Here’s what’s inside this edition of ByteSize Employment:
- Salutary warnings for employers in this month’s round up of employment news
- Hung parliament adds to Brexit uncertainty
- Holiday pay success for employer
- To whom it may concern…
- Redundancy dismissal after cancer treatment absence not discriminatory
- Father wins sex discrimination case
Please click on the links above to view the articles, or download a PDF copy here.
In a recent case, an employment tribunal awarded a woman compensation in excess of £25,000 for a pregnancy related dismissal. Having being told that her one year contract would be extended for a further year, the employee was subsequently dismissed after notifying her employer of her pregnancy.
Despite the employer arguing that she was dismissed after the expiry of her fixed term contract and for reasons of redundancy, the tribunal found the explanation unconvincing and that the dismissal was a serious act of discrimination.
The finding demonstrates that a tribunal will consider and weigh up all relevant facts in such cases. If the decision to dismiss or not to renew employment is in any way connected with pregnancy or maternity, it will amount to unlawful discrimination and automatically unfair dismissal.
Daniella Lewandowski v the Bradford District Apprenticeship Training Agency
In another case, an employee was awarded £182,000 for age discrimination after it was found that his employer had tried to force him to retire against his will. The employee, then aged 67, was eventually dismissed for reasons relating to conduct but the tribunal found that management ‘trumped up charges against him in what can only be described as a threatening manner’.
The employee had worked for the company for 16 years and had no desire to retire. After he had gone off sick following a hostile meeting, the company commissioned a medical report but then failed to act on the recommendations.
The case demonstrates that where an employee has indicated they do not wish to retire, the employer will need to have clear non-discriminatory reasons for dismissal to avoid a finding of age discrimination.
Getting it wrong can have expensive consequences.
Peters v Rock Chemicals Ltd
Employment law measures to be brought in as a result of the Brexit negotiations may be on the back burner now that the UK has elected a hung parliament. The result adds to the uncertainty as to whether the provisions in the Conservative manifesto, including greater protection for workers in the gig economy and giving workers the right to request time off for training, will now be implemented.
In the latest of the long series of decisions on holiday pay under the case of Fulton v Bear Scotland, the Employment Appeal Tribunal has upheld one aspect of the original employment tribunal decision – a break of more than three months between unlawful deductions from wages breaks the series.
This means that the tribunal is prevented from considering claims relating to earlier underpayments which occured more than three months previously. It was clear from the case that the series of deductions must relate to the same matter and occur within three months of each other. If the claimants cannot satisfy this requirement, their claims cannot proceed.
Most employers are aware that care has to be taken when providing references for employees and ex-employees. This has been highlighted by a recent case which found that an employee had been discriminated against by the giving of a reference which mentioned his sickness absence.
The tribunal found that the amount of sickness absence had been substantially overestimated and that nothing positive had been said about his performance, in spite of evidence proven in the tribunal which was not challenged by the employer. This was found to amount to a detriment and created a false and misleading impression of his successful eight year career. Limiting comment to confirmation of the dates of employment and the role undertaken would avoid such risk.
Mefful v Citizens Advice Merton and Lambeth Limited
The EAT has found that a dismissal for redundancy which followed a two month absence for a cancer treatment was not discriminatory under s15 of the Equality Act 2010. The facts of this case were very specific and employers will need to be wary of dismissals in similar circumstances.
In this case the employee happened to have two months away from work at a time when the employer had identified that cost savings had to be made. The period of his absence allowed the employer to identify that it was possible to reallocate his duties to the remaining workforce and after due consultation, and following a fair procedure, the employee was made redundant.
All of his claims were rejected and the tribunal reviewed the leading authorities on the legislation, which established that there is a two stage test for a finding of discrimination in these circumstances. The first is that there must be something arising in consequence of the disability. Secondly, that the unfavourable treatment must be in consequence of that ‘something’.
In this case, the absence was the factor but it was not the cause of his dismissal. It was merely the opportunity for the employer to observe the ability to manage without him.
Charlesworth v Dransfields Engineering Services Ltd
In a recently reported case, a father succeeded in arguing that the failure to pay him enhanced shared parental pay at the level which his wife would have received amounted to sex discrimination.
His wife was advised to return to work early after suffering from post natal depression. The employer’s policy provided for 14 weeks enhanced maternity pay but the father was only entitled to two weeks full pay and the remainder at the statutory rate.
In the employment tribunal hearing, he argued that the effect of the policy was to remove the choice for the parents to decide which one would take on the role of primary carer. The tribunal found that this choice should be free of ‘generalised assumptions’ that the mother is always best placed to do this and to receive full pay.
In a finding in favour of the claimant’s case, the tribunal accepted that men are being encouraged to take on a greater role in caring for their babies. The key point to take from this case is that if enhanced maternity pay is being given to mothers, fathers will be likely to have a right to a similar level of shared parental pay.
Ali v Capital Customer Management Ltd
Posted on June 12, 2017