Articles | Employment bulletin February 2015

This month we examine the duty to make reasonable adjustments, the potential implications of claiming sick pay, appeals against dismissal and the right to freedom of expression.

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Louise Smyth

Louise Smyth

Duty to make reasonable adjustments

When is the ball in the employee’s court?

Duty to make reasonable adjustments

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In broad terms, an employer has a positive duty to make reasonable adjustments where a disabled employee is put at a substantial disadvantage by their employer’s provision, criterion or practice (PCP).  In a recent case the Employment Appeal Tribunal (EAT) considered the scope of this duty where a disabled employee is absent on long-term sick leave.

The claimant in the case was Miss Doran, an administrative officer at the Department for Work and Pensions (DWP).  Miss Doran became ill in January 2010 and submitted regular sick notes in support of her absence.  The DWP applied a PCP that it would not usually support absence where there was no indication of a return to work within six months.  Miss Doran failed to give any indication of a return within this timeframe and was dismissed in May 2010.  She brought several claims against the DWP, including a claim for failure to make reasonable adjustments such as a phased return to work.

The EAT held that the DWP’s PCP did place Miss Doran at a substantial disadvantage as compared with non-disabled persons.  However, it found that the duty to make reasonable adjustments was not triggered because Miss Doran failed to inform her employer that she was fit to return to work under reasonable adjustments, and there was no medical evidence indicating that she was able to carry out any work.  Although there were deficiencies in its procedures, the DWP had sought medical advice and written to Miss Doran requesting an update and further information on her condition.  The onus was therefore on Miss Doran to raise the issue of adjustments when a return to work became foreseeable.

While the EAT’s decision will provide some comfort for employers, dismissing a disabled employee after haphazard contact risks inviting a claim for both failure to make reasonable adjustments and for disability discrimination.  The legislation in this area does not impose any duty on a disabled person to suggest adjustments, so employers should proceed with caution.  Best practice remains to keep in regular contact with employees on long-term sick leave, to request updates on their prognosis and to pro-actively invite and consider any suggestions for adjustments.

Constructive dismissal

Can claiming sick pay defeat an employee’s claim?

Constructive dismissal

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To establish a claim for constructive dismissal an employee must show a repudiatory breach of contract by the employer, a resignation in response to that breach, and that he or she has not waived the breach by affirming the contract.  In a recent case the Employment Appeal Tribunal (EAT) considered whether an employee had affirmed the contract by accepting sick pay.

The case involved Ms Mari, a systems support analyst at Reuters. Ms Mari had been off sick for 19 months from August 2010 until her resignation in April 2012.  In July 2012 she brought a constructive dismissal claim, alleging that prior to her sick leave she had been demoted and given work well below her expertise.  She also complained of poor treatment by her male colleagues.  Ms Mari argued that her illness had prevented her from resigning any earlier.  Reuters argued that Ms Mari’s delay in resigning and conduct during her absence amounted to affirmation.

In considering whether Ms Mari had affirmed her contract the EAT emphasised that the question is a mixture of law and fact.  It took note of an expert medical report which concluded that she would have found it difficult to raise a complaint during her period of sickness.  It weighed this against a GP’s diagnosis of mild (rather than severe) depression, Ms Mari’s repeated requests to access and use her work email, her acceptance of 39 weeks’ sick pay and her requests to be considered for permanent health insurance.  

The EAT disagreed that Ms Mari’s illness had prevented her from resigning earlier.  While the delay in resigning did not determine the issue by itself, the substantial length of the delay and the fact that Ms Mari had called on Reuters to perform tasks consistent with the continued performance of her contract persuaded the EAT that the contract had been affirmed.

The EAT stressed that a decision on affirmation is always fact sensitive.  On the specific issue of receiving sick pay, it remarked that its significance will vary from case to case.  Where an employee is seriously ill it would be unjust and unrealistic to hold that acceptance of sick pay could amount or contribute to affirmation.

It is clear that employers are not protected against constructive dismissal claims simply because an employee has accepted receipt of sick pay.  However, as in this case, it may be a relevant factor in establishing that they have affirmed the contract.  Constructive dismissal remains a tricky claim for employees to bring, but a prompt resignation in response to a major breach or an ongoing series of breaches will improve their chances of success.

Appeals against dismissal

Is re-instatement automatic if the appeal is successful?

