Frontline UK Employment Law Update Edition 19 2023 - Case Updates

1. Mr J McAllister v Commissioners for her Majesty’s Revenue and Customs

2. Rogers v Leeds Laser Cutting

3. Teixeira v Zaika Restaurant Ltd and another

4. Hilaire v Luton Borough Council 

1. Mr J McAllister v Commissioners for her Majesty’s Revenue and Customs (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) upheld the decision of the Employment Tribunal (“ET”) that the dismissal of a disabled employee on long-term sickness absence did not constitute unfavourable treatment because of something arising in consequence of a disability under s.15 of the Equality Act 2010 (the “EqA”).

The Claimant suffered from anxiety and depression and during his employment would often be off work for long periods of time, although not always due to mental health reasons. Between 2016 and 2018, the Claimant was absent from work for 245 days on 23 occasions. The Respondent decided that his absence was having an adverse impact on the productivity and morale of staff. It also came to the conclusion that no more reasonable adjustments could be made to support his disability, and so he was dismissed in 2018. At the time of his dismissal, the Claimant had been absent for seven months and was unfit to return to work in any capacity.

As the Claimant had been dismissed for capability, he was entitled to receive a payment under the Civil Service Compensation Scheme. However, this payment was reduced (initially by 50%, but later adjusted to 20%) due to his conduct in failing to answer calls, returning relevant documentation on time, turning up late during phased return to work, and also displaying disruptive behaviour. He subsequently brought ET claims before the ET for unfavourable treatment because of something arising in consequence of disability, contrary to s.15 of the EqA, in relation to both his dismissal and the reduction in compensation.

The ET held that although the Claimant had been dismissed due to something (his absences) arising in consequence of his disability, the dismissal could be justified as a proportionate means of achieving the legitimate aims of ensuring staff were capable of demonstrating satisfactory attendance and a good standard of attendance, maintaining a fair, effective and transparent sickness management regime and the efficient use of resources. However, in relation to the reduction to his compensation, the ET held that the payment had been reduced partly due to Mr McAllister’s conduct arising in consequence of his disability, that a 50% reduction was disproportionate but the subsequent increase to this payment resulted it in it being a proportionate means of achieving the legitimate aim of distributing the fund fairly and in line with Civil Service guidance. The EAT upheld the ET’s decision in relation to the Claimant’s dismissal. As for the decision on compensation, the EAT held that the payment was made to the Claimant due to his underlying health conditions arising from his disability, which was not unfavourable treatment; – if anything it was more favourable than it would have been if he had been dismissed for a reason other than his disability, and on that basis it could not amount to discrimination under section 15 of the EqA.

The potentially wide range of “things” that could be said to arise “in consequence of” a disability, and the broad scope of “unfavourable” treatment (which does not require a claimant to show less favourable treatment than a comparator) mean that s.15 EqA claims can be difficult for employers to navigate. This case demonstrates that such claims can be defeated where it is clear that the treatment was justified as a proportionate means of achieving a legitimate aim, and provides helpful guidance on aims that might be considered legitimate in the context of long term or persistent sickness absence.

2. Rogers v Leeds Laser Cutting (LINK)

In this case, the Court of Appeal (“CA”) held that the Employment Tribunal (“ET”) had been right to hold that an employee who failed to attend work during the Covid-19 pandemic was not automatically unfairly dismissed under s. 100(1) Employment Rights Act 1996 (the “ERA”).

The Claimant had worked as a laser cutter at the Respondent’s large warehouse-type workplace. This space was well ventilated and there were typically never more than five employees in the building at one time. In March 2020, at the start of the pandemic, the Respondent put measures in place to allow employees to carry on working as normal. The Claimant initially came into work but subsequently texted his manager to say that he would be staying at home until lockdown had eased because he was concerned about infecting his child who had an underlying health condition. The Claimant was dismissed and claimed automatic unfair dismissal under s.100(1)(d) of the ERA, on the grounds that he had not returned to his place of work because he reasonably believed there were circumstances of danger (the risk of Covid-19 infection) that were serious and imminent, and which he could not reasonably have been expected to avert. The ET dismissed his claim on the basis that his decision not to return to his place of work was not directly linked to working conditions but rather to his general concerns relation to Covid-19. The ET did not consider that the Claimant’s belief in circumstances of “serious and imminent danger” was objectively reasonable given that it was not hard to socially distance in the Respondent’s workplace, and there were measures in place to reduce the risk of transmission. On appeal, the ET’s decision was upheld by the Employment Appeal Tribunal and the Claimant appealed to the CA.

The CA dismissed the appeal. In reaching its decision, the CA set out five questions that an ET must decide in cases under s.100(1)(d) of the ERA: (i) whether the employee believed that there were circumstances of serious and imminent danger at the workplace; (ii) if so, whether that belief was reasonably held; (iii) if so, could they reasonably have averted that danger; (iv) if not, whether they left, or proposed to leave or refused to return to the workplace because of the (perceived) serious and imminent danger; (v) if so, whether that was the reason (or principal reason) for the dismissal.

