01 November 2021
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases centred on dismissals, highlighting how important it is for employers to act fairly
Moore v Phoenix Product Development Ltd
The employment appeal tribunal (EAT) has held that a claimant was not unfairly dismissed from the company he founded after not being offered the opportunity to appeal.
The claimant is the inventor of a water-efficient toilet. He was the chief executive officer (CEO) of the respondent, Phoenix Product Development Limited, for sixteen years until he stepped down in 2017, staying on as a director and employee of the company.
Although the claimant was no longer CEO, he was unable to accept that he no longer had significant control over the company’s affairs. He was later dismissed without appeal due to an irretrievable breakdown in relationships.
Bringing a claim to the employment tribunal (ET), the claimant argued that his dismissal was procedurally and substantively unfair.
The ET rejected the claim, noting that the irreparable breakdown in his relationship with the company meant that he was dismissed for some other substantial reason (SOSR), and thus the dismissal was not unfair.
The claimant appealed this decision to the EAT, on the following grounds:
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the ET had failed to reach a reasoned determination as to whether the dismissal was fair
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the ET erred in its application of relevant case law by finding that the respondent not offering an appeal did not make the dismissal unfair
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the ET erred by assuming that he would not have appealed his dismissal if he had been offered the opportunity
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the ET had failed to establish the correct facts and/or apply the correct burden of proof in finding that the claimant was 100% culpable for his own dismissal; and
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the ET’s reasons for dismissing the claim were inadequate.
The EAT upheld the ET’s decision that the claimant was fairly dismissed, despite not being given a right to appeal. The EAT found that an appeal would have been futile in these circumstances and that it was not, in fact, necessary for the respondent to stipulate that there was a right to appeal.
Turning to each of the claimant’s grounds for appeal, the EAT held that the ET had not erred in its application of the law. Specifically, on the first ground, the EAT noted that the ET was right to find that the dismissal was fair because the respondent was left with little to no choice but to dismiss due to the claimant’s inability to ‘let go of the reins’ after stepping down as CEO.
On the third ground, the EAT decided that this was a conclusion that the ET was entitled to reach.
D’Silva v Croydon Health Services
The ET has decided that a National Health Service (NHS) receptionist, who was dismissed after telling her employer that she was scared to work in a public-facing role, was unfairly dismissed.
The claimant, who suffered from a stress-and-anxiety-induced disability, worked at an NHS Trust in Croydon. In 2017, she returned to work after a lengthy period of sick leave. Following her return, she discovered there had been a restructuring of roles and her administrative role was changed to include reception work. The claimant told her manager repeatedly that reception work was stressful for her and suggested many times that she be allowed to work in the back office.
An occupational health assessment was conducted which concluded that the claimant was fit to work the reception role and not on the front desk. It was determined that she did not have the functional resilience required to work in the back office.
The claimant was ultimately allowed to work in the back office but was told the arrangement would be temporary until she was able to return to reception work.
Later that year, she took another period of sick leave after being admitted to hospital with chest pains and stress. When she returned to work in 2018, a sickness absence review meeting was held where she was informed she would be returning to a reception role as the back office role was unsustainable – even though a colleague had already been appointed to work at the reception desk.
The claimant tried to find alternative roles within the NHS, and the Trust also suggested roles it considered suitable for her, but all to no avail as the claimant felt she could not do any of the roles. In the end, she did not put in an application for redeployment.
An occupational health assessment doctor later diagnosed the claimant with having anxiety about working with patients, naming it ‘public phobia’ – also known as ‘social phobia’.
In 2019, she was dismissed on the grounds of capability because of her ill health. The claimant then brought the following claims to the ET:
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failure to make reasonable adjustments
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unfair dismissal
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disability-related harassment, and
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victimisation.
The ET found that, after the occupational health assessment doctor had offered a diagnosis, the Trust made no effort to find the claimant alternative employment and did not follow its own policy on the matter. The Trust’s policy was described by the judge as being ‘light touch’, still putting a lot of the onus on the employee…[when] the duty to make reasonable adjustments is on the respondent, not the claimant.”
The ET judge went on to say that: “Leaving it to the employee to find an alternative role might successfully lead to an adjustment being made in some cases but the approach adopted by the respondent to leave all the effort to the claimant, and indeed the only slightly better ‘light touch’ approach in the policy, runs the risk that, like here, there are a number of suitable roles that would be reasonable adjustments but an adjustment is nevertheless not made.”
It was also found that the claimant’s past sickness absences were held against her in the decision-making process which led to her dismissal.
The ET ultimately decided that: “If a fair procedure had been followed and reasonable consideration given to redeployment then the likelihood is the claimant would have remained at work in a suitable vacancy.”
The unfair dismissal claim was therefore upheld, and the claimant was awarded £56,684.73, which included a £24,000 award for injury to feelings. Her other claims were dismissed, however.
Sithirapathy v PSI CRO UK Ltd and others
The ET has dismissed a series of claims concerning discrimination, unfair and wrongful dismissal, harassment and more, to avoid encouraging ‘a culture of hyper-sensitivity’.
The claimant worked as a lawyer for PSI CRO UK, the respondent. She was offered a role at the company’s branch in Switzerland but was told that her age ‘will prevent [her] from commanding a higher salary’. Due to unrelated personal reasons, she declined the role.
The claimant told the ET she was shocked by her employer’s response and was unaware they knew so much about her personal life. She cited that her employer had asked what her personal reasons were for declining the role and allegedly went on to say that she doesn’t have a boyfriend, isn’t married nor does she have any children.
Later that same year, the claimant applied for a promotion to senior legal counsel and was told that she was not ready to undertake the role as she was performing at the same level as existing senior legal counsels. She was also told that she was too young to expect to be promoted.
The following year, she accepted a non-legal role in Switzerland and her role in the UK was terminated shortly before she began the new role – which the ET did not accept was to prevent her from having continuous service.
One month after moving to Switzerland, the claimant’s new role was terminated due to a ‘reorganisation’ of the team, after which she made an unsuccessful attempt to return to her role in the UK branch because the role had already been filled.
The claimant bought 42 claims to the ET including but not limited to wrongful dismissal, unfair dismissal, breach of contract, as well as age and sex discrimination.
The ET decided that her claims could not be upheld because, with regards to wrongful and unfair dismissal, her contract was terminated outside of the UK and the contract came to an end by mutual agreement. The Swiss courts also found that the law of the land had not been breached.
Regarding her discrimination, breach of contract and harassment claims, the ET agreed with the employer’s argument that the comments made were to explain to the claimant that her personal circumstances would not be a problem at the Swiss branch.
The ET judge went on to say that: “The comments were unfortunate and awkward. However, we bear in mind the importance of not encouraging a culture of hyper-sensitivity or of imposing legal liability to every unfortunate phrase. We have concluded that, in this case, taking into account the context of the discussion, these comments did not cross the line such that they amounted to unlawful harassment.”
Featured in the November 2021 issue of Professional in Payroll, Pensions and Reward. Correct at time of publication.