Sintons Employment Law E-Bulletin – Issue 63
- Discrimination arising from disability could not be objectively justified where the employer had failed to consider part-time employment – Ali v Torrosian and others (t/a Bedford Hill Family Practice) UKEAT/0029/18
- Statutory notice cannot bridge a gap to 2 years qualifying service where employee dismissed for gross misconduct – Lancaster & Duke Limited v Wileman UKEAT/0256/17
- Successful appeal against dismissal re-instated employee and revived contract – Patel v Folkestone Nursing Home Ltd  EWCA Civ 1689
- No payment for sleeping employees – MenCap v Tomlinson-Blake UKEAT/0290/16
Discrimination arising from disability could not be objectively justified where the employer had failed to consider part-time employment – Ali v Torrosian and others (t/a Bedford Hill Family Practice) UKEAT/0029/18
The Employment Appeal Tribunal (“EAT”) allowed an appeal in favour of the Claimant where the Employment Tribunal (“Tribunal”) had failed to consider the possibility of the Claimant returning on a part-time basis as a less onerous way of the GP Practice achieving its legitimate aim to ensure ‘the best possible care was provided to patients’.
Dr Ali, a GP, worked for the Respondent at the Bedford Family Practice. He suffered a heart attack which resulted in a period of long-term sick leave; the ongoing heart condition led to him being regarded as disabled for the purposes of the Equality Act 2010. A medical report indicated that he could return on a phased basis to part-time work, but that it was unlikely he could ever return to work full-time. Dr Ali was subsequently signed off work for six weeks due to a shoulder injury, and on his return dismissed on the ground of capability. He brought claims of unfair dismissal and disability discrimination.
The Tribunal concluded that the dismissal was procedurally unfair due to the Respondent’s failure to consider Dr Ali’s return to part-time working, but that he would have been fairly dismissed a month later.
His disability discrimination claims were rejected by the Tribunal, concluding that although the dismissal amounted to unfavourable treatment and arose in consequence of his disability under section 15 Equality Act (discrimination arising from disability), it was justified by the Respondent’s legitimate aim of ensuring the best possible care was provided to patients.
On appeal the EAT overturned the Tribunal’s reasoning on proportionately, as it had failed to consider part-time working as an alternative and less discriminatory means of achieving the legitimate aim. Part-time working had only been considered in respect of the unfair dismissal claim. The disability arising from discrimination claim was remitted back to the Tribunal to reconsider the question of proportionately, in light of its finding it had been possible to accommodate part-time working.
It is important for employer’s to consider all possible alternatives and less severe ways to achieve a legitimate aim before dismissing for long-term absence.
Statutory notice cannot bridge a gap to 2 years qualifying service where employee dismissed for gross misconduct – Lancaster & Duke Limited v Wileman UKEAT/0256/17
Ms Wileman, the Claimant, was employed by Lancaster & Duke on 22 September 2014 and summarily dismissed for gross misconduct on 20 September 2016. The employer did not follow any procedure or allow her a right to appeal. Following her dismissal, Ms Wileman lodged a grievance during the evening on 20 September 2016 disputing the summary termination of her contract and the failure to provide her with notice. However, no grievance hearing took place. Ms Wileman claimed unfair dismissal, arguing that under section 97(2) Employment Rights Act 1996 her statutory minimum notice of one week would take her effective date of termination over the two years’ service threshold that is required to bring a claim of unfair dismissal.
The Tribunal agreed with the Claimant and in doing so rejected the Respondent’s argument that the Claimant’s right to rely on her statutory minimum notice entitlement was displaced by section 86(6) which allowed an employer to dismiss summarily by reason of an employee’s conduct. There was no finding as to whether the Claimant’s conduct could have amounted to gross misconduct. The unfair dismissal claim was upheld and there was no just and equitable reduction in compensation under Polkey v AE Dayton Services Ltd 1988, as the Tribunal found the dismissal to have been ‘substantively unfair’ and not merely ‘procedurally unfair’.
Lancaster & Duke appealed on both points to the EAT, which held the Tribunal had erred by concluding that section 97(2) meant that statutory notice had to be included to calculate an employee’s length of service for unfair dismissal purposes. If the Respondent had been entitled to dismiss without notice, no statutory notice could be added to the Claimant’s deemed service. Furthermore, the Tribunal had wrongly limited its approach to a just and equitable reduction in compensation. Both matters were remitted to the Tribunal.