The CA made a distinction between the Claimant believing that the serious and imminent danger of infection was “all around” and such a danger existing “specifically within the workplace”, and made it clear that this depended on factual findings rather than a proposition of law. The ET’s findings of fact supported the conclusion that the Claimant did not feel seriously at risk in the workplace. There was nothing in the wording of s.100(1)(d) that required that the danger should be exclusive to the workplace. All that mattered was that the employee reasonably believed that there was a “serious and imminent danger in the workplace”. The CA noted that “it is the policy of the statute that [employees] should be protected from dismissal if they absent themselves [from the workplace] in order to avoid… [said] danger”. It was immaterial that the same danger of infection might be present outside the workplace i.e., on public transport or in the supermarket. Since the Claimant failed on this first question, the second question of whether any such belief would have been reasonable did not arise. The CA did note however that it is sufficient that an employee has a reasonable belief in the existence of danger as well as in its seriousness and imminence, not that actual danger must exist.

This is the first CA decision on automatic unfair dismissal under section 100(1) of the ERA in the context of the Covid-19 pandemic. It provides helpful clarity as to the workplace-specific nature of the perceived danger: a dangerous situation outside the workplace does not engage s.100(1) unless it also exists at the workplace.

3. Teixeira v Zaika Restaurant Ltd and another (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) held that the Employment Tribunal (“ET”) was wrong to make a 100% Polkey reduction to an unfair dismissal compensatory award on the basis that a redundancy “pool of one” meant that the dismissal was inevitable.

The Claimant worked as a chef in an Indian restaurant. He was one of a team of ten, and was a “non-speciality chef” with considerably less experience than the others. In 2020, the Covid-19 pandemic caused a significant reduction in business at the restaurant and the Respondent informed the Claimant that he was dismissed by reason of redundancy. None of the other chefs were made redundant during this period. The ET found that this dismissal was procedurally unfair because no prior meetings or consultation had been held. However, it found that even if the proper redundancy procedure had been followed, the Respondent could reasonably have determined that the Claimant was in a redundancy selection pool of one because he was the only non-speciality chef, and even if he had been pooled with the other chefs he would have been the lowest scorer. The ET concluded, therefore, that the redundancy was inevitable and the Claimant’s compensation should be reduced to zero.

On appeal, the EAT held that the ET had failed to properly apply the relevant legal principles in its reasoning. The ET should have considered the general legal requirement of some warning and consultation, even in the case of a small business and even where the selection pool would consist of just one person. The EAT held that the warning or consultation meetings might have resulted in a wider selection pool, the selection criteria used and even the outcome itself. In addition, even if the dismissal was inevitable, it might have been delayed by the consultation procedure, which would have resulted in some compensation for the Claimant’s loss of earnings for that period, unless there was a compelling reason why the dismissal would have been fair without any consultation. The ET had not given any compelling reason in its judgement.

This case highlights the risks run by employers who do not warn and consult employees whose roles are at risk of redundancy. Whilst there may be a compelling argument that consultation would have made no difference to the outcome, this is not always clear cut, and in an unfair dismissal claim an ET must properly engage with the question of what impact prior warning and genuine consultation would have had on the employer’s decision making.

4. Hilaire v Luton Borough Council (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) held that requiring a disabled employee to attend a redundancy selection interview could amount to a substantial disadvantage giving rise to a duty to make reasonable adjustments under s.20 of the Equality Act (the “EqA”). However, the Claimant’s claim failed as his failure to attend was not related to his disability.
The Claimant suffered from arthritis and moderately severe depression, and the Respondent was aware of these conditions. The Claimant’s disabilities caused him problems with his memory and concentration, as well as low mood and difficulty with social interactions

In 2013, as part of a collective redundancy process triggered by a restructuring, some of the Respondent’s employees, including the Claimant, were required to attend an interview in order to apply for a new role. The Claimant was signed off sick during the consultation process and was also dealing with grievances he had raised about pay, bullying and a warning he had received due to sickness absences. The Respondent extended the consultation process to allow the Claimant to attend an interview, but he remained unable to attend due to his ill health. Finally, the Respondent extended the time further, giving a deadline of 19 days to attend as there were 13 other candidates waiting for the outcome of their interviews. The Claimant still did not attend an interview. He complained that the Respondent, by way of reasonable adjustment, should have placed him into a role without the need for an interview. The Claimant was unsuccessful in his claim. The EAT found that whilst his disability might well have affected his ability to attend and participate in the interview (thus placing him at a disadvantage when compared to non-disabled employees), the real reason for the Claimant’s refusal to attend the interview was not connected to his disability: he had indicated that he had lost confidence in the Respondent and would not have attended an interview even if not absent. The EAT also held that postponing the interview did not amount to a reasonable adjustment. The Claimant was suffering from a significant impairment, and postponing the interview for a short period of time was not sufficient for him to recover and participate in the interview. However, there were no other reasonable adjustments that could have been made at the time. The process was one of collective redundancy in which 13 other employees were awaiting an outcome, funding for the Respondent had been reduced significantly and there was time pressure in relation to the completion of the restructuring. The Claimant’s argument that the Respondent could have slotted him into a new role without the interview was rejected as this would have adversely impacted others who had taken part in the selection process. Making a reasonable adjustment is not a vehicle for giving an advantage over and above removing the particular disadvantage.

This case demonstrates that causation is central to the question of whether there is a failure to make reasonable adjustments: did the application of a provision, criterion or practice place a disabled employee at a disadvantage because of a reason connected to their disability, or is there some other unrelated reason? If the disadvantage is unrelated to the disability, the claim will fail. It also serves as a reminder that adjustments must be reasonable. The question of whether or not an adjustment is reasonable is fact-specific and will include consideration of matters such as the burden on the employer, the impact on other employees, the extent to which the adjustment will reduce or remove the disadvantage, its practicability and the size and nature of the employer, amongst others.