UK Employment Law case updates - October 2016

By Ian Hunter, Pattie Walsh, Elizabeth Lang, James Froud, Warren Wayne


Latest UK Employment Law case updates - October 2016

Disabled employee entitled to the same salary when moved to a lesser role.
Is the client the same? An important consideration for TUPE transfers.
Warning that employees may bring claims in respect of events arising after ACAS Early Conciliation certificate is issued.
Helpful decision for employers handling discrimination and harassment grievances.

Disabled employee entitled to the same salary when moved to a lesser role.

G4S Cash Solutions (UK) Ltd v Powell UKEAT/0243/15/RN

This case confirmed that an employer's duty to make reasonable adjustments for a disabled employee can be extended to continuing to pay a higher salary when the employee is moved to a lesser role.

The Claimant became disabled due to a back injury and was therefore moved from an engineering role maintaining cash machines to a less skilled 'key runner' role. The Claimant was led to believe this was a long term arrangement under which her terms and conditions would otherwise remain the same. However the employer then proposed reducing the Claimant's pay. When the Claimant refused the pay cut he was then dismissed.

The Employment Tribunal found the dismissal to be discriminatory and unfair, and that the reasonable adjustments requirement (s20 Equality Act 2010) extended to maintaining the Claimant's former pay in his new role. The EAT agreed, finding on appeal by G4S, that there was no reason why the duty to make reasonable adjustments would not extend to protecting an employee's pay (along with other measures) to counter a disabled employee's disadvantage, albeit that it may cease to be a reasonable adjustment in the future.

This is a reminder that employers should think broadly about what adjustments may be possible and reasonable when considering how to neutralise any disadvantages suffered by a disabled employee.

Is the client the same? An important consideration for TUPE transfers.

CT Plus (Yorkshire) CIC v Black & Ors UKEAT/0035/16/DM

This case highlights the need for continuity of "the client" to trigger a TUPE transfer in the context of a change in service provider.

CT Plus Ltd ("CT") operated a park-and-ride car park, which ran between the outskirts and the centre of Hull. The Council subsidised the operation this service, by virtue of a direct contractual relationship with CT. Stagecoach subsequently decided that it could run the service commercially without a subsidy. CT's subsidised service was not permitted to continue in competition with Stagecoach's commercial venture, therefore CT stopped operating the park-and-ride car park. Stagecoach did not take on CT's drivers, nor did it use CT's buses.

The CT drivers claimed to transfer to Stagecoach by operation of TUPE's service provision change rules, arguing that Stagecoach had simply carried on the same activities as CT on behalf of the Council.

However, the ET and the EAT both found that the circumstances did not amount to a TUPE transfer because the activities in question were not carried out "on the client's behalf". When Stagecoach took over the park-and-ride service, the activities were no longer being carried out on the Council's behalf. The Council was therefore no more than an interested bystander and therefore TUPE was not triggered.

We often find that clients have not appreciated this subtlety in TUPE, which is an integral element to determining whether or not employees should be transferred following a service provision change. Where a service is being offered on behalf of a third party, employers should consider carefully whether that third party is the same before and after the change.

Warning that employees may bring claims in respect of events arising after ACAS Early Conciliation certificate is issued.

Compass Group UK & Ireland Ltd v Morgan UKEAT/0060/16

This case confirms that an employee who resigns after the ACAS early conciliation certificate is issued can validly bring a complaint of unfair dismissal as long as the resignation is connected to the events which first prompted the employee to contact ACAS.

The Claimant was asked by her employer to work at an alternative location and in a less senior role. Not long after, the Claimant registered a potential claim with ACAS under the Early Conciliation procedure and obtained an Early Conciliation certificate. Six weeks later, the Claimant resigned and filed an ET1 alleging unfair constructive dismissal. The Claimant's employer challenged the acceptance of the ET1 on the grounds that the procedural requirements had not been fulfilled because the Claimant had not yet resigned at the time that ACAS issued the Early Conciliation certificate.

The Court took a broad view of the requirements and held that there was a sufficient connection between the matters detailed in the claim form and those complained about in the Early Conciliation certificate. Consequently, the Claimant's claim was accepted.

Whilst this decision is plainly not helpful for employers, we do not consider that it gives employees a "free pass" to bring proceedings if the matters are unrelated to the Early Conciliation certificate.

Helpful decision for employers handling discrimination and harassment grievances

Unite the Union v Nailard UKEAT/0300/15/BA

The ET was wrong to examine the conduct of the perpetrators, not the decision making process of the employer, when assessing a claim for harassment and direct discrimination by its paid officers.

Ms Nailard worked as a regional officer for Unite the Union ("Unite"). She was bullied and sexually harassed by two workplace union representatives. Ms Nailard lodged a grievance with Unite, who proposed moving her to another office. Ms Nailard objected to this transfer and subsequently resigned, claiming that she had been constructively dismissed. Ms Nailard brought a claim against the union representatives for sexual harassment, and also alleged that Unite was vicariously liable for their actions. In addition, Ms Nailard brought a claim against Unite for harassment and discrimination in its failure to deal with her grievance appropriately.

The ET found in favour of Ms Nailard. In relation to the claim against Unite for harassment and discrimination, the ET concluded that the actions of the union representatives were related to a protected characteristic, namely sex, and consequently the handling of the entire grievance process was linked to the same unlawful conduct.

However, the EAT found this to be the wrong approach. The sexual harassment and the grievance process should have been considered separately. It was wrong to assume that the decision to transfer Ms Nailard was "tainted" by the conduct of the union representatives. The case was remitted to the ET for analysis of whether Ms Nailard's sex was the reason for Unite deciding to transfer her.

This is a helpful case for employers because the protected characteristic relating to one incident is not automatically assumed to be the motivation for all decisions flowing from it. However it does not grant complete immunity to employers where a claim is brought for harassment or discrimination in relation to the handling of a grievance process. Where the decisions made by an employer were in fact motivated by a protected characteristic, whether consciously or unconsciously, then a claim for harassment or discrimination will still succeed.