1. Sparks & Ors v Department for Transport

Court of Appeal ("CA") judgment affirming that attendance management provisions contained within a staff handbook were incorporated into contracts of employment.

Facts

The Claimants were employees of different agencies under the umbrella of the Department for Transport ("DfT"). A staff handbook, applicable to all such employees, allowed each agency to adopt its own terms and conditions relating to leave, attendance and discipline. The relevant provisions concerning attendance management were materially similar across the agencies, but varied in respect of the absence "trigger point" before a formal procedure would be initiated (between 8-21 days). They were included within "Part A" of the handbook, the terms of which were expressly stated to be incorporated as contractual terms where apt to do so.

In July 2012, and following unsuccessful consultation with trade unions, the DfT announced that a stricter, standardised attendance management procedure (i.e. with a more demanding "trigger point") would be unilaterally introduced across all agencies. As a result, the Claimants sought a declaration on the terms of their contracts.

The High Court held that the "Part A" attendance management provisions could not be unilaterally varied as they had been incorporated into the employees' contracts. It considered that the whole of Part A was intended to be contractually binding (unlike Part B which was mere non-contractual guidance) and since the relevant provisions were sufficiently clear and precise, they were "apt for incorporation". It also noted that the variation was potentially detrimental to employees and thus was not a "permitted" unilateral change under the terms of the handbook. The DfT appealed.

Held

The CA dismissed the appeal, confirming that the attendance management provisions were contractual and that they could therefore only be amended in accordance with the contract terms or by consensus. 

Comment

The CA confirmed that the question of whether a provision is incorporated into a contract will turn on its precise facts. However, this decision serves as a useful reminder to employers that care should be taken when designating contractual status to policy/handbook terms. Adopting separate and explicitly non-contractual documentation is desirable to avoid employee allegations of technical breach and to facilitate future amendments.

  1. Nayak v Royal Mail Group Limited

Employment Appeal Tribunal decision stating that an employer's genuine and reasonable belief that an employee no longer had the right to lawfully work in the UK was capable of being a fair reason for dismissal for "some other substantial reason" ("SOSR").

Facts

The Claimant was employed pursuant to a number of different visa arrangements. Before the expiry of his Tier 1 (Post Study Work) visa, the Claimant made an application for a Tier 4 (Student) visa in order to attend a course of study in September 2010. The Claimant's Tier 1 visa and its terms (including the right to work) were "statutorily extended" until the Tier 4 application was decided by the Home Office. Owing to various factors – including an appeal against an initial refusal – it took the Home Office some time to reach a decision.

The employer's policy – acknowledged by the EAT to be a "reasonable" one - was to carry out regular six month checks on employees with visas to ensure that they maintained the right to work. Over a period spanning a number of years, the employer undertook a number of checks with both the Claimant and the Home Office to confirm the Claimant still had the right to work.

The employer made more extensive checks in March and April 2014 and the Claimant was warned that he may be dismissed if he failed to provide updated evidence of his right to work. At a meeting on 8 May 2014, the Claimant failed to provide the required documentation and the employer concluded that it had taken all reasonable steps to confirm the position. The Claimant was dismissed on 9 May 2014, with the employer relying on illegality or SOSR as the potentially fair reasons for dismissal. The Claimant argued that he did in fact have a right to work and brought a claim for unfair dismissal.

Held

The EAT upheld the Employment Tribunal's decision that the Claimant had been fairly dismissed. Although the Claimant may have had the right to work in the UK (such that he could not have been fairly dismissed by reason of illegality), the employer was entitled to rely on SOSR because, based on the evidence available at the date of dismissal, the employer had a legitimate and reasonable belief that the Claimant had no right to work.

Comment

The decision highlights that an employer needs only a reasonable and genuine belief in a relevant set of circumstances to justify a dismissal on SOSR grounds; it is not necessary to have actual proof or knowledge. However, the opposite is true where an employer dismisses on the grounds of a "contravention of a duty or restriction imposed by an enactment"(illegality), where actual knowledge of the breach of statutory enactment is required. It is worth noting that the employer in this case had undertaken an extensive fact finding exercise in the face of little/no co-operation from the Claimant. Companies will, therefore, need to ensure that they follow detailed and robust processes before reaching a decision in order to demonstrate that any belief that an employee does not have the right to work is reasonable and genuine.