Appeals against dismissal

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When an employer decides to dismiss an employee, it should give the employee the right to appeal and must inform them of any appeal decision.  In a recent case the Employment Appeal Tribunal (EAT) was required to decide whether an employee dismissed prior to a TUPE transfer was automatically re-instated to her role following an appeal process.

The employee, Mrs Salmon, was dismissed for gross misconduct by Castlebeck Care (Castlebeck) on 10 July 2013.  On 4 September 2013, Castlebeck transferred to Danshell Healthcare (Danshell).  Mrs Salmon’s appeal was heard on 17 September 2013 by an HR Director who had TUPE transferred from Castlebeck to Danshell.  The appeal panel deemed the dismissal “unsafe”, but neither expressly decided to reinstate Mrs Salmon nor indicated that she remained employed.  Mrs Salmon brought a claim for unfair dismissal against both Castlebeck and Danshell.

The EAT found that the appeal panel’s decision that the dismissal was unsafe meant Mrs Salmon’s appeal against dismissal had succeeded.  From that moment, Mrs Salmon was automatically reinstated.  There was no requirement for an appeal panel to expressly order reinstatement or to communicate its decision to the employee for this to be the case.  The reinstatement had retrospective effect and Mrs Salmon was to be treated as if she had never been dismissed for both contractual and statutory purposes.  Accordingly, as Mrs Salmon had been employed immediately before the TUPE transfer, she had transferred from Castlebeck to Danshell.  Her claim against Danshell succeeded.

The case demonstrates that when a dismissal is overturned then, in the absence of any contractual provision to the contrary, re-instatement of the employee is automatic and does not need to be communicated.  Employers should therefore ensure that appeal processes are conducted efficiently and that employees are informed of the outcome.

Employers must be especially careful when looking to dismiss an employee shortly before a TUPE transfer.  Ideally an appeal against dismissal should be heard by the ‘outgoing’ employer before the transfer date, while exposure to pre- and post-transfer employment claims should be addressed through appropriate indemnities.

Freedom of expression

Can dismissal breach an employee’s human rights?

Freedom of expression

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Under Article 10 of the European Convention on Human Rights, every person has the right to freedom of expression, including the freedom to impart information and ideas without interference from a public authority.  In a recent case the European Court of Human Rights (Court) considered the interaction of Article 10 with the duties owed by an employee working under a contract of employment.

The case concerned Mr Rubins, a professor and head of department at a state-owned Latvian university, who objected to plans which would see his post abolished after a department merger.  Mr Rubins initially sent emails to the university alleging financial mismanagement, plagiarism and a lack of democracy and accountability in the university’s leadership.  He later proposed settlement terms, threatening to make his concerns public if his terms were rejected.  The university refused to agree to the terms and soon afterwards Mr Rubin’s views were published by the Latvian national news agency.  Mr Rubin was later dismissed for making inappropriate demands, which included elements of blackmail.  After failing to secure a remedy in the Latvian courts, Mr Rubin brought proceedings arguing that his dismissal breached his right to freedom of expression.

The majority of the Court decided that Mr Rubin’s dismissal amounted to a disproportionate interference with his Article 10 rights.  It considered that the issues raised by Mr Rubin were in the public interest and noted that the veracity of his disclosures had not been challenged.

The minority of the Court saw the case as a classic employment dispute.  It found that the domestic court was entitled to find that Mr Rubin had been dismissed not for expressing his opinions but for professional and ethical misconduct.  It concluded that Mr Rubin’s disclosures were not made in the public interest but were a self-serving attempt to preserve his job and/or secure financial compensation.

UK employees already benefit from protection under whistle-blowing legislation, which permits employees to make disclosures in the public interest based on a reasonable belief of wrongdoing, but the Court’s decision in this case demonstrates that additional protection may also be available under Article 10.  In this case the university dismissed Mr Rubin because it determined that his conduct in sending a threatening “settlement email” was unethical and immoral rather than because his disclosures amounted to a breach of confidentiality and/or brought his employer into disrepute (which may have proved safer ground).  Employers would be well advised to include (and regularly update) comprehensive and bespoke confidentiality and whistle-blowing provisions in employment contracts to ensure that all employees are clear in respect of both how they can raise any legitimate concerns and their obligations in respect of confidential information.