Given the finding of the original Tribunal it is possible that it will be found that the Claimant’s actions did not amount to gross misconduct and as such she would still be entitled to the statutory notice period which would take her service over 2 years. Although this decision is helpful to employers, they should still be mindful when dismissing employees close to two years’ service.
Successful appeal against dismissal reinstated employee and revived contract – Patel v Folkestone Nursing Home Ltd  EWCA Civ 1689
Where a contractual right of appeal against dismissal was successful, the Court of Appeal held the contract to be revived and the original dismissal ‘extinguished’.
Mr Patel commenced his employment as a care assistant in January 2008 working at the Respondent’s nursing home. His contract of employment incorporated the Employee Handbook which included an appeal procedure against dismissal but there was no stipulation that a successful appeal would result in reinstatement.
Mr Patel was dismissed for gross misconduct for sleeping on duty and falsifying employee records, the latter of which was to be referred to the DBS. Mr Patel appealed the dismissal on both points in accordance with the appeal procedure in the Employee Handbook. Following the appeal meeting, Mr Patel was informed by letter that the appeal had been allowed but the letter only made reference to the allegation of sleeping whilst on duty being overturned; it did not address the more serious issue of falsifying employee records. The letter stated he would be contacted as soon as possible to arrange a return to work date. Mr Patel refused to turn to work and brought a claim for unfair dismissal, wrongful dismissal and wrongful deduction of holiday pay.
The Respondent argued at the Tribunal, that the successful appeal had reinstated the Claimant, and thus he had not been dismissed. This was rejected by the Tribunal on the basis that the right of appeal was silent as to the consequences of a successful appeal and reinstatement should therefore not be implied into the contract.
However, the EAT allowed the Respondent’s appeal against the finding of unfair dismissal, on the basis that the contractual provisions and successful appeal meant Mr Patel could not be regarded as having been dismissed by the Respondent. This was in line with the reasoning in Salmon v Castlebeck Care (Teesdale) Ltd  which showed that the appeals procedure was not required to expressly give the right to reinstate or impose a particular sanction; the employment contract governing disciplinary appeals implicitly suggested that a successful appeal against dismissal would overturn the dismissal and revive the contract.
The Court of Appeal dismissed Mr Patel’s appeal against the EAT’s decision and held that the effect of a contractual right of appeal against dismissal in the context of ordinary employment contracts, is that a successful appeal revives the contract and ‘extinguishes’ the original dismissal, unless there is some express qualification.
However, the Court has invited parties to make written submissions on whether the appeal should be allowed for different reasons, including whether the letter confirming the appeal outcome was a breach of the Respondent’s implied duty of trust and confidence and which may extend itself to the Claimant’s case that he was constructively dismissed by the ‘unsatisfactory’ appeal outcome.
No payment for sleeping employees – MenCap v Tomlinson-Blake UKEAT/0290/16
The Court of Appeal has ruled that carers who sleep at a client’s home are not entitled to receive the national minimum wage despite being technically “on call” during this time.
There has been extensive case law which previously held that, where a worker is required to be at a place of work, but not actually working, they are entitled to payment in line with the national minimum wage. This has resulted in workers effectively being paid to sleep if they are required to be at specific location in anticipation of the requirement to work.
The Court of Appeal has now held that the previous authorities on this topic had been incorrectly decided. In the case of MenCap v Tomlinson-Blake, Ms Tomlinson-Blake brought a claim for payment at the rate of the national minimum wage for the time she spent when sleeping-in. She was paid a flat-rate for sleeping-in, in addition to one hour’s pay. If she was required to wake and work for any longer than an hour she would be remunerated accordingly.
The Court of Appeal held that the correct decision is that workers “sleeping-in” will only be entitled to have sleep-in hours counted for minimum wage purposes where they are, and are required to be, awake for the purpose of performing some specific activity. It was concluded that as workers who sleep-in are characterised by the regulations as being available for work, rather than actually working.
The result being that the only time that counts for national minimum wage purposes is the time when the worker is required to be awake to actually work, not just to be available for work. This decision may be distinguishable from workers who are required to be available for work but are not required to stay at a particular location or those who have accommodation at work and are required to be on call outside normal working hours. These types of workers were not fully considered by the Court of Appeal however if these situations apply to you then you should be mindful of the decision in Mencap v Tomlinson-Blake in relation to payments for being available for work.