ABG Employment Newsletter – October 2011

Increase in qualifying period for unfair dismissal and tribunal fees

Following the Government’s consultation exercise in January 2011 on reforming Employment Tribunal procedure, it has now announced that the qualifying period for employees to be able to bring unfair dismissal claims will be increased from one year to two years as from 6 April 2012. In addition the Government proposes to introduce fees for lodging Employment Tribunal claims as a way of tackling vexatious claims and reducing the cost to the public purse. It has said this change will come into force in April 2013.

Unfair dismissal for working in second job while on sick leave

In the case of Perry -v- Imperial College Healthcare NHS Trust the EAT has ruled that an employee on sick leave was unfairly dismissed for misconduct when she was dismissed for continuing to work in her second part-time job, for which she was still medically fit, without permission from the first employer.

Miss Perry worked as a Community Midwife for Imperial. The job involved cycling to patients’ homes and sometimes climbing stairs in high-rise buildings. She was signed off work due to a knee condition, but carried on with a second part-time job with Ealing PCT. This job was desk based and involved working only on Monday evenings and was not affected by her knee condition.

Following a disciplinary hearing Imperial dismissed her on the grounds that she had defrauded it of a large sum of money by claiming sick pay whilst undertaking paid work for Ealing. It refused to consider a letter from her GP that, whilst she was unfit for her Imperial duties, she was still fit for the Ealing job which did not put any stress on her knee.

On appeal Imperial changed tack, relying on a clause in her contract which prevented her from working elsewhere during sick leave without the permission of her manager. It said that, had she mentioned that she was fit for desk based work, it could have redeployed her instead of putting her on sick leave. Miss Perry argued she thought the clause only applied to someone taking on a new job during sick leave.

Although an Employment Tribunal dismissed her unfair dismissal claim, on appeal the EAT overturned this and ruled that the dismissal was unfair, although compensation was reduced by 30% for contributory fault.

The EAT said that Imperial’s original decision to dismiss for fraud was unfair because there is nothing to stop an employee claiming sick pay whilst medically unfit for one job and carrying on working in another job for which she is still fit.

As to the clause in her contract requiring her to seek permission for other work during sick leave, the EAT said this was not designed to provide Imperial with a redeployment option, but was aimed at ensuring that the second job was consistent with the employee being unfit for duties in their first job and would not delay their eventual return to work. The EAT ruled that there was no reason for Imperial to be concerned about either of these issues and on appeal they were simply trying to salvage what had been a misconceived decision to dismiss at the original disciplinary hearing. In these circumstances the dismissal was unfair because it was outside the range of reasonable sanctions.

No self-dismissal

In the case of Zulhayir -v- JJ Food Service Ltd the EAT has ruled that there is no such thing as self-dismissal and that an employee had not dismissed himself by failing to inform his employer of his new address while he was on long-term sick leave.

The employee had been on sick leave for 18 months. The employers sent him a letter saying they had tried to contact him but were unsuccessful and asked him to confirm whether he still wanted to work for them. The letter stated that if he did not provide that confirmation within 7 days, his employment would be terminated by his own volition.

In fact the employee had moved, but had not informed the employers of his new address, and the letter was returned to the employers who made no further attempt to contact him.

Some 3 years later the letter came to the employee’s attention when it was disclosed to him after he had brought a personal injury claim against the employers. He then commenced proceedings for unfair dismissal in the Employment Tribunal. The Tribunal struck out his claim on the basis that his failure to inform the employers of his change of address or arrange for his mail to be forwarded to him at his new address amounted to an implied termination of his employment.

However, on appeal the EAT overturned this ruling on the basis that, although the employee’s actions in failing to keep in touch with the employer were a breach of contract, that did not terminate his employment or amount to a resignation. The EAT said that, as the employers had made no further attempt to contact the employee, the result was that neither party had taken steps to terminate the employment until the employer’s letter had reached the employee 3 years later. The letter then had the effect of terminating the employment by the employer’s actions and it was not a self-dismissal.

This case highlights the dangers of employers trying to rely on a concept of self-dismissal in circumstances like this. Employers should follow a fair and reasonable process to bring the employment to an end so as to ensure that the dismissal amounts to a fair dismissal.

