Sintons Employment Law E-Bulletin – Issue 62

• Written warning for 60 days’ sickness absence amounted to disability discrimination – DL Insurance Services Ltd v O’Connor UKEAT/0230/17
• Regular service did not guarantee umbrella contract for casual staff when deciding employee status – Hafal Ltd v Lane-Angell UKEAT/0107/17
• Misuse of information does not make dismissal fair – Morris v Metrolink RATP Dev Limited
• Government publishes new guidance on Trade Union facility time reporting process

Written warning for 60 days’ sickness absence amounted to disability discrimination – DL Insurance Services Ltd v O’Connor UKEAT/0230/17

The Employment Appeal Tribunal (“EAT”) held the Employment Tribunal (“Tribunal”) was entitled to conclude that the Respondent had failed to justify giving the Claimant a written warning for her sickness absence.

The Claimant’s employment began in 2005. From 2013 she began to have high absence levels as a result of a disability. The Respondent was aware of her disability and accepted that it fell within the Equality Act 2010. The Respondent had taken no disciplinary action from 2013 to 2015 where the Claimant’s sickness absences exceeded the trigger points in the sickness absence policy. However, in 2016, the Respondent issued the Claimant with a 12-month written warning for the 60 days of absence arising in the previous 12 months. As a consequence of the warning, the Claimant’s sick pay was suspended for its duration. The Respondent failed to follow its own processes and policy by failing to refer the Claimant to occupational health.

The Claimant brought a claim to the Tribunal for discrimination arising from disability under section 15 of the Equality Act which was upheld. It was for the Respondent to justify the treatment as a proportionate means of achieving a legitimate aim. The Respondent argued that the aims were to ensure adequate attendance levels and to improve the Claimant’s attendance. The Tribunal rejected this argument. The Respondent appealed.

The EAT agreed with the Tribunal that the warning was not a proportionate means of achieving those aims; the Respondent could not explain how the warning would assist its aims. The appeal was dismissed. The EAT did however consider that the Respondent had adopted a very careful approach, treating the Claimant with great sensitivity and sympathy by permitting her to have a longer period of sickness absence than that of its strict policy, prior to issuing the warning.

It is important to tread carefully and sensitively with trigger points in sickness absence policies when dealing with disability-related absences. 60 days of sickness absence in 12 months will seem extraordinarily high to most, however, employers must be able to explain why it is appropriate to issue a warning or take disciplinary action in each specific case.

Regular service did not give rise to umbrella contract for casual staff when deciding employee status – Hafal Ltd v Lane-Angell UKEAT/0107/17

The EAT allowed Hafal Ltd’s appeal against the Tribunal decision that the Claimant had employee status pursuant to an umbrella contract where there was no mutuality of obligation for staff engaged on a casual basis.

Miss Lane-Angell, the Claimant, was engaged by the Respondent between March 2013 and January 2016 as an ‘Appropriate Adult’ on a ‘bank basis’, with no guaranteed hours of work. The Respondent would only use her services if required and if she was available after availability was confirmed in advance and a rota was prepared. Depending on demand, Appropriate Adults would be called to attend the police station to support vulnerable adults. If they were called, they would be expected to work; however being on the rota did not guarantee a call to work.

After concerns with availability of Appropriate Adults, in May 2015 the Respondent introduced a requirement that Appropriate Adults must give a minimum availability for ten shifts in a month. If an Appropriate Adult failed to respond to a call-out request on three occasions, they would be taken off the rota. Evidence was produced at Tribunal which showed the Claimant failing to respond and, as a result, in January 2016 the Respondent informed her that she would not be offered any more work. The Claimant brought a claim of unfair dismissal.

Under section 94(1) of the Employment Rights Act, unfair dismissal is only available to employees with a minimum of two years’ service. To pursue her claim, the Claimant needed to establish she was an employee. The Tribunal found that she was, pursuant to an umbrella contract which exists through the entire working relationship, even when they are not working.

The EAT disagreed and held the Tribunal had failed to take into account the terms of the letter of appointment which negated mutuality of obligation in respect of work being offered or performed; there was no requirement on the Claimant to offer availability. Despite the change of requirements in May 2015, the Tribunal made no finding for the preceding period. Thus the Claimant was not an employee of the Respondent and therefore was unable to pursue her claim of unfair dismissal.

This was not a case where the letter of appointment was alleged to be a sham. However, it is important to remember that when determining employment status, the terms of contractual documentation are important and it is essential to reflect what intends to be the reality of the employment relationship from the outset.

Misuse of information does not render dismissal fair – Morris v Metrolink RATP Dev Limited

This case dealt with automatic unfair dismissal under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”), confidential data leaks and misconduct.

The Claimant was a trade union official employed by Metrolink RATP Dev Limited. As part of a restructuring exercise in June 2014, supervisors within the scope of the exercise took part in an assessment centre to assess suitability for potentially different roles in the restructured organisation. It was apparently understood that relevant line managers would not be involved in the process. As a result, five employees were put at risk of redundancy, four of which were union members.

A photograph of a diary entry of a conversation discussing the performance of candidates in the assessment centre made by a line manager, who should not have been involved in the process, made its way to the Claimant. The Claimant informed HR and raised a collective grievance and was subsequently dismissed for gross misconduct for storing and sharing confidential information. He brought claims of unfair dismissal and automatically unfair dismissal.

The Tribunal ruled that the dismissal was automatically unfair on the basis that the Claimant was acting in his capacity of a trade union representative, by storing the information and using it on behalf of members to the extent of referring to it in the collective grievance.

The EAT overturned this decision concluding that the Tribunal Judge failed to consider whether dismissal for wrongful or unlawful retention of confidential information for trade union purposes was covered under section 152 TULRCA. The Claimant appealed to the Court of Appeal.

The Court of Appeal unanimously upheld the appeal and restored the original result in the Claimant’s favour. The limited use of the leaked information, which directly affected union members’ interests, was not sufficient to take the conduct outside the purposes of ‘trade union activities’ and the protection of section 152. There was no indication of foul play, the Claimant was merely a recipient of the data, it was not circulated nor used improperly and he informed HR.

This case is a caution for employers not to overreact to data breaches and automatically categorise them as gross misconduct, especially where data security is the basis for the dismissal.

Government publishes new guidance on Trade Union facility time reporting process

The Cabinet Office and Civil Service have issued new guidance on the Trade Union (Facility Time Publication Requirements) Regulations 2017 (SI 2017/38) that came into force on 1 April 2017. Specific public sector employers must now collect and report on paid facility time provided to relevant union officials for union duties and activities. This data must be published on the employer’s own website and a government website. A centralised online reporting service is expected to be rolled out on 1 July 2018.

The relevant data must be published for the period from 1 April 2017 to 31 March 2018 by 31 July 2018.

The guidance sets out the scope of the new legislation, the reporting process and important time scales that must be adhered to. More information can be clicking here.