Burnetts logo

Employment Law & HR Update - November 2018

Employment Law & HR Update - November 2018

In her November update, Sinead McCracken reviews recent cases on whistleblowing, harassment, disability discrimination and disciplinary processes.

Can an individual be personally liable for a whistleblowing dismissal, along with the employer, under the Employment Rights Act 1996?

Yes, said the Court of Appeal (CoA) in Timis – v – Osipov.

The claimant, Mr Osipov, was dismissed on the recommendation of two directors of the company which employed him, Mr Timis and Mr Sage.

The Employment Tribunal said that he had been unfairly dismissed by the company, because he had been dismissed for making protected disclosures – ‘whistleblowing’.

The Tribunal also concluded, however, that by their conduct surrounding the claimant’s dismissal, Mr Timis and Mr Sage had subjected Mr Osipov to a detriment.

Although unfair dismissal claims can only be brought against the employer (which, in this case, was the company), the whistleblowing provisions of the Employment Rights Act also protect workers from being subjected to a detriment by fellow workers who work for the same employer.

The Tribunal found that Mr Timis and Mr Sage were therefore personally liable (in addition to the company also being liable) to compensate the claimant for his losses which flowed from his dismissal.

The CoA upheld the Tribunal’s decision. Although the unfair dismissal claim could only be made against the employer, this does not relieve a fellow worker of personal liability for a detriment carried out by them and resulting in a dismissal. The detriment claim can be brought against the fellow worker and also against the employer.

Was calling an employee a “fat ginger pikey” harassment?

Not based on the facts in this case, according to the Employment Appeal Tribunal (EAT) in Evans – v – Xactly.

The claimant, Mr Evans, was employed as a sales representative for less than a year when he was dismissed for poor performance. He brought multiple claims, including discrimination and victimisation on the grounds of disability and race. These were rejected by the Employment Tribunal on the basis that the employer’s reason for dismissal was genuine.

However, Mr Evans also brought a harassment claim on the grounds he had been called “a fat ginger pikey” on at least one occasion. He was diabetic and was sensitive about his weight (although his colleagues did not consider him fat) and he had strong ties to the traveller community.

The Tribunal understood that at face value the comment was a potentially discriminatory and harassing comment to make. However, the Tribunal looked at the comment within the context in which it was made. The office culture included good-natured taunts and teasing amongst the competitive sales team and also found that Mr Evans did not take offence at the time the comment was made. The Tribunal decided that the comment did not amount to harassment.

The EAT decided that the Employment Tribunal was entitled to reach this conclusion, given that harassment claims are highly fact sensitive and context specific.

However, employers should be cautious about this decision. Very often, comments made by employees to one another and which are claimed simply to be “banter” will be regarded by Employment Tribunals as amounting to unlawful harassment. 

Did an Employment Tribunal fail to apply the correct test when using the words “necessarily predicting” in assessing disability?

No, according to the Employment Appeal Tribunal (EAT) in Martin – v – University of Exeter.

A preliminary hearing was held to determine the date on which the claimant’s disability began and when it became long-term for the purposes of the Equality Act 2010. The claimant suffered from post-traumatic stress disorder (PTSD) as a result of witnessing, by chance, a student attempting to hang himself.

In deciding whether he had been subjected to disability discrimination, it had to be decided whether the PTSD was a disability at the time the alleged act of discrimination occurred. At the time of that act, did the PTSD have a long-term and substantial adverse effect on Mr Martin’s ability to do normal day-to-day activities? In deciding whether the adverse effect was long-term, it was necessary to look at whether it had already lasted at least 12 months or, if not, then whether it was likely to do so. 

Previous case law has confirmed that where an impairment has not already become long term, then it must be assessed predictively. A claimant cannot rely on the fact that they have been impaired for a year by the time of the Employment Tribunal hearing. The test is whether the impairment was long-term at the time the alleged discrimination occurred.

If the impairment had not already lasted 12 months by that time, then the next test is whether, at the time of the alleged discrimination, the impairment was likely to be long-term. Was it an impairment that was likely to last at least 12 months? The relevant test to determine this is that “it could well happen”, according to previous case law.

The Employment Tribunal made reference in its judgment to “necessarily predicting” the duration of the impairment, but did not mention the relevant test of “it could well happen”. The claimant argued that the Tribunal had applied the incorrect test in deciding whether he was disabled.

In response, the EAT said that the test had been correctly applied, even though it was not explicitly mentioned in the Employment Tribunal’s judgment. The wording “necessarily” was used very loosely and in a colloquial way.

Was it unfair for an employer to withhold certain evidence from a disciplinary process?

Not according to the facts in Hargreaves – v – Manchester Grammar, decided the Employment Appeal Tribunal (EAT).

The claimant, Mr Hargreaves, was a teacher with an unblemished record. Allegations emerged that he had grabbed a pupil, pushed him against a wall and put his fingers down his throat. Mr Hargreaves was dismissed by a disciplinary panel and an Employment Tribunal decided that the dismissal was fair.

Mr Hargreaves appealed to the EAT. He argued that his employer’s investigation had been inadequate in light of the impact which the allegation would have on his career. Additionally, he argued that his employer had failed to disclose to the disciplinary panel evidence from potential witnesses who confirmed they had not seen anything.

However, the EAT dismissed the appeal. They said that the employer had correctly conducted itself taking into account the higher standard of investigation which may be expected in view of the seriousness of the allegation. The EAT also decided that the employer’s decision not to disclose to Mr Hargreaves and the disciplinary panel details of the interviews with witnesses was not unreasonable in the circumstances. The Employment Tribunal was correct to conclude that the employer had reasonably formed the view that the excluded evidence was immaterial and could not assist.

Overall, the Employment Tribunal was entitled to conclude that the employer had conducted a fair investigation and that the dismissal was fair.

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

About the author

Sinead McCracken profile photo

Sinead McCracken

Sinead McCracken is a trainee solicitor at Burnetts.

Published: Monday 12th November 2018
Categorised: Employment, HR, Legal Services in Newcastle, Penrith, West Cumbria

All Factsheets