Employment Case Law Update - April 2017
This month's update from Natalie Ruane investigates notice of termination, indirect discrimination and long-term absence dismissals.
Newcastle Upon Tyne NHS Foundation Trust v Haywood - Timing of Notice of Termination
The Court held that where an employment contract is silent on when notice is deemed to be given, notice of termination took effect upon actual receipt.
In April 2011, Ms Haywood was told she was at risk of redundancy. She turned 50 on 20 July 2011. Redundancy after her 50th birthday would have entitled her to a considerably more generous pension than redundancy beforehand. Ms Haywood was contractually entitled to be given 12 weeks’ notice, but her contract was silent about how notice was deemed given.
On 19 April 2011, Ms Haywood went on holiday, returning on 27 April. On 20 April, her employer sent notice of termination by recorded delivery and ordinary post and an email to her husband’s email address. She read the notice on her return from holiday.
Although the judges disagreed with each other about the reason why, the majority held contractual notice of termination was given on actual receipt rather than on delivery or any deemed date of receipt. Ms Haywood thus received notice on 27 April and termination took place after her 50th birthday.
Essop and others v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice - Supreme Court: Indirect Discrimination
Indirect discrimination is meant to avoid rules and practices which are not directed at or against people with a particular protected characteristic, but have the effect of putting them at a disadvantage. These important cases have gone to the Supreme Court, where Lady Hale has given useful clarification of the law, together with lots of helpful examples. A key question put to the Court was, in order to succeed with an indirect discrimination claim, is it necessary to establish the reason for the particular disadvantage to which a group is put, compared to another?
The answer was, no, the reason need not be established. The essential element is a causal connection between the provision, criterion or practice (‘PCP’) and the disadvantage suffered, not only by the group, but also by the individual. Lady Hale explains that there are various reasons, or ‘context factors’ why one group may find it harder to comply with the PCP than others. They can be genetic, social, or even another PCP. The PCP does not need to put every member of the group sharing the protected characteristic at a disadvantage. The disparate impact or disadvantage can be established on the basis of statistics. The judgment also makes it clear that there is no shame in a Respondent seeking to justify a PCP – there may well be good reasons why the PCP exists, but a wise employer should monitor the impact of its policies and procedures to see whether modifications to it could lessen the impact on groups with protected characteristics, whilst still achieving the aims of the business.
O'Brien v Bolton St Catherine's Academy – Court of Appeal case on Long Term Absence Dismissals
The Claimant was a teacher who had been assaulted by pupils at the school. She went off sick on grounds of stress/depression and was eventually dismissed. At the time of her dismissal, the Claimant had been absent from work for more than a year and there was no certainty as to when she would return. As the Court of Appeal acknowledged, the Claimant's case that her dismissal could not be justified at that stage was very weak.
But, at her internal appeal hearing, the Claimant produced evidence that she was fit to return to work imminently and, under these unusual circumstances, the failure to take this new evidence into account rendered the dismissal unfair. This finding of the Tribunal was upheld by the Court of Appeal, noting that it was "near the borderline".
The case was directed to proceed to a remedy hearing, at which the Tribunal would have to assess whether the school’s evidence would have supported that the claimant was fit to return to work and if she had returned, would she have been able to maintain her health. This highlights the importance of obtaining medical evidence, in the form of occupational health input at least, before taking any decision to dismiss on health grounds.
For any queries on employment law please contact Natalie Ruane, Joint Head of Employment and HR at firstname.lastname@example.org
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.