ABG Employment Newsletter – March 2013

Application of absence management policy to disabled employee

The EAT has confirmed that an employer is entitled to apply its short-term absence policy to a disabled employee and that, in the case in question, the employer was not required to exempt the employee from the policy by way of a reasonable adjustment.

Throughout his employment the employee had a poor record of attendance and had intermittent absences due to back problems and a stress related condition following a road traffic accident. He suffered from anxiety and panic attacks.

The employer applied its short-term absence policy vigorously and began disciplinary proceedings against the employee. He was issued with a first written warning for his short-term absences and the employer also commenced its long-term absence procedure against him. Occupational Health suggested a phased return to work, but the employee failed to complete a Stress at Work questionnaire. At a final stage meeting under the long-term absence procedure the employee’s line manager took the view that his continued absence was unfair to colleagues, the department was under pressure and there was a possibility that he might not return to work as no date had been set. The employee was dismissed.

The employee’s complaint that the employer was guilty of disability discrimination by failing to make reasonable adjustments was rejected by the Employment Tribunal. The employee argued that he should have been exempted from the short-term absence policy in that, as a disabled employee, he was more likely to have absences and therefore be disciplined, but the EAT confirmed that the employer had not been required to make this adjustment in this particular case.

The Employment Tribunal also rejected the employee’s unfair dismissal claim. Although the employer had omitted the fourth stage of the long-term absence policy, this was not unfair because the employee had been given a fair opportunity to put forward his case throughout the rest of the four stage process. Moreover, although Occupational Health had recommended a phased return, the employer had not acted prematurely by dismissing the employee before the suggested return date. The Tribunal commented that Occupational Health are frequently positive and optimistic as this is what employees suffering from stress or depression usually need to hear. The Occupational Health report probably envisaged a further review rather than an actual return to work. The employee himself had been pessimistic about his prospects of returning to work and had put forward no suggestions for returning or for redeployment despite having had ample opportunity to do so. The EAT agreed with this ruling noting that the employee had a very poor absence record, having been absent for 100 days in the previous 8 months.

Whistleblowing protection after end of employment

The EAT has ruled that a public interest disclosure made after employment has terminated can be a protected disclosure under the whistleblowing provisions of the Employment Rights Act.

In previous case law, the EAT had said that a detriment imposed after termination of employment in respect of a public interest disclosure made during employment can give rise to a whistleblowing claim. However, there had been no case deciding whether a whistleblowing claim can be made where the disclosure itself is made after the end of the employment.

In this new case the employee had made a public interest disclosure about his former employers after he had left their employment. The employers then subjected him to a detriment by making allegations of forgery and dishonesty to the employee’s regulatory authority.

Although a Tribunal ruled that the disclosure post-termination could not be a protected disclosure, the EAT has overturned this decision. The EAT said it had no hesitation in deciding that an employee can make a protected whistleblowing disclosure after he has left his employment.

This case confirms that Tribunals should give a wide interpretation to the law on protected public interest disclosures and that employers are at risk of a whistleblowing claim even if the disclosure takes place after the employee has left.

Compromise agreements often contain post-termination confidentiality clauses. However, it should be noted that such clauses are not effective to preclude employees from making a protected disclosure.

Profane comment did not constitute religious harassment

A Catholic employee brought a claim of religious harassment after his line manager shouted a comment across the room which contained an expletive about the Pope. Whilst they were working on a news story about the Pope, a newspaper reporter’s line manager shouted out a question “Can anybody tell me what’s happening to the fucking Pope?”

The employee complained that, as a Catholic, he found the comment offensive and blasphemous and said he felt intimidated and frightened. When he brought a claim of religious harassment, the Tribunal accepted that he had felt his dignity to be violated and that an adverse environment had been created for harassment purposes, but ruled that the comment did not amount to religious harassment as his reaction to the manager’s comment was not reasonable. The manager’s comment was not ill-intentioned or anti-Catholic and, in a perfect world, he would not have used an expletive in a sentence about the Pope. However, it was pointed out that people are not perfect and sometimes use bad language thoughtlessly. A reasonable person would have understood that and made allowances for it.

This case confirms that things which are said or done which are trivial or transitory are unlikely to amount to harassment, particularly if it is clear that no offence was intended. Employment Tribunals are wary of encouraging a culture of hypersensitivity or imposing legal liability for each and every unfortunate comment that is made in the workplace.

Validity of previous warnings in dismissal cases

The Court of Appeal has followed and endorsed the ruling in an earlier Scottish case decided 30 years ago that, when deciding whether to dismiss an employee, it is legitimate for the employer to rely on a final written warning provided it was issued in good faith. An Employment Tribunal should accept the validity of previous warnings provided they were issued on prima facie grounds and they were not manifestly inappropriate.

In this case the employee had been issued with a final written warning for misconduct. Initially she appealed against the warning, but later withdrew her appeal following union advice that the sanction might be increased to dismissal.

Following a further offence she was dismissed and the employer took into account the final written warning. The employer would not have dismissed her for her latest offence, but did so because of the previous final written warning.

The employee brought a claim for unfair dismissal and attempted to challenge the legitimacy of the previous warning. However, the Court of Appeal ruled that in principle it is legitimate for an employer to rely on a final warning which has been issued in good faith and where there were prima facie grounds for imposing it and it was not manifestly inappropriate to have issued it. The Employment Tribunal had ruled that the employer had had sufficient evidence for the previous warning and in these circumstances the dismissal had been fair. The Court of Appeal confirmed that it is not a Tribunal’s function to reopen a final warning and rule on whether it should have been issued and whether it was legally valid or a nullity.

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