Reasonable adjustments to help employee return to work

In the case of Salford NHS Primary Care Trust -v- Smith the EAT said that the employer was not under a duty to offer a disabled employee on long-term sick leave a career break by way of a reasonable adjustment or to make suggestions to her GP as to possible rehabilitation work arrangements. The EAT expressed surprise at the suggestion of a career break as that was something that could put the employee at a disadvantage in that at the time she was on sick leave at half pay, whereas a career break would have been unpaid and could have prejudiced her future chances of taking ill-health retirement.

The employee was on long-term sick leave and discussions took place about the possibility of a phased return to work. The Occupational Health Adviser suggested as an alternative the option of a career break to allow her the breathing space she needed to recover from chronic fatigue syndrome.

During her sickness absence her role had ceased to exist. Discussions took place about other possible posts for her, but she rejected the other posts for a variety of reasons. Eventually the employers said that they would have to consider other options including termination, at which point the employee resigned and brought proceedings for constructive dismissal and failure to make reasonable adjustments.

The Tribunal upheld her claims saying that it would have been a reasonable adjustment to offer a career break and she was constructively dismissed as trust and confidence had broken down. However, the EAT overturned this decision and stressed that reasonable adjustments are primarily concerned with enabling a disabled person to remain in work or to return to work. Further, the employers were not under a duty to offer light duties as a form of rehabilitation. Although a phased return to work may be a reasonable adjustment, that is where the work involved is productive work – rehabilitation work is not required as a reasonable adjustment.

Employee references

Generally speaking employers have no duty to provide their employees or former employees with a reference. However, if they do provide one, they must take care to ensure that the reference is true, accurate and fair. Fairness means that it should not be misleading overall.

In the recent case of Jackson -v- Liverpool City Council the Council received a reference request for one of its former employees, a social worker. In responding they did not answer two questions: would they re-employ him and was there any reason why the new employer should not employ him? In answer to a question about his weaknesses they indicated that there had been some issues as regards record keeping but that he had left employment before any formal improvement plan had been instigated.

After he had been turned down for the new job the employee brought a claim against the Council claiming damages for having provided an inaccurate reference. The High Court ruled that the reference was true and accurate, but not fair. However, this decision has been overturned by the Court of Appeal who considered that the reference was not only true and accurate but also fair. The Council had made it clear that the allegations regarding record keeping had not been investigated and could not be criticised for providing a reference which referred to allegations and made it clear that those allegations had not been investigated. The Court of Appeal could not see how the Council could have honestly answered the questions in the reference without referring to the allegations.

Unfair dismissal for derogatory Facebook comments

In the case of Whitham -v- Club 24 Ltd a Tribunal has ruled that an employee was unfairly dismissed for making derogatory comments about her workplace on Facebook because those comments were relatively minor. In her Facebook account she said “I think I work in a nursery and I do not mean working with plants”.

Two of her colleagues took exception to this and reported the matter to her line manager. Following a disciplinary hearing she was dismissed for misconduct despite having sent a contrite letter of apology.

The main basis for her dismissal was that her comments could have damaged the company’s relationship with a key client. However, the Tribunal considered that there was nothing to suggest that the relationship with the key client had been harmed or jeopardised. The company had failed to take into account her exemplary employment record and mitigating circumstances and in these circumstances considered that the dismissal was unfair. Nevertheless her compensatory award was reduced by 20% for contributory fault.

This case demonstrates that it is important not to have a kneejerk reaction to Facebook comments. Before any decision is made there should be a thorough investigation and, if dismissal ensues, the specific reasons for that decision should be carefully documented.

Directors’ liability for discrimination

In case of Bungay & another -v- Saini & others the EAT has ruled that two company directors were acting as agents of the company for the purposes of discrimination claims brought by former employees under the Religion or Belief Regulations. This had serious consequences for the individual directors in that they were held to be jointly and severally liable with the company for awards of both compensation and aggravated damages. This was because of the manner in which they had contributed to the damage the employees had suffered, including by making malicious complaints to the police.

As noted, this ruling has significant consequences for the two individuals because the company had gone into liquidation and was unable to pay the damages awarded. In these circumstances the claimants can seek to enforce their awards against the directors personally.

The comments in this note are of a general nature only. Full advice should be sought on any specific problems.

Christopher Gigg 
[email protected] 
+44 (0)115 934 3310

Kathryn Meir
[email protected]
+44 (0)115 934 3308