Employment Law Newsletter - Jan 2014 | Davis Blank Furniss Solicitors

Welcome to our January 2014 Employment Law Newsletter, keeping you up to date with changes in employment law and informing you of recent case law developments.


Unfair Dismissal – Ill-Health Absence

Dismissing employees on the grounds of ill health is never easy.  The Court in DF -v- Dundee City Council has clarified now set out as to what is the most critical question to ask when deciding to dismiss on the grounds of ill-health.

The critical question is “whether any reasonable employer would have waited longer before dismissing the employee”.

Each case will obviously turn on its own facts, however the relevant factors would include the size of the organisation, whether an employer is able to call on temporary staff, whether the individual has exhausted their sick pay, whether reasonable steps have been taken to discover the employee’s medical condition and likely prognosis.

A Tribunal would also take into account whether the employee had been consulted with and what the employee’s views were, and whether they were properly balanced with medical professional opinion. As with any other dismissals it is crucial that there is a paper trail demonstrating the steps taken by an employer, the evidence and information, including minutes of meetings held, which led to dismissal on the grounds of ill-health.

Holiday Pay and Commission Payments

The Advocate General in the CJEU case of ZJR Lock -v- British Gas has held that commission should be taken into account when calculating holiday pay. The worker was a sales man who received a basic pay and commission. His commission was based on sales that he achieved and differed from month to month. He took two weeks annual leave over Christmas, during which time he was unable to make any sales. In calculating his holiday pay, his employer only took into account his basic pay.

The Advocate General stated that the commission was intrinsically linked to the performance the individual undertook and therefore should be taken into account when calculating holiday pay. However the Advocate General left it for the National Courts to decide on the mechanism for determining the appropriate amount of commission to include. We will have to wait for further decisions or guidance on this.

Religious Discrimination Sunday Working

The Court of Appeal has held in Mba -v- London Borough of Merton that a belief that Christians should not work on a Sunday was not a “core” part of Christianity. The particular employee was a care assistant in a children’s home and was of the belief that, as a Christian, it was wrong to work on a Sunday. She failed to attend on a Sunday she had been rostered to work, following which she was disciplined. She resigned alleging religious discrimination.

The Court of Appeal held that what mattered was whether the employee had a sincere belief which was held by some Christians whilst two of the Judges actually went further and held that it was wrong to consider whether the individual’s belief was shared, what mattered was whether it was sincere. However on the facts of this particular case the Judges held that it was proportionate to require the particular employee to work on a Sunday and therefore she was not successful in her claim for religious discrimination. Again you should proceed with caution as each case is likely to turn on its own facts.

Disability Discrimination and Knowledge of Disability

This case will come as a stark warning to employers. The Court of Appeal has held in Gallop -v- Newport City Council that an employer cannot rely only on an Occupational Health Report when deciding whether the employee is disabled. You will all be familiar with your duty to make reasonable adjustments for a disabled employee which only arises when you as the employer know or are reasonably expected to know that an employee is suffering from a disability and as a result is likely to be placed at a substantial disadvantage. Assessing whether an employee is disabled can be difficult and even more so in cases of mental illness. The case was decided under the previous Disability Discrimination Act 1995.

Mr Gallop was suffering from depression brought on by work-related stress. However following the findings of an Occupational Health Report, which concluded that Mr Gallop’s medical condition did not meet the legal definition of disability, he was dismissed. He was successful in his claims for unfair dismissal but not for disability discrimination in both the Employment Tribunal and the Employment Appeal Tribunal. Both the Tribunal and EAT decided, that after the findings of the Occupational Health Report, the employer did not know that the employee was disabled.

However these decisions were overturned by the Court of Appeal which stated that, although an employer should correctly seek assistance and guidance from an Occupational Health Report or other medical expertise, it is for the employer to make a factual judgment as to whether or not the employee is disabled and employer cannot “rubber stamp” an external opinion. It is clear therefore that employers cannot just turn a blind eye to the facts before them.

Agency Workers Regulations 2010

The EAT has held in Moran -v- (1) Ideal Cleaning Services Limited and (2) Celanese Acetate Limited that the Agency Workers Regulations 2010 do not apply to agency workers placed with an end user indefinitely.

The EAT held that the Regulations would only apply to workers supplied by a temporary work agency to work temporarily for the end user. It was made clear that the term “temporary” means not permanent. A permanent contract is one which is indefinite, whereas a temporary contract would be one that would be terminable upon a condition being satisfied. In this case the Claimants had worked for the Second Respondent for between 6 and 25 years until they were made redundant.

Disciplinary Hearings and High Court Injunctions

The Supreme Court in the case of West London Mental Health NHS Trust -v- Chhabria intervened to restrain an employer from requiring an employee to face a charge of potential gross misconduct at a disciplinary hearing.

The Appellant was a Consultant Forensic Physiatrist. The Trust’s Case Manager intended to raise allegations of gross misconduct under the Trust’s disciplinary policy. The Appellant sought an injunction against this course of action from the High Court alleging that the evidence did not amount to gross misconduct. The High Court agreed with the Appellant going as far as saying the evidence against the Appellant event at its worst would not amount to gross misconduct.

Interestingly the Court went on to comment on the involvement of the HR Advisor.  The Court held that the HR Advisor had gone beyond his remit by suggesting extensive amendments to the investigation report which had the effect of strengthening the criticism of the Appellant within the report. The Court held that an HR Advisor could advise on questions of procedure ensuring that all necessary matters had been addressed or where necessary achieving clarity. However it was not part of an HR Advisors remit to guide the report’s conclusions. This was regarded by the Court as breach of an implied contractual right to a fair disciplinary process.

Wishing you a Happy and prosperous New Year!


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