Employment Law Cases

August 2009

It is not unusual for employees to be dismissed by letter and this is the approach that we would advocate in all but the most simple of cases in order to avoid accusations that the outcome of a disciplinary hearing had been predetermined.  However, the case of Gisda Cyf v Barratt is an example of when adopting this approach can cause difficulties.

Miss Barratt attended a disciplinary hearing on Tuesday 28th November to answer allegations of gross misconduct.  She was sent home after the meeting and told to expect a letter on Thursday 30th November which would contain the Company’s decision. The letter arrived on the Thursday as the Company had said it would but was signed for by her boyfriend’s son because Miss Barratt was away in London. When Miss Barratt arrived home the following Monday (4th of December) she opened the letter and read of her dismissal for the first time.

On the 2nd of March 2009 Miss Barratt lodged complaints of unfair dismissal and sex discrimination.  However a preliminary issue arose as to whether the tribunal had jurisdiction to hear her claims; if the effective date of termination was when she opened the letter and read of her dismissal then her claims would be within the three month time limit.  If, however, her employment was terminated on the day that the letter was delivered to her home address, and signed for, then her claim had been presented out of time.

Unfortunately for the employer, the Tribunal decided that the dismissal did not occur until Miss Barratt read the letter on the Monday.  This meant her claims of unfair dismissal and sex discrimination were made within the time limit. Gisda appealed but their appeal has now been rejected by the Court of Appeal who said:

“Where a decision to dismiss is communicated by a letter sent to the employee at home, and the employee has neither gone away deliberately to avoid receiving the letter nor [deliberately] avoided opening and reading [the letter] the effective date of termination is when the letter is read by the employee, not when it arrives in the post”.

In this case, the Tribunal had decided that Miss Barratt’s trip away was not a deliberate attempt to avoid reading the letter; she had gone away to visit her sister who had given birth the previous week. 

This decision has many implications for employers. Most importantly employers cannot, in future, rely on communications being read two days after being posted - the traditional date when letters are deemed to have been received in law.  More importantly, however, many employers rely on delivery receipts as acknowledgement of communications but, employers may now need to check exactly who has signed to acknowledge receipt. Alternatively, employers may need to follow up letters with a phone call, or ask for an acknowledgement of receipt within the letter itself. In light of this case many employers may decide it is easier to dismiss someone face to face in order to avoid any uncertainty but employers still need to be careful to avoid “predetermined” decisions.  The best solution may, therefore, be to adjourn the hearing and reconvene a few days later to read a statement prepared in the interim which you can then hand to the employee so that there can be no doubt as to the date of dismissal. 

The next case that we would like to look at this month also revolves around disciplinary action.  In the case of London Probation Board v Lee, the Probation Board tried to change Mr Lee’s role as a form of disciplinary sanction.  This is an option which we are being asked about on an increasing basis but Mr Lee’s case helps to highlight some of the pitfalls and shows what employers need to consider before deciding to impose that sort of sanction.

In Mr Lee’s case, the disciplinary procedure that the London Probation Board had in place at the time did not contain any reference to changing someone’s job as a disciplinary sanction except for demotion as an alternative to dismissal.  The sanction had been imposed in Mr Lee’s case because he had refused to take on new duties and the Probation Board had considered this to be unreasonable.  The Probation Board disciplined him for his unreasonable refusal to adapt and imposed the change as a disciplinary sanction.  Mr Lee appealed against the decision to move him to a different post and submitted a grievance about the change in his duties.  He also continued to refuse to perform the duties that were being required of him.  The Probation Board continued with the disciplinary process and ultimately dismissed Mr Lee for gross misconduct.

The Employment Tribunal held that his dismissal was unfair for a number of reasons.  Amongst other things, the Employment Tribunal considered that the decision to transfer Mr Lee from one job to another had been taken in advance of the disciplinary meeting.  The Tribunal found that the decision was therefore unfair because the outcome of the disciplinary process had been pre-determined.  However, the main point to note in the case was that the decision to transfer him to an alternative post was found to be inherently unfair because it was not something that was permitted under the Probation Board’s disciplinary procedure. 

