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Employment Law Bulletin October 2018

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News round up 

We have several exciting events in the pipeline. Please click here to view our seminar programme and keep an eye on your inbox for invitations to these events in due course.

We still have some places left for our next employment seminar which will take place on Thursday 8 November 2018 at our offices. We will be addressing the issues concerning disabled employees, the extent of your obligations to make adjustments and facilitating a return to work. Click here for more information and how to register.

In addition, we are always talking about key legal developments, topical issues and what we are up to on our twitter account (@ClarionEmpLaw), so please follow us if you want to be kept up to date between our monthly newsletters.

In the meantime, here is our usual round up of key cases and legal changes over the last few weeks.

When is a resignation not a resignation? 

If an employee resigns, and later wants to retract their resignation, in general you are not obliged to accept their request (and can force them to resign, as they had originally intended). However, if there is any doubt over whether they have actually resigned, refusing to accept a request to withdraw could amount to you dismissing the employee and that dismissal being deemed unfair.

In East Kent Hospitals University NHS Foundation Trust v Levy 2018 the employee worked in the Records department of the hospital. She successfully applied for a different role in the Radiology department and she wrote to her manager saying, ‘please accept one month’s notice from the above date’. The offer of employment in the Radiology department was then withdrawn due to her absence record, so she asked to remain in her role in the Records department. This was refused, with the employer saying that she had resigned and therefore had no right to stay in employment. She claimed unfair dismissal.

The Employment Appeal Tribunal concluded that she was dismissed. It found that her statement giving one month’s notice was ambiguous, because it was not clear whether it was a resignation from the department or from her employment with the hospital. As it was not an unambiguous statement of resignation, the employer could not treat it as such.

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A rare re-instatement 

It is rare for an employee to be re-instated following a successful unfair dismissal claim. Although this is one of the remedies that the Employment Tribunal must consider, working relationships have usually broken down so badly that it is not feasible for the employee and employer to continue working together. In most cases, employees do not wish to return and instead ask for compensation. However, a recent case reminds us that re-instatement (where the employee gets their old job back) or re-engagement (where the employee returns to the organisation, but in a different role) are possibilities.

In Nolan v XPO Bulk UK Ltd 2018 the employee was a tanker driver who spilt fuel when making a delivery at a petrol station. When he started to dispense the fuel, an alarm sounded. He investigated, found a blocked pipe, addressed it and restarted to dispense the fuel. The alarm then sounded again, but he could not find a problem and continued with the delivery. He misread the fuel dispensing equipment and over-estimated the space in the fuel tank. As soon as he realised, he pressed the stop button, but by that time, fuel had spilled onto the forecourt. Unknown to him, there had been a problem with the sensor which had been reported. He was dismissed.

This was found to be an unfair dismissal because a reasonable employer would not have dismissed the driver, in circumstances where they were aware that there were problems with the sensor. The employee sought reinstatement, which was awarded, and the employer was also ordered to pay him the unpaid wages from the date of his dismissal to the date of his reinstatement.

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Making reasonable adjustments 

As most of you will be aware, if an employee is disabled, as defined in the Equality Act 2010, there is a requirement to make reasonable adjustments if that disability places the employee at a significant disadvantage when compared to other individuals.

In Browne v Commissioner of Police of the Metropolis 2018 the employee suffered from asthma, which was agreed to be a disability. She worked as an Emergency Call Operative and was based in an open plan office. She argued that working in an open plan office placed her at a disadvantage because she was more likely to be exposed to the illnesses of others, she could not control the temperature of the office and the temperatures fluctuated. The employer carried out a number of tests of the working environment and did not find that these arguments were substantiated. It also argued that it was not possible to do her role from a remote location. She claimed disability discrimination.

She was unsuccessful in her arguments. As there was no evidence that she was being placed at a disadvantage, there was no duty to make reasonable adjustments.

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Assessing a discrimination claim fairly 

It might sometimes seem that an employee is making some form of employment-related claim just to deflect attention from what s/he has done wrong. However, before assuming there is nothing in their allegations, it is important to separate out the issues and assess whether there are merits to the claim.

In Saad v Southampton University Hospitals NHS Trust 2018 the employee was training to be a consultant surgeon. He was not progressing well and failed an assessment. He admitted that he had made some mistakes in operations he had carried out, but he also alleged that his supervisor had said that he looked like a terrorist. He claimed race discrimination and unfair treatment for making a public disclosure. The employer argued that he was bringing these claims to try to detract from his poor performance in his training, and the Employment Tribunal agreed.

However, the Employment Appeal Tribunal ruled that the Employment Tribunal should look again at the claims that had been brought. It is possible that the employee was trying to detract from his poor performance, but that did not mean that there was no basis for his claims – they could still be valid and they needed to be properly and fully assessed.

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What you should know about a disability 

As we have set out in numerous newsletters, if an employee is disabled, as defined in the Equality Act 2010, you are required to make reasonable adjustments so that the employee is not disadvantaged by the disability. However, what happens if you do not know that the employee is disabled?

In Mutombo-Mpania v Angard Staffing Solutions Ltd 2018 the employee was a flexible worker, and suffered from essential hypertension, which had a number of symptoms. He did not say that he was disabled on his application. He initially worked a number of shifts ending at 10pm, and then was assigned to a number of night shifts. He then told his employer that his ‘health problems’ meant that he could not work nights. He was given more shifts ending at 10pm, but failed to attend on 4 occasions. He was told that he was not needed any longer and claimed disability discrimination.

His claim was not successful. To demonstrate that he was disabled, he had to show that he had a physical or mental impairment which had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. He had said that he had ‘health problems’ but he had not explained how they impacted his ability to work and, in particular, why they affected his hours of work. As the employer had insufficient evidence to conclude that he was disabled, his claim of discrimination was unsuccessful.

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A final word 

The 10th of this month was Mental Health Awareness Day . More and more people are coming forward to talk about their mental health struggles and the stigma around mental health seems to be gradually lifting. However, many employees still don’t know where to turn in times of distress, and statistics show that absence due to mental ill-health is on the rise. Managing staff who are experiencing mental ill health is on the agenda for many businesses and one positive step a business could take is to train some staff members to act as Mental Health First Aiders. Training can be provided by Mental Health First Aid England, but we can host such training for our clients and contacts. If you want to find out more about training some Mental Health First Aiders for your organisation, please get in touch.