Dismissal, harassment, disability
25 June 2018
This article was featured in the July - August 2018 issue of the magazine.
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Haywood
In a landmark case, the Supreme Court has clarified when written notice of dismissal becomes effective in the absence of an express term.
The employee was working as associate director of business development at Newcastle Upon Tyne Hospital Trust. Following a merger, Haywood was informed during a meeting on 13 April 2011 that her role was at risk of redundancy. The employer emphasised that a final decision had yet to be made on her redundancy, to which she asked if they could refrain from making this decision until she returned from her pre-booked holiday to Egypt which was scheduled to begin on 19 April.
However, the employer could not agree to Haywood’s request and issued her with her notice of dismissal during her leave sending this by recorded delivery, standard delivery and email on 20 April. The Trust was aware the employee was out of the country at the time and the letter was collected at the sorting office by her father and left at her house. The employee only had an opportunity to review this letter following her return on 27 April; as a result she believed her notice should have begun on this date as opposed to the trust who believed it should have begun on the date the letter was originally sent. The date that the notice ran from was important as the original notice issued by the employer would see Haywood’s position terminated prior to her fiftieth birthday, something which would significantly reduce her pension entitlements.
The High Court were asked to determine when the notice became effective and, in turn, if Haywood’s employment was effectively terminated prior to her fiftieth birthday. They agreed that the notice began on the day she had an opportunity to review the letter meaning Haywood was still employed on her fiftieth birthday and entitled to the higher pension. The Court of Appeal similarly concluded the dismissal notice only became effective on 27 April, as opposed to 20 April.
The employer appealed these decisions to the Supreme Court which, however, also supported the claims of Haywood. By majority the Supreme Court held that in instances where there is no express contractual provision on when a written notice becomes effective, there is an implied contractual term which states this notice is only effective from the date it is received and read by the employee, or from the date they have had a reasonable opportunity to read it. As there was no express contractual provision in this case, the implied term meant the employee’s written notice of dismissal ran from the 27 April as there was no reasonable opportunity to read the letter before this date. Haywood was subsequently awarded £400,000 in damages following the decision.
As a result of this decision, employers will need to consider the existence of an implied term in their contracts of employment and would be advised to include an express provision regarding notice start dates going forward. To ensure greater clarity around the date notices are received employers should consider providing verbal notice wherever possible; however, in instances where individuals are away from work sending email confirmation with a read receipt will help confirm the notice has been sufficiently reviewed.
...the notice began on the day she had an opportunity to review the letter...
Bakkali v Greater Manchester Buses (South) Ltd
This case looks at the importance of context when determining unlawful harassment.
Bakkali, a Muslim man of Moroccan origin, was employed as a bus driver by Greater Manchester Buses Ltd between 2008 and 2015. During a conversation with his colleague, Mr Cotter, Bakkali made reference to an article he had read on Islamic State (IS). He specifically mentioned that according to the article, IS were “trying to enforce law and order” and were “confident and proficient fighters”.
A short while after this initial conversation the two men were seated together in the staff canteen when Cotter unexpectedly asked Bakkali “Are you still promoting IS?”. The claimant reacted aggressively to this comment and an altercation ensued. Following an investigation, he was dismissed for gross misconduct and proceeded to bring various claims to an Employment Tribunal (ET) including direct race and religious discrimination and harassment.
The employee’s claims, including those of direct discrimination and harassment, were dismissed by the ET. In dismissing the claim for direct discrimination the ET considered section 13 of the Equality Act 2010, which explains that direct discrimination is when an individual is treated less favourably because of their protected characteristic. Instead, the ET supported the claims of the employer who argued that Cotter’s remarks were founded on the context of the initial conversation between the two individuals rather than any protected characteristic of race or religion. Similar logic was applied when dismissing the claim for religious harassment which according to section 27 of the Equality Act has to be unwanted conduct related to a protected characteristic. The ET ruled that there was no evidence that the remark in question was related to Bakkali’s race or religion, again citing his initial comments as the reason for Cotter’s remarks.
Bakkali appealed the decision on religious harassment arguing that the ET erred in mixing up the tests for direct discrimination and harassment. The Employment Appeal Tribunal (EAT) upheld the original decision of the ET and, despite admitting that another tribunal may have reached a different conclusion on the case if presented with the same evidence, confirmed the correct techniques were used. The EAT added that although the language used may have been unpleasant it was clear when assessed in the context of the previous conversation that it is not related to the claimant’s race or religion.
Following this decision, employers are reminded to play close attention to the full set of circumstances surrounding allegations of harassment to determine the context in which remarks are made.
...the showing of the film was a consequence of Mr Grosset’s impaired mental state...
City of York Council v Grosset
In this case, the Court of Appeal (CA) addressed the issue of discrimination arising from an individual’s disability.
The employee in question, Mr Grosset, originally worked as an English teacher at the Joseph Rowntree school in York. In 2013, Mr Grosset showed an 18+ horror movie to a class of fifteen-year-olds without gaining the appropriate consent of the children’s parents or management. The teacher, who suffered from cystic fibrosis, acknowledged that his actions were ill-advised but claimed this was due to the added stress brought about by increased workloads and changes to the school’s head teacher and examination system which significantly exacerbated his condition.
Although the school had initially made efforts to manage Mr Grosset’s disability, these adjustments fell away as the workload increased, with the new head teacher being unaware of his condition. Following an investigation into the matter, Mr Grosset had his employment terminated on the grounds of gross misconduct with the school citing their duty to protect the welfare of their students. The teacher proceeded to bring claims of unfair dismissal and disability discrimination to an ET.
The claims of unfair dismissal and disability discrimination were upheld by the ET, which ruled that the school failed to consider that the teacher’s error of judgement was a result of stress arising in consequence of his disability. In addition, it was determined the school failed to make reasonable adjustments to accommodate Mr Grosset’s disability as is their obligation under sections 20 and 21 of the Equality Act 2010. The employer appealed the original ruling; however, the EAT stated the ET were entitled to find the showing of the film was a consequence of Mr Grosset’s impaired mental state due to his condition.
The school further appealed to the CA claiming their duty to protect the welfare of their students was sufficient to justify the dismissal of Mr Grosset. However, the CA upheld the previous decisions of the ET and EAT. They decided that the school treated Mr Grosset unfavourably in terminating his contract due to the fact his behaviour arose in consequence of his disability, citing the causal link between the incident of misconduct and his disability. They also accepted that if the school had made reasonable adjustments then it is reasonably expected that the teacher would not have been subjected to the same level of stress.
This decision reminds employers of the need to consider the potential of a causal link between an individual’s disability and any incidents of misconduct. Failure to properly identify these links will leave employers liable to claims of disability discrimination. It also emphasises the importance of keeping up-to-date personnel files to ensure any reasonable adjustments are maintained to support disabled staff throughout the length of their employment.