  1. Private Medicine Intermediaries Ltd & Ors v Hodkinson 

Employment Appeal Tribunal decision holding that an employee was entitled to treat herself as constructively dismissed where she resigned in response to her employer raising trivial and non-urgent written concerns with her while she was on sick leave for work-related stress.

Facts

Accepting that the Claimant's ("H") thyroid dysfunction and cardiac arrhythmia made her disabled for the purposes of the Equality Act 2010 ("EqA"), the employer made a number of adjustments upon her return from a period of sick leave. Notwithstanding these, H went off sick again one month later due to work related depression and anxiety. She felt bullied and intimidated by certain members of the management and was unhappy with her treatment since returning to work. When the employer asked H if she wished to raise a grievance, H replied stating that "she was in no fit state to communicate without breaking down"

During this second absence, the employer sent H a letter outlining six areas of concern that it wanted to discuss. None were serious or urgent. H resigned as a result, citing a breakdown in trust and confidence and subsequently brought claims of constructive unfair dismissal, along with multiple claims under the EqA (including harassment, failure to make reasonable adjustments and discrimination arising from disability).

The ET held that although the employer had made reasonable adjustments following the first period of absence and had not bullied H, the letter had been an act of disability-related harassment and a fundamental breach of her contract so as to justify her claim of constructive dismissal. The employer appealed.

Held

The EAT dismissed the appeal against the finding of constructive unfair dismissal. It considered that the letter was written to an employee who was known to be ill and raised a number of trivial issues, some of which had already been dealt with.

However, the EAT allowed the appeal in respect of the claims of disability-related harassment. The ET had not established sufficient facts to show that the relevant EqA requirements had been fulfilled, namely that the conduct "related to" H's disability and that its "purpose or effect" had been to create an intimidating, hostile, degrading, humiliating or offensive environment for her.

Comment

This case highlights the centrality of the duty of trust and confidence within the employment relationship. It suggests that tribunals can readily accept breaches of this implied term to have occurred, even where (as in this case) the employer's conduct and beliefs are genuine and the employee is recognised to be over-sensitive and liable to misinterpret employer actions. When dealing with aggrieved employees who are on sick leave, employers should strive to address their immediate concerns before turning to broader workplace issues (particularly when these are non-urgent). Where serious matters require urgent attention during a period of employee sick leave, these should be progressed with caution.

  1. Gallop v Newport City Council

Employment Appeal Tribunal case stating that in relation to direct disability discrimination, knowledge of an employee's disability could not be imputed from one employee to a disciplinary decision-maker.

Facts

This is the latest judgment in a long-running case. Mr Gallop was an employee of Newport City Council ("NCC") until his dismissal in May 2008. During that employment, Mr Gallop was signed off sick, for various periods, with "stress-related symptoms". NCC's occupational health advisors did not consider that Mr Gallop had a disability (for the purposes of the Disability Discrimination Act 1995, as was in force at the time). Later, allegations of bullying were made against Mr Gallop and he was suspended and then dismissed.

Mr Gallop brought a claim for direct disability discrimination. The ET, and subsequently the EAT, dismissed the claim, but the Court of Appeal overturned those decisions, holding that NCC had not asked the correct questions of its occupational health advisors and had been wrong to accept their opinion that Mr Gallop did not have a disability. The matter was remitted back to the ET, who again dismissed the discrimination claim. Mr Gallop appealed to the EAT, arguing that the fact that one employee of NCC (namely the occupational health advisor) had knowledge of his disability meant that this knowledge was imputed to all employees of NCC (including the employee who made the decision to dismiss him). This was important because Mr Gallop needed to show that the employee who dismissed him was aware of his disability in order to prove that the employee's decision was motivated by discrimination.

Held

The appeal was dismissed. The EAT applied the Court of Appeal's reasoning in CLFIS (UK) Ltd v Reynolds [2015] IRLR 562 which established that, in the context of direct discrimination, the tribunal's focus should be on the knowledge and state of mind of the employee alleged to have committed the act(s) complained of.  Therefore, knowledge of Mr Gallop's disability was not imputed from the occupational health advisor to the employee who dismissed him, and on the facts, the EAT found no evidence that the employee who dismissed Mr Gallop did so because of Mr Gallop's disability.

