Employment Law & HR Update - October 2018
Sophie Allinson discusses employee disabilities, notices, dismissal meetings and employers' liabilities in her October 2018 Employment Law and HR update.
Is an employer deemed to have knowledge of an employee’s disability if the employee has denied having one?
No, according to the Employment Appeal Tribunal (EAT) in the case of Mutombo-Mpania – v – Angard Staffing Solutions Limited.
The claimant worked for an organisation providing casual staff to the Royal Mail Group. During the recruitment process, he did not disclose that he had a disability on his application form and he also failed to disclose that he had a disability on a health form when he started his job.
When he ended up bringing a claim of disability discrimination against his employer, the Employment Tribunal had to decide if he had a disability and also had to decide whether, if he did have a disability, his employer either knew about that disability or ought reasonably to have known. If the employer did not know and could not reasonably have known about the disability, then the claim could not succeed.
The Employment Tribunal found in favour of the employer and so the claimant appealed to the EAT.
The burden of proof in a disability discrimination claim is on the claimant to prove that he or she has a disability, as defined in the Equality Act 2010. This means that he or she has to show that they have an impairment, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
The EAT decided that because Mr Mutombo-Mpania had failed to provide evidence that his impairment had resulted in a substantial adverse effect on his ability to carry out normal day-to-day activities, then the Employment Tribunal had been entitled to conclude that he had not shown that he had a disability.
The EAT also decided that the Employment Tribunal’s decision that the employer could not have been expected to know about any disability Mr Mutombo-Mpania had (if indeed he had one) was a reasonable one. Taking into account all the circumstances, including the application form and the health form, the Tribunal’s decision was reasonable and one that it was entitled to reach.
Does giving notice amount to an unambiguous act of resignation?
That depends, according to the Employment Appeal Tribunal (EAT) in the case of East Kent Hospitals University NHS Foundation Trust – v – Levy.
The claimant, Ms Levy, worked as an administrative assistant in the trust’s records department. Subsequently, she was offered, subject to certain conditions, a role in the radiology department. She responded with a letter stating: “please accept one month’s notice from the above date”.
Shortly afterwards, the conditional offer was withdrawn and Ms Levy said that she wished to retract her notice. However, the employer refused and argued that her employment had terminated because she had resigned. Ms Levy then brought a claim for unfair dismissal.
The Employment Tribunal’s decision (which was upheld by the EAT) was that Ms Levy’s intention was unclear and that, in all the circumstances, the meaning of her words was ambiguous. She had been offered another position within the radiology department and in those circumstances her letter could have been taken to mean that she only wished to resign from her current department. Because of this ambiguity, the Employment Tribunal then assessed, on an objective basis, how a reasonable recipient would have understood Ms Levy’s words. The Tribunal concluded that the reasonable recipient would have decided that Ms Levy’s intention was only to make an internal move from the records department to radiology and was not to resign from her employment with the trust. The EAT saw no reason to overturn the Tribunal’s conclusion that Ms Levy had not resigned from her employment.
Employers would therefore be well advised to check an employee’s intentions when they appear to give notice.
Is it necessary to hold a meeting with an employee before dismissing them for some other substantial reason?
Once again that depends, said the Employment Appeal Tribunal (EAT) in the case of Hawkes – v – Ausin Group (UK) Limited.
Mr Hawkes was a reservist for the Marines and he voluntarily signed on for a seven-week overseas call up. However, his employment contract only permitted a week’s unpaid holiday per year for his reserve duties. He informed his employer that he would need seven weeks’ leave in order to complete the call up, but when his employer found out that the call up was not obligatory, they told Mr Hawkes that they did not want him to go ahead with it.
Nevertheless, Mr Hawkes decided to proceed and when his employer found out, it required him to a meeting, at which he was dismissed.
The EAT said that this was not a misconduct case where it would usually be necessary for the employer to hold a meeting with the employee to listen to what he had to say before deciding whether or not to dismiss. Mr Hawkes was dismissed for ‘some other substantial reason’ and the EAT said that it was open to an Employment Tribunal to decide that an earlier meeting with him would have been unnecessary, due to Mr Hawkes’ commitment to see the call up process through. The fact that no such earlier meeting was held did not make his dismissal unfair.
However, employers should be very wary of relying on this case, as the EAT’s judgment was based on the specific facts of Mr Hawkes’ situation. It would be very risky to assume that the EAT’s judgment means that employers can safely dismiss without following a proper process, involving holding a proper hearing before deciding whether or not to dismiss.
Could an employer be vicariously liable for an injury caused by one employee to another at an impromptu work afterparty?
It’s possible, according to the Court of Appeal in the case of Bellman – v – Northampton Recruitment Limited.
Mr Bellman was a sales manager for a recruitment company and Mr Major was the company’s managing director. Both of them attended a company Christmas party and Mr Major then arranged taxis to transport staff to a hotel, where they attended an afterparty. The majority of the staff were drinking alcohol, which in the main was paid for by the company.
During this afterparty, an argument occurred regarding a new employee’s placement and terms. When Mr Major then began to lecture staff about his authority, Mr Bellman questioned Mr Major’s decisions and Mr Major punched him, causing him to suffer significant brain damage.
The question for the Court was whether or not the company was vicariously liable for Mr Major’s actions, despite the fact that they took place at an afterparty rather than at the official company party. The Court of Appeal decided that the company was liable for Mr Major’s conduct and decided that there two key issues. Firstly, the nature of Mr Major’s job and secondly whether there was a sufficient connection between Mr Major’s job and his wrongful conduct to make it appropriate for the company to be vicariously liable for what he did.
The Court of Appeal considered that Mr Major was the company’s most senior employee and at the party he was wearing his metaphorical managing director’s hat and asserting his authority in that role. Furthermore, the afterparty was not solely a social event. It was an event involving colleagues and followed on from an organised work event, attended by most of the company’s employees. Additionally, the company paid for taxis and drinks.
In this context, there was a substantial connection between Mr Major’s wrongful conduct and his role and therefore the company was vicariously liable for his actions.
For more information on these cases and how they affect your business, contact Sophie Allinson here.
About the author
Sophie is a Solicitor in the firm's HR & Employment team.