Termination date, disability, surveillance
12 March 2018
This article was featured in the April 2018 issue of the magazine
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decision in three cases
Cosmeceuticals Ltd v Parkin
The ‘effective date of termination’ (EDT) is the date an employee’s employment comes to an end and it differs depending on the dismissal; for example, whether it is with or without notice. The EDT is crucial because an employee must bring an unfair dismissal claim within three months of this date, taking in to account time when the clock is stopped for early conciliation. The employment appeal tribunal (EAT) have considered whether an employee’s EDT can be changed by receiving written notice of termination following a summary dismissal.
The employee worked in the role of managing director (MD) for a pharmaceuticals and cosmetics company from 22 June 2009. This was a senior position and, during the early stages of her employment, there were concerns about her visibility in the office, contributed to by her practice of working from home one day a week because of difficult personal circumstances.
The chairman raised concerns with the MD about her approach to the role and how this might affect overall performance. He did not, however, state this could have a negative impact on her continuing employment.
The employee agreed to take a two-month sabbatical in the summer of 2015 to focus on her personal circumstances. The chairman’s concerns about her performance increased during this period and a meeting was held on 1 September 2015 when the employee returned to work. At the meeting, the chairman informed the employee of the performance concerns and told her that she would not be able to return to her position as MD of the company. Whilst there was some discussion about alternative employment within the business, these were not comparable to the senior position.
The employee was placed on garden leave. The chairman then wrote to the employee on 29 September 2015 giving her notice of termination of employment, with her last day confirmed as the 23 October 2015. The employee brought a claim of unfair dismissal.
The employment tribunal (ET) raised the issue of EDT. Though they found the verbal discussion on 1 September 2015 had the effect of bringing the employment contract to an end, they determined the effective date of termination was 23 October 2015. They also judged the dismissal was unfair because the employee had not been provided with an opportunity to present her case in relation to the concerns about her performance and she had not been notified a possible consequence of her continued poor performance was dismissal.
The employer appealed against the decision alleging her effective date of termination was 1 September 2015. If successful, this would result in the claim of unfair dismissal being submitted out of time. The EAT reiterated that the effective date of termination is a statutory concept which can’t be amended by agreement between the parties. Where an employer makes it clear they are withdrawing the contract of employment, this is sufficient to communicate a dismissal and the effective date of termination will be the date of this communication.
Applying this to the case, the EAT found the conversation on 1 September 2015 was sufficient to bring the employment to end on this date. It was made clear, in unambiguous language that the employee’s employment within the role of MD was being brought to an end immediately and the employee was summarily dismissed. Therefore, her unfair dismissal claim was brought out of time; however, the case was remitted to the ET to determine whether time limits should be extended.
...employee must bring an unfair dismissal claim within three months...
Donelien v Liberata UK Ltd
Under the Disability Discrimination Act 1995, and the current Equality Act 2010, employers are required to make reasonable adjustments when they know, or could reasonably be expected to know, that an employee is disabled. The court of appeal has considered the issue of when an employer is reasonably expected to know of a disability, known as ‘constructive knowledge’.
A long-serving court officer began having high levels of absence from 2008. She initially informed managers this was because of low energy levels and high blood pressure. In a return to work interview in November 2008 she stated her illness was work-related due to stress. A letter was received from the employee’s general practitioner (GP) in January 2009 stating the employee was receiving treatment for hypertension, stress, low energy and tiredness, and suggested a phased return to work. The employer agreed the phased return and suggested referring the employee to occupational health (OH) in February. The employee refused, stating the GP letter outlined all the necessary information. Further absences occurred and a GP letter in April 2009 indicated the employee suffered from an upset stomach and right wrist pain.
At an absence interview in May, the employee refused to cooperate with absence reporting procedures and maintained she would not be assessed by OH. A third GP letter in June 2009 highlighted she was receiving continued treatment for hypertension and stress. An assessment was carried out by OH the same month, although the employee did not give consent for the assessor to contact her GP. The OH report stated the employee was suffering from hypertension; however, the situation could be resolved by addressing outstanding employment issues. Following a request for clarification, a second OH consultant stated the problem was “managerial rather than medical” and there was no reason to believe the employee suffered from a disability.
Disciplinary proceedings were commenced. The employee produced a further GP note which stated her sickness absence was due to work-related stress. The employee was subsequently dismissed for a failure to follow procedures and to work her contractual hours. She made a number of tribunal claims, including a claim for a failure to make reasonable adjustments.
Although the ET found the employee did suffer from a disability, they determined that the employer could not reasonably have known she was disabled. They judged the employer had done all that they could reasonably have been expected to do to find out about her health problems, which was not helped by the lack of cooperation from the employee herself.
On appeal, the EAT found the employer could not reasonably have known she was disabled when considering all the evidence available to them. They had properly considered the OH advice, her return to work meetings, discussions with the employee and GP letters.
Following a further appeal, the court of appeal outlined that the task for a tribunal is to determine what the employer could reasonably have been expected to know based on the facts of this case. They also reiterated that employers have to make a factual judgment of whether the employee is disabled; they cannot simply take the opinion of medical advisers as their own.
Applying this to the facts, the court agreed that the tribunal was entitled to find the employer did not have constructive knowledge the employee was disabled based on the information they had available to them, including all the medical advice, GP letters and the employee’s lack of communication. The appeal was dismissed.
...employees’ privacy rights were breached by the covert surveillance
López Ribalda and others v Spain
Employees have a right to respect for private and family life under article 8 of the European convention of human rights (‘the convention’). Restrictions can be placed on the right by employers to achieve a legitimate business aim, so long as their methods are proportionate and necessary. The European Court of Human Rights (ECHR) has examined whether covert surveillance set up by an employer to monitor suspected theft breached employees’ privacy rights.
Five employees worked as cashiers in a Spanish supermarket chain. Irregularities between sales numbers and stock levels in the supermarket were identified by the shop manager and reported to the employer. The employer decided to install CCTV cameras in the supermarket to monitor whether theft was taking place. Visible and hidden cameras were installed, with the employees only being informed that monitoring was taking place through the visible cameras.
The employees were invited to individual meetings to discuss allegations of theft. During these meetings, footage from the hidden cameras was shown which identified the employees were stealing supermarket stock themselves, and helping others to steal. The employees admitted theft and they were dismissed.
Under Spanish data protection laws, individuals have a right to be informed about the processing and storage of personal data. The employees challenged the use of the covert videos through the Spanish court system, arguing they had not been told about the covert cameras so their rights were breached. The court, and Spanish appeal court, found the employer had lawfully obtained the CCTV video footage; the use of covert cameras was justified as the employer had reasonable suspicions of stock theft and there were no other methods available to sufficiently protect the employer’s rights.
The employees subsequently made a claim to the ECHR alleging the covert surveillance itself, and the use of footage obtained by covert surveillance in the dismissal process, breached their rights to privacy under article 8 of the convention.
The ECHR highlighted that the obligation on the Spanish courts is to determine whether there was a correct balance struck between the competing rights i.e. the employees’ rights to privacy and the employer’s business interest in undertaking covert surveillance to protect their goods. In this case, the court found the use of covert surveillance was not a proportionate method of meeting the employer’s interests. Not only did the surveillance breach Spanish data laws, the employer could have protected their rights by taking steps such as providing general information about covert surveillance and informing employees data was being processed. Therefore, the ECHR judged the employees’ privacy rights were breached by the covert surveillance.