and informed Foster that her continued refusal to
seek to resolve the issues amounted to a repudiation of her contract of
employment. She was denied the right of appeal on the grounds that she had
"dismissed" herself.

Although an employment tribunal found Foster’s dismissal to be fair, this
was overturned on appeal. The EAT ruled that just because an employee was
difficult and unco-operative, an employer could not dispense with a fair
procedure for dismissal. In particular, Foster should have been given a final
warning that her failure to attend meetings would result in her dismissal. The
fact that Foster was unlikely to have attended such a meeting could not be
taken into account when deciding whether the dismissal was fair.

What you should do

– Whenever you are contemplating dismissal, make sure the employee is warned
of this and offered the right to a hearing before a decision is taken

– Remember that it is safer for the employer to terminate after a fair
procedure than to treat an employee as having dismissed him/herself

– Always give a right to appeal against dismissal. Give notice of this right
in the letter of dismissal.

GMB v Securicor Express Limited, EAT
Collective redundancy consultation not required over the business
reasons for redundancies

* * * In November 2001, Securicor decided to close two branches and make
redundancies at a third branch. The trade union was advised of that decision in
December 2001. The union claimed the employer had failed to comply with the
obligation to collectively consult in relation to large-scale redundancies
under Section 188 TULCRA 1992 and claimed a protective award.

An employment tribunal concluded that the union had not been consulted
before the decision to close the branches had been made and ordered the
employer to pay a protective award. This decision was overturned on appeal.

The EAT concluded that Section 188 of the 1992 Act did not require the
employer to consult with appropriate representatives about the reasons for the redundancy,
in this case whether or not the branch should close. The tribunal’s decision
that the employer had failed to consult at all was overturned. Although the
employer had decided to close two branches, it had not made any decision about
the number of redundancies or who should be dismissed for redundancy.

The tribunal should have considered the adequacy of the consultation with
the trade union in relation to the consequences of the branch closure rather
than the closures themselves. The EAT considered that there had been adequate
consultation and the protective award was set aside.

What you should do

– Treat this case with some caution as there are conflicting EAT decisions
that indicate a need to consult over the reasons underlying the redundancy situation

– In any event, as a matter of best practice, consult employees and their
representatives at an early stage before any firm decisions are taken that make
redundancies inevitable

– Watch out for developments in the implementation of the Information and
Consultation Directive. Companies will soon be required to consult national
works councils on these issues and you ought to be planning now for this huge
change in corporate decision making.

Case of the month
EAT confirms upper age limit on unfair dismissal claims

Secretary of State for Trade and Industry v Rutherford and Bentley, EAT

EAT confirms upper age limit on unfair dismissal claims. The ongoing saga of
the Rutherford case has taken another turn.

* * * * * The Employment Rights Act 1996 prohibits claims for unfair
dismissal and/or a redundancy payment from individuals over the age of 65 (in
default of a normal contractual retirement age). The issue at the centre of
this case is whether those provisions should be disapplied as being
discriminatory and contrary to European law.

The EAT has now held that the rules still apply. Rutherford and Bentley were
both over 65 when their employment was terminated.  The tribunal determined (Case Round Up, October 2002) that the
upper age limits were indirectly discriminatory to men and could not be
objectively justified and that the claims could proceed.

There were two questions for the EAT to decide. The first question was the
pool to be applied in determining whether the upper age limits did indeed have
a discriminatory impact on men. The second question was whether any
discriminatory impact could be objectively justified.

The EAT held that the tribunal had failed to identify the correct pool from
the outset. The correct pool should have been all employees between the ages of
16 and 79. The relevant figure was then the percentage of men and women in that
pool able to satisfy the requirement of being between the ages of 16 and 64.
There was, in fact, a fraction of 1 per cent difference between the proportion
of men and women in the pool who could satisfy that requirement.

This in turn fluctuated in favour of men and women dependent on any given
year that was chosen.  It was therefore
not a quantum leap for the EAT to conclude that in fact the upper age limits
did not have a discriminatory impact on men. 
The EAT was critical of the tribunal for limiting the pool to an older
cross section of the workforce "for whom retirement has some meaning"
as that introduced a subjective element.

The EAT also considered the arguments advanced by the Government to justify
the implementation of the upper age limits. Three main policy justifications
were given: the need to predict and plan for future recruitment needs; the need
to encourage employment among over 65s; and the need to plan for advancement of
more junior employees.

In relation to redundancy payments, the Government’s justification was based
on the reduced expectation of continued employment after pensionable age.

The EAT accepted the Government’s position and concluded that even if the
upper age limits were discriminatory, that could be objectively justified.

The EAT recognised this case was effectively an attempt to bring a claim for
age discrimination within the constraints of a sex discrimination claim.

The EAT also expressed sympathy with the Government’s position that it was
actively engaged in consultation in relation to age discrimination legislation
(to be introduced in 2006) and it would be premature to take a view on the
social policy merits of abandoning the upper age limits until those changes had
been considered in a planned and systematic way.

What you should do

– Clearly, this is a helpful decision for employers wanting to dismiss
employees over the normal retirement age. Employers should check whether there
is a contractual normal retirement age or whether the default provisions apply

– It is clear that the landscape will change with the implementation of age
discrimination legislation.  You should
be actively looking now at what impact this legislation may have on your
workforce when it is introduced in three years

– Until it is known whether the decision will be appealed to the Court of
Appeal it may still be safer to apply the same procedural safeguards as you
would to employees below the upper age limit.

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