Happy New Year to those we have not spoken to yet this year. Although the festive season already feels like many moons ago and the Easter break is far away on the horizon, you will no doubt be kept occupied by thoughts of Brexit’s impending impact on businesses and the latest policies from across the Atlantic Ocean! We will in the meantime continue to update you with the latest employment cases and legislation throughout the year. In the last month the EAT has been working hard to consider some key matters from the enforceability of settlement agreements to dismissals for gross misconduct, please read on for further information.
Bringing a Claim after Signing COT3
The EAT held that a second claim for disability discrimination could be brought by an employee even though a COT3 form had been used to settle the employee’s earlier claim. In the case of Department of Working Pensions v Brindley (17 November 2016) the employee brought a second claim for disability discrimination against her employer, the facts surrounding the second claim related to different circumstances that arose during the same timeframe as the first claim.
The EAT looked at the specific wording of the COT3 and found that it settled all claims arising from the circumstances set out in the employee’s first claim but did not settle any claims outside of those facts (even if it covered the same timeframe).
This case works as a helpful reminder when entering into a COT3 or other Settlement Agreement – both parties should take time to consider exactly what it is they are agreeing to settle and make sure it is expressly covered.
Is Type 2 Diabetes a Disability?
In the case of Taylor v Ladbrokes Betting and Gaming Ltd (16 December 2016) the EAT held that the Employment Tribunal had failed to properly consider whether Type 2 Diabetes was a progressive condition amounting to a disability under the Equality Act 2010.
The Tribunal erred in focusing on the claimant’s health in the timeframe during which the act of discrimination occurred without considering the future. The medical evidence was also deemed not sufficient.
The claim has been sent for a rehearing and it will be interesting to see how the Tribunal apply this decision. For now is it unclear whether Type 2 Diabetes will amount to a disability under the Equality Act but the case has provided us with some fresh guidance on how to interpret whether a particular condition will be considered a disability.
Mobility Clauses in Employment Contracts
The Employment Appeal Tribunal in Kellogg Brown & Root (UK) Ltd v (1) Fitton UKEAT/0205/16 and (2) Ewer (21 November 2016) had to consider appeals on a number of points including whether a mobility clause in a contract of employment allowed the employer to insist on a permanent move to another location. The mobility clause outlined the employee’s current place of work adding that the employee can be asked to work at other locations ‘unless exceptional circumstances prevail.’
The claimant’s were asked to move from their usual place of work in Greenford to Leatherhead as the Greenford office was being closed down with a number of staff being made redundant, both claimants refused to move and were subsequently dismissed. They brought claims for statutory redundancy payment on the grounds that the real reason for dismissal was redundancy and also for unfair dismissal.
The EAT found that it was not a redundancy as the employer genuinely believed they could rely on the mobility clause to insist on the employees moving to Leatherhead. It was however unfair dismissal as the contractual clause was insufficient to allow this course of action.
This case provides guidance on how the courts will interpret mobility clauses and the care that should be used both when drafting and relying on them in practical scenarios. From an employers perspective It is useful to seek advice before using such clauses particularly if you are dealing with potential redundancies.
Considering Expired Warnings in a Dismissal
The EAT in Stratford v Auto Trail VR Ltd (31 October 2016) had to consider whether dismissal for gross misconduct using expired warnings could be fair. The employee in this case committed an act that would normally only attract a final written warning, he had no current warnings but he did have a long disciplinary record. The employer considered the passed misdemeanours and found that the employee should be dismissed for gross misconduct.
The Tribunal and the EAT upheld this decision.
The ability to use an employee’s past record is dependant on the facts of a particular case. The key here from an employers perspective is to take care (and advice) when considering dismissing on such a basis and to minimise ambiguity in the workplace by taking time to configure the disciplinary policies and procedures clearly communicating the same to the staff. The normal position is that you should not take into account expired warnings.
In other news…
Number of Claims Increased
The Tribunal Quarterly Statistics published in December last year for July to September 2016 show an increase in single claims by 2% and multiple claims by 45% compared to this period in 2015.
A translation agency is trying to recruit a translator of emojis – this unusual job position is indicative of the world today and the increased use of text messages as evidence in Tribunal claims.
If you require any further clarification in relation to the above developments, or if you need any further assistance then please do not hesitate to contact our team of specialist employment solicitors on 0161 832 3304.
This newsletter does not provide a full statement of law and readers are advised to take legal advice before taking any action based on the information contained herein.