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Employment Law & HR Update - December 2018

Employment Law & HR Update - December 2018

In the team's last update of 2018, case law updates on: employment status, gross misconduct, disability discrimination and dismissals.

Is an Employment Tribunal entitled to use a “realistic and worldly wise” approach to determining employment status?

Yes, decided the Employment Appeal Tribunal (EAT) in the case of Addison Lee – v – Lange & others.

The claimants in this case were all private hire drivers, who entered into an agreement to hire liveried cars from a company associated with Addison Lee.

As part of the agreement, the drivers were required to log into a portable computer, known as an XDA. Once this process was completed, work was allocated to them automatically through the XDA device and they were required to provide reasons if the work was refused by them, otherwise it would result in sanctions being imposed on them.

The contractual documents described each claimant as being an independent contractor, rather than being employed as either an employee or a worker. However, the Employment Tribunal decided that they were workers, which meant that they were entitled to certain rights, such as a right to paid holiday, which would not apply if they were self-employed independent contractors.   

The company appealed to the EAT against the Tribunal’s findings that each individual was a worker. The company argued that the Tribunal had incorrectly disapplied parts of the contractual agreement and had wrongly concluded that there was an obligation on the drivers to do some work.

The EAT rejected the appeal. It decided that the Employment Tribunal had correctly applied a “realistic and worldly wise” approach and had been entitled to reach its conclusion that the drivers’ written contracts did not reflect the reality of their situation and that the reality was that they were workers.

In categorising a case as gross misconduct, should disciplinary allegations be considered individually and in isolation?

No, decided the High Court in the recent case of Ardon – v – Sussex Partnership NHS Foundation Trust.

This case concerned an NHS Trust, which had undertaken an investigation into allegations concerning a doctor. The allegations were that the doctor had kept poor records and had also committed failures in respect of the care provided to a young prisoner, who committed suicide. It was alleged that the doctor had failed to meet the required professional standards of good practice and the Trust wished to proceed with a disciplinary process, which could lead to a finding being made against the doctor of gross misconduct.

The doctor obtained a temporary injunction from the Courts which paused the disciplinary process and this injunction was put in place because the doctor argued that the disciplinary process should not be allowed to go ahead with a potential finding of gross misconduct.

The High Court then had to consider whether the temporary injunction should be made permanent. The key issue was whether it would be a breach of contract for the NHS Trust to proceed with the disciplinary process with that process potentially leading to a finding of gross misconduct. Were the  allegations against the doctor such that while the Trust could proceed with the disciplinary process, it could only do so if it made clear that that process could not lead to a finding of gross misconduct?

The doctor argued that in considering whether there had been gross misconduct, each allegation had to be looked at in isolation.

The High Court disagreed with the doctor’s view and said that in deciding whether the doctor had been guilty of gross misconduct, the Trust should take a cumulative view of all the allegations. On this basis, the High Court said that it was right that a potential outcome of the disciplinary process was a finding of gross misconduct and therefore decided that the injunction should be removed and the disciplinary process allowed to continue.

Was it right to dismiss a disability discrimination claim on the ground that a manifestation of the claimant’s disorder was the excluded condition of a tendency to steal?

Yes, decided the Employment Appeal Tribunal (EAT) in the case of Wood – v – Durham County Council.

Mr Wood went to Boots the Chemist and left the shop without paying for the items he had placed in his bag. Ultimately, this led to Mr Wood’s dismissal by the Council and Mr Wood argued that he suffered from post-traumatic stress disorder (PTSD) and dissociative amnesia and that these conditions had led to him acting as he had done. He argued that those conditions were a disability and consequently claimed in the Employment Tribunal that the Council had dismissed him because of something arising from his disability and that this was therefore unlawful disability discrimination.

Regulation 4(1)(b) of the Equality Act (Disability) Regulations 2010 states that a tendency to steal is an excluded condition and so cannot amount to a disability. The Employment Tribunal decided that while Mr Wood had a mental impairment of PTSD and was therefore disabled, his dismissal arose out of his tendency to steal, although that tendency to steal was a manifestation of his mental impairment. The Tribunal concluded that since the cause of Mr Wood’s dismissal was the excluded condition (his tendency to steal), then his disability discrimination claim could not succeed.

Mr Wood appealed to the EAT, but the EAT decided that the Tribunal was correct. The manifestation of Mr Wood’s PTSD and dissociative amnesia was a tendency to steal and the dismissal arose out of that tendency. Therefore because of Regulation 4(1)(b), the dismissal was not unlawful disability discrimination.

Is there an implied term in an employee’s contract that their employer will not dismiss them for incapability if that dismissal would prevent the employee from being entitled to long-term disability benefits?

Yes, according to the Employment Appeal Tribunal (EAT) in Awan – v – ICTS.

Mr Awan commenced employment with American Airlines (AA) as a security agent at Heathrow Airport. He was contractually entitled under his employment contract to the benefit of a long-term disability benefit plan. The terms stated that benefits would end if the employee ceased to be employed by AA.

Mr Awan suffered from depression and subsequently went on sick leave. AA outsourced the security department to ICTS and this meant that the employer’s obligations under the plan transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) to ICTS.

Mr Awan was dismissed by ICTS for reasons of capability. The Employment Tribunal decided there was no bar under Mr Awan’s employment contract to prevent ICTS from dismissing Mr Awan, even where the effect of the dismissal was that Mr Awan was then prevented from claiming benefits under the disability benefit plan.

However, the EAT disagreed and decided that a term should be implied into Mr Awan’s employment contract to the effect that once an employee has become entitled to payments of disability income under a long-term disability plan, the employee cannot then be dismissed because of his or her continuing incapacity to work if the dismissal would mean that the employee is then deprived of those payments.

For more information

For more information on how these cases affect your business, contact Burnetts' Employment Law & HR team here.

About the author

Sophie Allinson profile photo

Sophie Allinson

Sophie is a Solicitor in the firm's HR & Employment team.

Published: Tuesday 11th December 2018
Categorised: Commercial Client, Employment, HR, Legal Services in Newcastle, Penrith, West Cumbria

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