Here are some recent important decisions of the Courts and Tribunals that highlight key developments in employment law.
No duty to make reasonable adjustments when an employee is unfit to return to work
The Employment Appeal Tribunal (EAT) has found that an employer's duty to make reasonable adjustments is not triggered when an employee is on long term sick leave and has given no indication as to when they are likely to return to work. This case is likely to be well received by employers, however it should be noted that this case was decided under the Disability Discrimination Act 1995, and not the Equality Act 2010, which has since introduced the "discrimination arising from disability" claim. Now, rather than bringing a reasonable adjustments claim, such employees could argue that dismissal due to long term sickness absence constitutes dismissal arising from disability, requiring objective justification by the employer.
(Doran v Department for Work and Pensions, EAT)
Workplace closure redundancy not triggered by closure of parking facility
HGV drivers were found to be unfairly dismissed when their employer argued that they were redundant due to the closure of a secure depot in Stockport where the drivers parked their HGVs overnight. The drivers travelled to, took instructions from and started their routes from the employer's Wednesbury depot each day. The EAT found that the closure of the Stockport depot did not constitute a workplace closure redundancy. There was no diminution in the requirements for HGV drivers and, looking at the drivers' contracts of employment and their connection to the depots, the drivers' place of work was deemed to be the Wednesbury depot, which remained open. There was a clear indication in this case that the employer should have argued "some other substantive reason" as an alternative reason for the dismissal.
(EXOL Lubricants Ltd v Birch and another, EAT)
"Virtual employee" working from Australia was protected against unfair dismissal
In this case, the EAT found that an Australian citizen working remotely from Australia for family reasons was still entitled to bring unfair dismissal and whistleblowing claims against her British employer in the Employment Tribunal. The EAT placed significant weight on the fact that the employee's work was for the benefit of her employer's London operation. The fact that she was allowed to work remotely from Australia as a "virtual employee" did not make her any different to those employees physically working in London. The EAT also found it relevant that the employer in this case did not dispute the employee's contention that she was unable to bring claims in Australia, as well as the fact that the employee's grievance had been dealt with in London under the employer's staff handbook. This case emphasises the increasing globalisation of workforces and the need to take care in defining applicable law and workplaces when transferring employees overseas.
(Lodge v Dignity & Choice in Dying and another, EAT)
Binding settlement reached through exchange of emails
The High Court held that the parties to litigation had settled their dispute by an agreement contained in an exchange in emails between their solicitors. The email exchange had not made it clear that the claimant's agreement to accept the defendant's settlement offer was conditional on concluding a further documented agreement and was not marked "subject to contract". The Court held that the parties had intended to reach a final and binding settlement on the exchange of emails, without the need to agree further terms. This case serves as a useful reminder to employers to ensure that any settlement offers made to an employee during the course of settlement negotiations are marked "subject to contract". In an employment context, failing to do so may mean that an employer is bound to pay a settlement sum despite the employee not having effectively waived their claims under a settlement agreement.
(Bieber and others v Teathers Limited (in liquidation), High Court)
Reasons for dismissal should be taken "as a whole"
In this case, an employee was dismissed after a series of three separate incidents. The Tribunal had looked at each incident individually and found that the dismissal was fair based on only two of the incidents and despite the fact that it also found that one of the incidents, a sexual assault allegation had not been fully investigated. On appeal, the EAT held that the Tribunal had erred by looking at each complaint individually. When deciding whether a dismissal is fair with regard to reasonableness, the actual reason must be taken into account. Following this reasoning, if the reason for dismissal is a "composite" reason following a series of incidents, such incidents should be considered "as a whole" when assessing fairness.
(Robinson v Combat Stress, EAT)
Outcome of appeal post TUPE transfer was effective despite not being communicated to the employee
An employee was dismissed for gross misconduct prior to a TUPE transfer. She appealed before the transfer, but her appeal was not heard until after the transfer. Her appeal was successful. The EAT held that as the employee had succeeded in her appeal, this had the effect of reviving her employment contract. Consequently, she had been employed immediately before the transfer and therefore her employment transferred under TUPE. Further, the fact that she had not been notified of the outcome of her appeal was irrelevant as TUPE transfers happen automatically.
(Salmon v (1) Castlebeck Care (Teesdale) Ltd (in Administration) (2) Danshell Healthcare Ltd and others, EAT)
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