Employment Law E-Bulletin Issue 45

• Nayak v Royal Mail Limited UKEATS/0011/15 – Dismissal due to employer’s genuine and reasonable belief that an employee was not permitted to work in the UK was fair
• Private Medicine Intermediaries Limited and others v Hodkinson UKEAT/0134/15 – Raising written concerns with an employee on sick leave was repudiatory breach but not disability-related harassment
• Apprenticeship levy: how will it work?
• Acas guide to help combat sex discrimination in the workplace

Nayak v Royal Mail Limited UKEATS/0011/15 – Dismissal due to employer’s genuine and reasonable belief that an employee was not permitted to work in the UK was fair

Mr Nayak was employed by Royal Mail until his employment was terminated due to the belief that he no longer had the right to work in the UK. When he started working for Royal Mail he held a visa and was granted another one until 1 December 2010. His application for a further visa was initially refused but then passed to the Home Office for further consideration.

In March 2012, Royal Mail sought Home Office confirmation that Mr Nayak was permitted to work in the UK. This was confirmed “on the basis of an outstanding appeal”. In May 2013, Royal Mail wrote to the Home Office again and was advised that, as Mr Nayak’s employment had commenced before 29 February 2008, the Asylum and Immigration Act 1996 meant that no further checks were required, provided that they had been carried out in full when his employment had started. Royal Mail had not done this.

Between December 2013 and May 2014, Royal Mail made more extensive enquires of Mr Nayak. It was told that, as it had been four years since his original application, it was not safe to assume this remained pending and undetermined. Mr Nayak was therefore warned that failure to provide evidence of his immigration status may result in dismissal. A further meeting took place between the parties and the necessary evidence was not provided.

Mr Nayak was dismissed by Royal Mail on 9 May 2014. He brought an unfair dismissal claim on the basis that a reasonable employer would have informed the Home Office of its failure to make appropriate checks at the commencement of employment, and that Royal Mail had followed an unfair procedure by subjecting him to six-monthly checks not required by law.

The EAT dismissed Mr Nayak’s appeal on the grounds that it is well established that an employer’s genuine belief can constitute “some other substantial reason” for dismissal under s.98(1)(b) of the Employment Rights Act (“ERA”) 1996. Royal Mail had taken reasonable steps to investigate the position in the circumstances and their admitted failure to make the appropriate document checks in 2008 had no bearing on the fairness of the dismissal.

If employers are looking to dismiss an employee with at least two years’ service, they must establish one of the five potentially fair reasons for dismissal contained in the ERA. These reasons include a statutory restriction, or “some other substantial reason”. When an employer argues the former, it must be established that continued employment would actually contravene a statutory restriction. It is not enough for an employer to have a reasonable belief that this is the case. However, a genuine and reasonable belief about a breach of a statutory restriction can be sufficient to use “some other substantial reason” as a reason for dismissal, and was in this case. This case is a useful reminder of this distinction.

Private Medicine Intermediaries Limited and others v Hodkinson UKEAT/0134/15 – Raising written concerns with an employee on sick leave was repudiatory breach but not disability-related harassment

Miss Hodkinson was employed by Private Medicine Intermediaries Limited (“PMI”) as a director of sales until she resigned in November 2013. She suffered from thyroid dysfunction and cardiac arrhythmia and PMI accepted that she was disabled under the Equality Act 2010.

In September 2013, Miss Hodkinson returned to work from a period of sick leave and PMI implemented several adjustments to her working conditions, but did not follow a recommendation that her weekly meetings be handled by someone other than her line manager, Mr Green, because they felt that such a formal approach was unnecessary.

In October 2013, Miss Hodkinson went off sick again with work-related depression and anxiety. She said that she had been bullied by Mr Green and PMI’s Managing Director, Mr Munro. As a result, PMI’s CEO, Mr Baldwin, wrote to her asking whether she would like to raise a formal grievance and meet to discuss the issues. Miss Hodkinson said that she was too upset and unwell to do so. Mr Baldwin wrote to Miss Hodkinson once more, asking to meet and identifying six areas of concern which he wanted to discuss.

On 15 November 2013, Miss Hodkinson resigned due to a breakdown in trust and confidence, stating that the timing and nature of the issues raised in Mr Baldwin’s letter were intended to illicit her resignation. She claimed constructive dismissal, discrimination arising from disability, harassment and failure to make reasonable adjustments.

Whilst the tribunal found that Miss Hodkinson had not been bullied or intimidated and that she was not a credible witness, it did hold that Mr Baldwin’s letter, identifying six areas of concern, amounted to an act of disability-related harassment and a breach of the implied term of mutual trust and confidence. This had entitled Miss Hodkinson to resign and consider herself constructively dismissed. The EAT upheld the tribunal’s decision.

This is a useful reminder for employers that if they want to contact employees who are on sick leave, particularly those who are absent with work-related stress and who are aggrieved about their treatment at work, they should think carefully about whether it is necessary. It may be better for an employer to deal with an employees’ grievance issues first before addressing any other work-related concerns. This will, however, depend on the nature of the concerns, but employers should proceed cautiously in such situations.

Apprenticeship levy: how will it work?

The apprenticeship levy will apply to all UK employers who have annual pay bills of more than £3million, meaning it will affect less than 2% of employers. This is to fund an increase in the number and quality of apprenticeships.

The levy will be charged at a rate of 0.5% of an employer’s pay bill. This will be collected by HMRC and made available to individual employers via a new Digital Apprenticeship account. This will be able to pay for training, assessment and certification of apprentices. Government guidance on the levy can be viewed here.

Acas guide to help combat sex discrimination in the workplace

On Monday, 4 April 2016, Acas launched new guidance to assist employers and managers with the laws around equality and preventing sex discrimination in the workplace. This provides best practice and advice as to how to deal with areas in which workplace sex discrimination may occur. This followed statistics showing that, from 1 April 2015 to 31 March 2016, Acas answered 7,175 calls relating to sex discrimination. There were 91% from employees (78.7% women and 21.2% men), and 8.1% from employers.