Case law updates

COVID-19 – redundancy and furlough: There have been two non-binding tribunal decisions this month considering the tricky issue of whether the existence of the Coronavirus Job Retention Scheme (CJRS) renders a COVID-19-related redundancy unfair. In Mhindurwa v. Lovingangels Care, the judge found that the claimant had been unfairly dismissed when her employer had failed to consider furlough as an alternative to redundancy. In contrast, in Handley v. Tatenhill Aviation, the judge was of the view that the existence of the CJRS did not necessarily render any redundancy dismissal unfair. Whilst seemingly contradictory decisions, the facts of both cases were relevant; whereas the employer in the first claim had failed to give furlough any serious consideration, the employer in the second case had initially furloughed the claimant and could show wider business and financial reasons to justify proceeding with the redundancy. This issue is largely academic now given that the CJRS is due to close at the end of September, but it may be relevant for employers who are currently undergoing redundancy exercises, acting as a reminder that furlough should be actively considered as an alternative to redundancy and that in the absence of a reasonable explanation, the ongoing availability of furlough (albeit now limited) may render the dismissal unfair.

Disability discrimination – knowledge: A recent Employment Appeal Tribunal (EAT) decision provides a helpful reminder that as well as meeting the statutory definition of having a ‘disability’, an employer must know or ought reasonably to know of that disability. The claimant had not disclosed any medical impairment, and the medical report (which in any event is to provide evidence rather than a determination on the issue) did not support the definition being met. The case also highlights that it is the effect of the impairment, and not the impairment itself, which must be ‘long term’, and that this must be judged at the time of the alleged discrimination. [J v. DLA Piper]

Disability discrimination – reasonable adjustments: Reiterating established principles that it will rarely be a reasonable adjustment to pay an employee for a role they are not performing, a disabled claimant was unable to claim pay protection when she moved to an alternative lower-paid role due to her condition. While her previous higher pay had been protected on a temporary basis, it was not a reasonable adjustment for this to continue permanently. [Aleem v. E-Act Academy]

Disability discrimination: The EAT has held that an employer’s absence management policy which included discretion to redeploy an employee as an alternative to dismissal where there were concerns about levels of attendance nevertheless placed a disabled employee at a significant disadvantage as they remained at greater risk of dismissal where discretion to redeploy was not exercised. Employers with similar policies should proceed with caution, but they can avoid liability where (as was the case in this matter) they take all reasonable steps and adjustments to avoid any disadvantage arising. [Martin v. Swansea]

Discrimination – genuine occupational requirements (GORs): The existence of a justifiable GOR for a particular role can be a defence to discrimination, although the tribunal held on the facts of the case that a requirement for an actress not to be visibly pregnant did not amount to a GOR – although accepted that the character should not be visibly pregnant, it was possible to film in such a way as to conceal her pregnancy. Interestingly, the GOR provisions of the Equality Act 2010 refer to a requirement for a person to have a particular protected characteristic, rather than not to have one – this case involved the latter, but the legal interpretation issue was not considered by the tribunal on this occasion. Although specific to the circumstances, it is a reminder that justifying a GOR can be difficult for employers. [Kinlay v Bronte Film and Television]

Insured benefits: The EAT determined that an employer was liable to pay permanent health insurance payments to an employee despite these not being covered fully by insurance by the time payments were due. Following a transfer under the Transfer of Undertakings (Protection of Employment) Regulations 1996 (TUPE), the new employer’s insurance policy did not provide the same level of cover as the former employer and, when the claimant subsequently was on long term sickness absence, they limited payments based on the extent they could recover sums under their policy. The claimant succeeded with a claim for unlawful deduction from wages – the employee’s contractual entitlement was clear and not limited with reference to what could be recovered. This is an important reminder for employers to carefully word contractual provisions around insured benefits, and that in cases of a TUPE transfer, for transferees to carefully check whether any transferring insured benefits are covered by their existing insurance. [Amdoc Systems v. Langton]

Post-termination restrictions: An employer was unsuccessful with an application for interim relief for alleged breach of restrictive covenants when it failed to establish sufficient evidence that the employee had improperly accessed a database to extract confidential information, and in circumstances where there was a challenge to the technical evidence about what had been taken. It was also relevant that the employee had been on furlough for approximately eight months prior to his resignation, significantly limiting his work activities and contacts, and thereby limiting the scope of his restrictions. Although not changing the law in this area, the case acts as a reminder that employers wishing to enforce restrictive covenants should carefully consider the strength of their evidence, and the overall circumstances, before proceeding. [Celebrity Speakers v. Daniel]

Privilege: An EAT decision has found that email communications between an HR consultant and the company were covered by litigation privilege, despite indicating a clear intention to dismiss the claimant ahead of the disciplinary process. In this case, the employer’s position was assisted by not explicitly seeking or receiving advice on how to act unlawfully, and it was considered that the content of the communication fell within what was expected and usual to rightfully remain privileged. However, privilege can be a tricky area, and whilst this decision is reassuring for employers, there are some academic concerns that restrict confidence in relying on it. Communications with non-lawyers are not necessarily protected (and so may become disclosable), and communications or documentation that further unlawfulness can, depending on the circumstances, cause privilege to be lost. Employers should therefore be careful when seeking advice and should not necessarily assume that all communications and documentation are covered by privilege. [Abbeyfield (Maidenhead) v. Hart]

Unfair dismissal – appeals: The EAT has found that in circumstances where the claimant was dismissed for a breakdown of relationships in the small organisation where he had previously been CEO but had stepped down (albeit remaining a director and employee), it was not unfair for him to be denied a right of appeal. On the facts, the claimant was considered to be responsible for the breakdown in relations, and showed no remorse, with the EAT satisfied that any appeal process would have been futile. Although an appeal process would ordinarily be an important part of a fair dismissal process, this case is a rare example of circumstances where the refusal of an appeal did not render the process or dismissal unfair. [Moore v. Phoenix Product Development]

Unfair dismissal – prior warnings: A claimant who had been subject to ongoing performance management, and who was on a final written warning for failing to meet his targets, was not unfairly dismissed on capability grounds. It was not for the tribunal to ‘look behind’ the final written warning unless it was ‘manifestly inappropriate’, which it was not in this case, and so there was no need for the tribunal to consider the reasonableness or appropriateness of the warnings when assessing the fairness of the dismissal. The same principle applies in conduct cases. Nonetheless, employers should be particularly mindful in situations where the capability or conduct leading to the dismissal is different or unrelated to the circumstances that gave rise to the prior warning.