Employment Law E-Bulletin Issue 14

Contents

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Obese employee was disabled: Walker v Sita Information Networking Computing Ltd UKEAT/0097/12 (EAT)

The Employment Appeal Tribunal (EAT) has held that a claimant suffering from a number of physical and mental conditions relating to obesity was disabled under the Disability Discrimination Act 1995 (“the Act”) (now repealed and replaced by the Equality Act 2010).

The Claimant (C) suffered from a number of obesity related problems. The symptoms were regarded as functional overlay (a psychological condition which has caused or aggravated physical symptoms), accentuated by C being obese at 21.5 stones. He brought a disability discrimination claim against his employer.

At the employment tribunal, there was evidence from an occupational health specialist who decided that a significant part of C’s symptoms were played by “a functional/behavioural component” and he had not been able to identify a physical cause.

The Judge therefore held that because no physical or mental cause could be identified, there was no disability within the Act.

C appealed. The EAT considered the meaning of the word ‘impairment’. Emphasis was placed not on the cause of the impairment, but the evidence proving that it existed. The significance is evidential not legal; if there is no evidence of an impairment, it is up to the Tribunal to conclude that the claimant does not suffer from it based on the evidence before it.

The EAT held that the Judge had been wrong to focus on the physical element of the disability; it was accepted that C had been physically and mentally affected for some time and this amounted to a disability under the Act.

Points to take from the case:

When considering whether an employee is disabled under the Act (now the Equality Act 2010), the existence of an impairment should be considered rather than the cause.

Obesity itself will not render a claimant disabled under discrimination legislation, but it might make it more likely that they are. The EAT gave the example of an obese woman; if it got to the stage where she was unable to walk 50 yards without having to rest, it would be her inability to walk that should be considered in light of the Act, not the obesity itself.

If employers are considering taking any disciplinary action against employees who are obese, it would be prudent to consider whether there are any health conditions which could amount to a disability before doing so.

Increases to statutory sick pay and maternity, paternity and adoption pay

As of 6 April 2013, Statutory Sick Pay is £86.70 (up from £85.85).

As of 7 April 2013, the weekly rate of Statutory Maternity Pay, Statutory Paternity Pay and Statutory Adoption Pay  is £136.78 (up from £135.45).

Recruitment of replacement employee led to a redundancy situation: Malekout v Ahmed and other (t/a The Medical Centre) UKEAT/0556/12 (EAT)

The EAT has considered whether there was a redundancy situation where a new employee had already been recruited to replace the redundant one.

Mr Malekout (M) worked for the Respondents (R), a medical practice, as a practice manager, and was responsible for non-clinical administration matters. M communicated to R through a letter, that he wished to discuss his employment and informed R that he had been offered another job elsewhere.

R feared that M would leave and they would be left without a practice manager. R therefore hired Mr Kader (K) on a short term basis to act as a ‘trouble shooter’ and to make sure that the practice was covered in the event that M left. K assumed a lot of M’s responsibilities and began to work four days a week.

In the course of K dealing with M’s duties, it became apparent that M had not been completing certain tasks. This was pointed out to M in an appraisal. M then went on sick leave, and the practice undertook a restructure. Two weeks later M was dismissed by reason of redundancy.

M brought a claim for unfair dismissal, as well as age discrimination, unclaimed holiday pay and a failure to provide written particulars of employment.

On the subject of unfair dismissal, the employer’s case was that M had been dismissed by reason of redundancy.

The tribunal found that there had been no genuine consultation with M and that the dismissal had been unfair. However, they found that had a proper and fair procedure been followed M’s dismissal, in light of the lost trust and confidence with R and his failings in his duties (which had also emerged), was inevitable. Therefore the tribunal applied a 100% Polkey deduction resulting in nil compensation to M.

M appealed. The EAT upheld the tribunal’s decision, and found that K had been employed because of a concern that the practice would be left without a practice manager. This left the practice with two people in the same position, when there was only a need for one. This was a redundancy situation.

Points to take from the case:

Generally, tribunals try not to interfere with an employer’s assessment of a redundancy situation; however they must be certain that redundancy is the real reason for dismissal. The ‘real’ reason is a question of causation and will depend on the circumstances.

Though, initially this case may seem to be have concerned a capability issue, the tribunal here adopted a narrow approach to causation. However, this does not mean that the tribunal will always adopt such a limited view and employers should be clear as to the reason for dismissing an employee. They should not think this case is a mandate to employ another person in a similar position with an intention to dismiss the first.

Only DBS application forms to be accepted for criminal record checks

As of 28th March 2013 the Home Office will no longer accept old style Criminal Record Bureau (CRB) application forms. This follows the merger of the CRB and the Independent Safeguarding Authority (ISA) in December 2012, to become the Disclosure and Barring Service (DBS).

Now the Home Office will only accept DBS application forms.

Reason for dismissal was redundancy: Fish v Glen Golf Club UKEAT 0057/12 (EAT)

The EAT considered the principal and real reason for a redundancy where there were other factors at play, including the employee’s conduct and capability.

When an employee is dismissed, the employer must show a potentially fair reason for their dismissal. Where a reason is less clear (as above in Malekout), it is for the tribunal to decide whether the employer’s stated reason was the principal and real reason, or whether it was something else.

Mr Fish (F) was employed between 1998 and 2008 as secretary of the Glen Golf Club (the Club). The Club began to struggle financially. It appointed a consultant who recommended a substantial reduction in its salary bill.

F was informed on 11 April 2008 that he was being made redundant along with three other employees. At the same time, the position of office manager was created and advertised. F failed to apply for the job within the deadline and was therefore not considered.

F appealed the dismissal unsuccessfully and then claimed unfair dismissal. It subsequently came to light that there were two versions of the consultant’s report. An earlier version was highly critical of F’s performance.

The employment tribunal and then the EAT both held that the principal reason for F’s dismissal was the redundancy, and the criticisms of him were background to the dismissal rather than the cause of it. The EAT stated, “It is for the industrial tribunal in each case to see whether, on all the evidence, the employer has shown them what was the reason for the dismissal”.

The EAT decided that the tribunal had not erred in identifying redundancy as the principal reason for dismissal.

Points to take from the case:

Even when there is a redundancy situation it doesn’t necessarily mean that the reason for a dismissal is redundancy. It will come down to a question of fact to be decided on the evidence.

Where there is potentially more than one reason for dismissal, or the principal reason is not clear, it will for the tribunal to discern the true cause.

Although, it seems, from this case and that of Malekout above, that tribunals may not concentrate too much on questions of causation where redundancy is one of two or more plausible reasons for redundancy, employers should beware of trying to engineer sham redundancies when another reason lies at the heart of the decision to dismiss.

Changes to collective redundancy consultation

On 6 April 2013 the rules on collective redundancy consultation, where 100 or more employees are affected, changed as follows:

the minimum period before the first redundancy can take effect has reduced from 90 days to 45 days after a consultation starts;

employees on fixed term contracts are excluded from the collective redundancy regime unless their contracts are terminated before the end of the fixed term;  and

the period for lodging a form HR1 has reduced from 90 days to 45 days before the first redundancy takes effect.

Acas have published a non-statutory guide aimed at employers which explains legal obligations and how employees should run a collective redundancy consultation.

For further information, please contact Keith Land on the details below.

Keith Land
Partner
Tel: 0191 226 4892
Email: keith.land@sintons.co.uk

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