The Probation Board appealed to the Employment Appeals Tribunal but lost.  They tried to argue that a specific reference to a job change sanction in the disciplinary policy was not necessary because there was a mobility clause in Mr Lee’s contract.  The Probation Board argued that a mobility clause was sufficient to permit the Probation Board to transfer him to a new role.  The EAT disagreed, stating that as evidence presented to the Employment Tribunal clearly established that the reason for moving Mr Lee was to give him a disciplinary sanction the mobility clause argument was irrelevant.  This meant that, in the EAT’s view, the decision to force Mr Lee to move was unlawful and that, as a result, Mr Lee was justified both in his grievance and his subsequent refusal to perform the new duties.

The lessons to be learnt from this decision are that, although demotion and change of job can be effective disciplinary sanctions, unless the disciplinary procedure is drafted in such a way as to permit or accommodate such sanctions at any stage in the disciplinary procedure, imposing a demotion or job transfer could give rise to a constructive unfair dismissal claim.  Alternatively, as here, if an employer then moves to dismiss someone who has refused to perform the new duties, that dismissal will be unfair.  Employers who are attracted by the idea of such sanctions or who already use them, should review their disciplinary procedures to make sure that the policy in place allows such transfers or demotions to take place.

Finally, we want to draw your attention to an interesting disability discrimination case.  In SCA Packaging v Boyle, the House of Lords have once again addressed and refined the definition of disability as used in the Disability Discrimination Act 1995 (“DDA”).

Mrs Boyle was a stock controller for SCA.  She suffered from a throat condition which was controlled by following a strict regime involving regularly drinking water, refraining from raising her voice or singing, avoiding background noise and passive smoking and exercising regularly.  Mrs Boyle had undergone an operation to remove some vocal nodes and the problems with her throat had not returned since the operation but Mrs Boyle believed that this was because of her strict adherence to the regime suggested by her doctors.  This was supported by the fact that Mrs Boyle had been warned by medical experts that if she stopped following their recommendations then her throat condition was likely to cause substantial adverse effects to her health and lifestyle.

Approximately eight years after the operation, SCA decided to change the internal structure of the building.  This involved taking down the partition separating Mrs Boyle’s office from the stock room.  Mrs Boyle complained that the increased noise would affect her health.  SCA Packaging disagreed and went ahead with the change.  Mrs Boyle left the company complaining of constructive dismissal, disability discrimination and other matters.  SCA disputed that she was disabled because they had understood that she had been cured by the operation. 

Under the DDA, a person is disabled if, amongst other things, they suffer from a  condition which is likely to have a substantial adverse effect if corrective measures are not taken and/or if there is a likelihood of a recurrence of the condition at some point in the future.  In this case, the dispute centred on the meaning of the word “likelihood”.  Previous case law had suggested that it meant a 51% chance of something happening.  However, the House of Lords in Mrs Boyle’s case has rejected this approach.  They felt that the phrase should be interpreted as meaning “could well happen” rather than “more likely than not”.  This is a much lower standard of proof. 

The House of Lords decided in Mrs Boyle’s case that where someone was following a particular course of treatment on medical advice, the employer should assume that, without that treatment, the impairment was likely to re-occur and that the person is, therefore, covered by the DDA.  Equally, an employer should assume that, if the impairment substantially affected an employee before the employee had treatment, if the condition were to re-occur then the effect would be substantial the second time round as well.

This decision has important implications because it lowers the threshold for employees wanting to establish that they are disabled.  For employers, it is another example of how it is safer to assume that somebody is disabled and to make reasonable adjustments accordingly whenever an employer has knowledge of a prior significant medical condition.  The case should also serve as a reminder that conditions can be concealed by appropriate treatment and that, whenever concerns are raised by an employee, the safest course of action is to seek medical advice however bizarre the claims sound at first.

Aug 09

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