UK Employment Law case updates - February 2018

Latest UK Employment Law case updates - February 2018

1. When do employers have constructive knowledge of disability?
2. Injury to feelings for Working Time detriment claim
3. Non-renewal of fixed term contract must be fair

When do employers have constructive knowledge of disability?

Edith Donelien v Liberata UK Ltd (Court of Appeal)

The Court of Appeal has confirmed that an employer did not have constructive knowledge of an employee’s disability where it relied on an occupational health report stating that the employee was not disabled and the employer had done all that it could reasonably be expected to have done to find out the nature of her health problems.

A court officer was regularly absent from work, claiming that her absences were due to various health problems such as high blood pressure, breathing problems, or work-related stress. After receiving letters from her GP, her employer agreed to change her working hours, arranged a return-to-work meeting with her, and referred her to its occupational health service. Her employer posed several questions for Occupational Health to answer, and the subsequent assessment advised that the court officer was not disabled, although it did not answer all of the questions as the employee was uncooperative during the medical and refused to allow the occupational health consultant to liaise with her GP. Following further periods of absence, the court officer was dismissed due to her failure to attend work during her contractual hours and to comply with her employer’s absence notification procedure.

She brought various claims including for direct disability discrimination and a failure to make reasonable adjustments. The ET held that the court officer was in fact disabled (as defined by the Equality Act) prior to her dismissal, but her claims were dismissed as her employer did not know and could not reasonably have been expected to know of her disability: it had taken reasonable steps to determine the nature of her health problems. On appeal, the EAT upheld the tribunal’s decision. The court officer appealed to the Court of Appeal.

The Court of Appeal unanimously dismissed the appeal. It held that in the circumstances, it was reasonable for the tribunal to find that the employer did not have constructive knowledge of the court officer’s disability. The employer had taken into account not only the report from its occupational health provider advising that the court officer was not disabled, but also the letters from her GP and the return-to-work meeting with the court officer.

The decision is helpful for diligent employers, in providing guidance on the lengths to which an employer can be expected to go in order to understand the gravity of an employee's condition and the threshold for acquiring "constructive knowledge". However, it should not be read as meaning that employers can and should rely solely on occupational health reports, as such reports must not be read uncritically or taken entirely at face value. Employers must consider the context, whether the report raises further questions to be answered, and whether other steps should be taken to establish whether the employee is suffering from a disability.

South Yorkshire Fire & Rescue v Mansell (Employment Appeal Tribunal)

Awards for injury to feelings can be made by Tribunals in claims of working time detriment brought under the Employment Rights Act 1996, the EAT has held. Whether awards are made will be a question of fact in each case.

Firefighters brought a complaint for working time detriment against their employers, the South Yorkshire Fire and Rescue Service, following the introduction of a new shift system, which involved a breach of the Working Time Regulations in relation to night work and daily rest. The firefighters refused to volunteer for the new shifts and were transferred to other fire stations. They brought proceedings in the ET, claiming that the detriments they had suffered as a result of the move included increased journey times, loss of free time, and interference with care obligations. In addition to financial losses, the firefighters claimed compensation for injury to feelings.

The EAT upheld the ET decision that damages and injury to feelings compensation were recoverable. As to the latter, it concluded that a complaint of working time detriment was akin to claims of discrimination or victimisation, and in either of those cases injury to feelings was potentially recoverable.

Employers are well aware of the possibility that injury to feelings awards may be made against them in discrimination claims; but the EAT has expanded that opportunity to those who have been subject to a working time detriment. Whilst any decision to award non-pecuniary losses will turn on the case's own facts, this decision creates an added risk factor for employers who are looking to make changes to working time arrangements for its employees.

Royal Surrey County NHS Foundation Trust v Drzymala (Employment Appeal Tribunal)

The EAT has confirmed that an employer’s compliance with the requirements of the Fixed Term Employees Regulations when not renewing a fixed term employee's contract does not create an automatic defence against an unfair dismissal claim.

A doctor was employed on a series of fixed term contracts. Her last contract was not renewed because her employer decided to make a permanent appointment to the role she had been performing. She interviewed for the position but was unsuccessful after a competitive recruitment process. Her employer mentioned an alternative role in a lower-ranking post but did not discuss it further with her. The doctor was given three months' notice in writing of the end of her fixed term contract, without mention of a right of appeal or the possibility of alternative employment. She raised a grievance and requested an appeal against the termination of her employment. Her employer acknowledged that it should have offered a right of appeal against the non-renewal of her contract, but did not think that it would have changed the outcome.

The doctor brought a successful claim for unfair dismissal in the ET. Her employer appealed, arguing that informing her of vacancies as required by the Fixed Term Employees Regulations satisfied the requirements of fairness, or at least provided evidence in support of it having acted fairly.

The EAT dismissed the appeal and concluded that compliance with the Fixed Term Employee Regulations does not of itself create a defence to an unfair dismissal claim. Whether an employee is treated fairly is a question of fact. Usually, when an employer decides not to renew a fixed term contract it can rely on "some other substantial reason" (SOSR) as the potentially fair reason for dismissal. In these circumstances however, the Tribunal was entitled to find that the dismissal was unfair due to the employer’s failure to expand upon its initial discussion with the doctor regarding alternative roles, and not providing a right of appeal against the non-renewal of her contract.

Whilst there is no universal obligation to offer alternative employment for an employee on a fixed-term contract, the employer had chosen to engage in such discussions in this case, and therefore it was unfair that it later decided not to pursue that option with her.