Comment

This judgment is a logical application of the Court of Appeal's reasoning in Reynolds. Decision makers in disciplinary processes should continue to note the facts of the matter as they are aware of them - as a contemporaneous record of their state of knowledge (although this may not necessarily be conclusive should the matter go to a tribunal).

 

  1. Garamukanwa v Solent NHS Trust

Employment Appeal Tribunal decision confirming that an employee's right to respect for their"private and family life, home and correspondence" under Article 8 ECHR was not engaged where an employer used material seized and provided by the police as part of their disciplinary procedure.

Facts

Mr Garamukanwa ("G") was employed as a clinical manager and had suspected that a fellow employee ("M"), with whom he had previously been in a relationship, had begun a new relationship with another colleague ("S"). G had emailed both M and S threatening to inform their line manager, before an anonymous "vendetta" was instigated against the pair using both Facebook and "malicious emails" (which were sent to the management team). M felt threatened and approached the police after a particularly unpleasant email was sent to large numbers of staff.

G was arrested (although not subsequently charged) and summarily dismissed for gross misconduct following internal investigation and disciplinary procedures. In making this decision, the employer's appointed investigator had relied upon incriminating photographs obtained and passed on by the police, who had specifically confirmed that this evidence could be used for internal disciplinary purposes. G brought numerous Tribunal claims, arguing that the employer had:

  1. breached his Article 8 ECHR right by examining matters that related purely or essentially to his private life; and
  2. used evidence in relation to such matters to justify his dismissal. However, the ET did not agree and held that Article 8 was not engaged in this case.

Held

The EAT dismissed his appeal, holding that although

  1. the aspects of "private life" capable of Article 8 ECHR protection were wide and;
  2. whether a "reasonable expectation of privacy" exists should always be judged on a case-by-case basis, G could have no such expectation in this case.

This was because the relevant matters, although relating to a personal relationship, were"brought into the workplace by [G] himself…as giving rise to work related issues". The relevant emails were sent to work addresses, touched on workplace issues, distressed others to whom the employer owed a duty of care and adversely affected the latter's working relationship with G. G had also not objected to the use of the material during the employer's internal procedures and had continued to send emails after becoming aware of M's distress, at which point he "must have 'expected' that she would complain of feeling harassed by his ongoing correspondence with her."

Comment

This is the latest in a growing body of case law that suggests the Courts are reluctant to invoke Article 8 ECHR rights in the context of an employment relationship. However, these cases always turn on the specific facts and employers should not assume that Article 8 rights will never be engaged. In addition, despite the outcome in this instance, employers should be cautious about taking decisions based on material received from external authorities. It is noteworthy, for example, that the EAT failed to consider the legitimacy of the police action in passing documents from their investigation on to the employer.

  1. Morgan v Royal Mencap Society

Employment Appeal Tribunal decision on what constitutes "in the public interest" in order for a disclosure to be protected and thus bring an employee within the ambit of whistleblower protection.

Facts

The Claimant complained to her employer about working in cramped conditions that were adversely affecting her knee, which she had previously injured. She later resigned after her issues were not addressed and brought a number of claims, including that she had been automatically (and constructively) unfairly dismissed and subjected to detriments, on the basis that such complaints about health and safety were protected disclosures.

The Claimant's case was struck out at a Preliminary Hearing on the basis that it had no reasonable prospect of success. The Judge observed that, although they were "of high order of relevance for the Claimant", disclosures about working conditions could not be matters of public interest in the Claimant's reasonable belief so as to constitute protected disclosures. The Claimant appealed to the EAT.

Held

The EAT upheld the appeal on the grounds that it was reasonably arguable that an employee may - even where they are the principal person affected – consider health and safety complaints to be made in the wider interests of employees generally. The case was remitted back to the Employment Tribunal for the claim to be heard at a substantive hearing.

Comment

This decision is unhelpful for employers. Despite the intentions behind the re-drafting of the legislative test for what constitutes a protected disclosure, it suggests that the law has not changed significantly in practice since an employee's complaint or concern with regard to their own contract/working conditions is still capable of satisfying the public interest test.