Disclosure, adjustment, status
01 November 2019
This article was featured in the November 2019 issue of the magazine.
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Okwu v Rise Community Action
In this case the Employment Appeal Tribunal (EAT) was tasked with deciding whether an employee’s complaint qualified as a protected disclosure, therefore potentially rendering her employer’s decision to dismiss automatically unfair as a result.
Okwu’s employer, a small charity that provided support to vulnerable women, extended her probationary period due to concerns over performance. Not long after this, Okwu submitted a letter of complaint that outlined her belief that the organisation was acting in breach of the Data Protection Act 1998 (DPA). She specifically referred to their failure to provide her with a work mobile phone and secure storage at work when she was dealing with sensitive and confidential personal information relating to service users.
The charity dismissed Okwu, claiming it was satisfied that she was not prepared to take reasonable instructions in respect of the previously identified performance issues. However, in the letter of termination the organisation stated that the decision was “compounded” by her recent comments regarding data protection, saying it demonstrated her “contempt” for the charity.
Ms Okwu brought a claim to Employment Tribunal (ET) for automatic unfair dismissal on the grounds of making a protected disclosure. However, the ET dismissed this claim as aside from lacking clarity the employee was found not to have made any protected disclosures, as the matters raised were not in the public interest as they concerned her own contractual provision. This included the potential breaches of the DPA as they were relevant to her performance issues, and the ET accepted that the charity had provided clear evidence that showed it had genuine concerns.
Believing the ET had erred in its approach to the question of whether her disclosures amounted to a protected disclosure, Okwu appealed to the EAT. She argued that the organisation had failed to provide a clear reason for her dismissal as they had already noted their issues with her performance and had previously extended her probationary period. Crucially, the only change between this and the time leading up to her dismissal had been her disclosures.
In deciding to uphold her appeal the EAT applied the precedent in the case Chesterton Global Limited v Nurmohamed. This case outlined that where a disclosure could have been made in the personal interests of the employee, it will be up to tribunals to determine, as a matter of fact, whether there was sufficient public interest for it to qualify as a protected disclosure.
The EAT found that the ET had failed to properly consider whether the claimant had a reasonable belief that her disclosure was in the public interest. Given the sensitive nature of the information, the EAT stated it was hard to believe that it could not be. The EAT went on to explain that the ET had also failed to demonstrate why the original disclosures lacked specific details to be considered protected, as the employee had clearly demonstrated the exact nature of her concerns according to them.
The case has been remitted back to tribunal to consider whether the disclosure was in fact the reason for dismissal. However, it is a good reminder that employers must be extremely cautious when basing dismissal decisions on disclosures of any kind, as they could face claims for unfair dismissal if these disclosures are later judged to be protected.
...be extremely cautious when basing dismissal decisions on disclosures of any kind...
Linsley v Commissioners for Her Majesty’s Revenue & Customs
This case focused on the issue of reasonableness as it pertains to making reasonable adjustments at work to accommodate a disabled employee. In this case, the EAT had to decide whether the employer’s efforts could be called into question.
The employee suffered from ulcerative colitis, a condition that could manifest itself in a sudden, unpredictable need for a bowel movement. This condition could be aggravated by stress, therefore, under the orders of several Occupational Health reports the employee was provided with a dedicated parking space near an office building, to allow her to reach a toilet urgently and remove the stress of having to find a parking space each day.
However, in 2016 the employee moved sites and was not provided with a dedicated parking space at the new location. Instead, parking was arranged on a first-come-first-served basis and the employee was permitted to park either near the toilets if she could, or alternatively park in an unauthorised zone without incurring a parking sanction, although she would later be required to move the vehicle.
Interestingly, the employer had a specific policy in place outlining that priority needed to be given to staff requiring a parking space as a reasonable adjustment. Therefore, although the employee conceded that these alternative arrangements did guarantee her access to a space at all times, she claimed that the time spent looking for a space caused her to become stressed and exacerbated her condition.
Linsley brought a claim to ET for disability discrimination on the basis that the employer had failed to put in place reasonable adjustments. However, the ET dismissed this claim, finding that the adjustments in place were sufficient to not have breached the duty to make reasonable adjustments, despite them not being what the employee would have preferred. Additionally, although the ET did find that the organisation had clearly failed to comply with its own policy on parking space allocation, they concluded that the policy was not a contractual right.
Unhappy with the outcome, the employee appealed to the EAT, where it was upheld on all grounds and remitted back to the ET to reconsider. In its judgment the EAT confirmed that the initial ET failed to consider the relevance of the employer’s policy in this situation when assessing reasonableness. By referring to the policy as non-contractual, the ET had incorrectly diminished its significance.
The ET was also said to have failed to properly consider the stress of looking for a space, as this was the issue that any adjustment should have been attempting to resolve, and the alternative arrangements failed to address the disadvantage caused by searching for a space.
In summary, this case acts as a useful example of how employers ought to approach issues involving reasonable adjustments, particularly that focus should be on the particular disadvantage suffered by the employee when assessing the reasonableness of the steps taken by the employer. It also emphasises that where there is more than one disadvantage involved, employers must consider whether the reasonable adjustment has the desired effect for both.
...Narayan would risk a financial penalty if she did not attend on time, or work for the duration of the shift
Community Based Care Health Ltd v Narayan
In this case the EAT was responsible for determining the employment status of an out-of-hours GP, who had set up her own limited liability company to receive payments.
Ms Narayan had provided out-of-hours care for Community Based Care Health Ltd (CBCH) over a twelve-year period. CBCH was not obliged to offer any shifts, and Narayan was not obliged to accept any work offered. She was also able to take holidays whenever she wished. Following advice from her accountant, Narayan set up a limited company and received payments into its account from CBCH. Although new bank details were provided, she did not inform CBCH of this new arrangement.
During this time, the National Health Service (NHS) introduced a new standard contract for providers of out-of-hours services, requiring providers such as CBCH to ensure the doctors providing the services were competent and properly qualified. In order to satisfy this, CBCH was obligated to produce audits of the work completed by Narayan. Following an audit, CBCH took issue with some of the advice she was issuing to patients and also claimed that she had swapped some of her duties without informing them on short notice.
As a result, CBCH confirmed that it would no longer be offering Narayan any more work. In response, Narayan presented claims of unfair dismissal, race and sex discrimination, breach of contract and unpaid holiday pay to an ET. However, CBCH argued she did not have legal grounds in which to bring such claims as their arrangement with her amounted to her being self-employed.
In order to determine Narayan’s employment status, the ET examined the key factors of control, mutuality of obligation and personal service which are key in determining employment status. The ET determined that control was present as, having accepted a shift, Narayan would risk a financial penalty if she did not attend on time, or work for the duration of the shift. Another degree of control was the fact that she was required to use the equipment provided by CBCH.
Narayan was also required to carry out any work personally and could not send another individual in her place, but mutuality of obligation was not present. It was determined that Narayan had worker status and could proceed with her claims.
CBCH appealed the decision, arguing that the separate company Narayan had set up for pay purposes was actually the contracting party. However, the EAT confirmed that the separate company established by Narayan could not have been the contracting party because it did not meet the requirements introduced by the NHS; specifically, that contracted providers had to meet strict qualification requirements. This was because the company was not a doctor, or ‘even human’, and CBCH could not have approved of it without knowing of its existence. Therefore, CBCH had not become a client of it.
This case is yet another reminder of the challenges that can be faced when determining employment status and that tribunals will always endeavour to look into the true nature of the working relationship.