Irwin Mitchell | Focus on Employment | Spring 2016 - Case Law Update

Can an employee blow the whistle about a cramped workstation?

They might be able to according to the EAT in Morgan v Royal Mencap Society, but only if the employee can demonstrate that they reasonably believed that their complaints were in the public interest. This can only be determined at a full hearing.


Ms Morgan worked for the charity for almost three years. During her employment she injured her knee and complained on three separate occasions to senior staff that her working area was cramped and that this was adversely affecting her knee. We don’t know how Mencap reacted to these complaints but clearly, whatever steps they took were not to Ms Morgan’s satisfaction and, she resigned claiming both constructive unfair dismissal and that she had suffered a detriment as a result of having made a protected disclosure.

In order to get past the post on her whistleblowing complaint, she had to demonstrate that she had a reasonable belief that the disclosure of wrongdoing (in this case her lack of desk space) was in the public interest. When pressed on this point, she said that she believed the public would be “shocked” by her working conditions and that these presented a health and safety risk to others. She then went on to say “the public ought to know about charities that behave in this manner”. Mencap, not unreasonably, thought that her complaint could not be said to be in the public interest as it only affected her and it made an application to strike out this part of her claim at a preliminary hearing.

Mencap was initially successful and Ms Morgan appealed to the EAT.


The EAT said that the case should proceed to a full hearing to determine if Ms Morgan did reasonably believe that her complaints were in the public interest. This is because there is a high threshold which must be satisfied before a claim can be struck out before hearing any evidence.


This case again demonstrates that tribunals will not strike out claims, of even seemingly hopeless cases, at an early stage. Tribunals will be expected to test by evidence whether the individual bringing the claim a) did believe that their disclosure was in the public interest and b) whether that subjective belief was a reasonable one to hold. We can only hope that common sense prevails when the case is heard. The “public interest” test introduced in 2013 to prevent individuals being able to bring whistle-blowing claims on the basis of a breach of their own contractual rights is creaking at the joints. The case of Chestertons, which involved an estate agent who complained that profit figures had been manipulated to reduce the bonus paid to him and around 100 of his peers, is due to be heard by the Court of Appeal in the autumn. We hope that the Court of Appeal will take the opportunity to clarify what is meant by the “public interest”.

Whistle-blowing – when does an allegation amount to a disclosure?

When it conveys information according to the EAT in Kilraine v London Borough of Wandsworth. It does not matter what “label” is attached to the disclosure.


Ms Kilraine alleged that she had been dismissed as a result of making four protected disclosures. She complained in an email to a senior member of staff that the local authority was failing in it legal obligations towards her in respect of bullying and harassment and in particular “numerous incidents of inappropriate behaviour”. She also alleged in a separate complaint that her line manager had failed to support her when she had raised a safeguarding issue.

The tribunal found that these were allegations rather than disclosures of information and did not qualify as protected disclosures. Ms Kilraine appealed.


The EAT dismissed the appeal and said that Ms Kilraine had not gone far enough to establish that she had made protected disclosures. In relation to the complaint about discrimination, it said that this was an allegation; the term “inappropriate” was too vague to clearly include, say, a criminal offence or a failure to comply with a legal obligation. The other complaint did convey some information about what happened during the meeting, but she had not shown that her line manager was in breach of any legal duty or that she reasonably believed that there was such a duty.


This case demonstrates that employees who wish to gain the protection of the whistleblowing legislation must be in a position to point to a particular disclosure. Alleging that this or that is wrong is not enough without corroborating evidence. In this case, the employee made a number of complaints, but only sought to badge these as “disclosures” after she was made redundant.

Are employers obliged to continue childcare vouchers under a salary sacrifice scheme during maternity leave?

Not according to the EAT in Peninsula Business Services v Donaldson.


Peninsula offered its staff the ability to purchase childcare vouchers by way of a tax efficient salary sacrifice scheme. However, it imposed a condition that employees could not use this during maternity leave.

Ms Donaldson wished to join the scheme but, as she was pregnant, she believed that the condition of entry was discriminatory and she refused to join. She alleged that the scheme conditions were indirectly discriminatory on the grounds of sex and that she had suffered a detriment for asserting her right to maternity leave.

In order to succeed with her detriment claim, Ms Donaldson had to show that childcare vouchers were a non-cash benefit and as such, had to be maintained during maternity leave as only remuneration could be suspended during this period.

The tribunal held that the vouchers were noncash benefits and should be paid to women on maternity leave. Peninsula appealed.


The EAT reversed the decision and allowed the appeal. It found that childcare vouchers did amount to remuneration and as such employers do not have to provide them during maternity leave. It found that a salary sacrifice scheme, in effect, diverted salary. The money was still earned but was earmarked for another purpose.


HMRC guidance provides that salary sacrifice schemes amount to non-cash benefits and therefore should continue during maternity leave. The EAT said that this was not correct. This decision is to be welcomed. Continuing vouchers during maternity leave produces a windfall benefit for the employee and imposes a cost on the employer. However, the EAT admitted that its interpretation was driven by a belief that requiring employers to pick up the tab for childcare vouchers during maternity leave would discourage employers paying SMP (rather than enhanced payments) from offering the scheme.

It is likely that these issues will be subject to further appeal. The EAT’s analysis is vulnerable to attack and employers wishing to withdraw childcare vouchers during maternity leave should take advice before changing their policy.

Is it fair to dismiss an employee for gross misconduct for pretending to be ill?

Yes on the facts of Metroline West v Ajaj, EAT.


Mr Ajaj was a bus driver and, having slipped at work, was signed off because of alleged difficulties walking and sitting for long periods. He was seen by the company’s occupational health advisor who said that he was not fit for work and he also was referred for physiotherapy by his GP.

His employer became suspicious about the seriousness of Mr Ajaj’s injuries and covertly recorded him. A number of meetings took place, during which Mr Ajaj maintained that he was not yet well enough to return to work as a bus driver. During one meeting, Mr Ajaj was shown covert footage taken of him walking and shopping and he was asked to provide an explanation because his employers believed that the footage indicated that he was not as incapacitated as he claimed to be.

He was subsequently dismissed for making a false claim for sick pay, misrepresenting his ability to attend work and for making a false claim of an injury at work. This amounted to gross misconduct.

He claimed that he had been unfairly dismissed and the tribunal, at first instance, agreed. Metroline appealed.


The EAT also found that the dismissal was fair. On the facts, the tribunal had been entitled to believe that Mr Ajaj had misrepresented his injury. Pretending to be ill amounts to dishonesty and is a fundamental breach of the implied duty of trust and confidence between employer and employee.


Generally, employers are expected to accept a Fit Note at face value and must have a reasonable belief that an employee’s illness is not genuine before deciding to dismiss. This will require a reasonable investigation.

Even if you have reasonable doubts about an employee’s condition, you must not make assumptions or immediately accuse the employee of lying. If you do so, they may claim disability discrimination or resign and claim constructive unfair dismissal and, if you dismiss them, they may be able to claim unfair dismissal.

For long term conditions, it is helpful to obtain a medical report which you may be able to use to challenge the employee’s assertion that they remain too ill to work. Generally, it is better to obtain a report from a health professional not treating the employee who can review the employee’s condition objectively through impartial eyes, rather than from the employee’s own GP.

For short term absences a return to work interview will give you the opportunity to quiz the employee a bit more about the nature of their illness and ask them to explain any inconsistences. However, this case makes it clear that if you reasonably believe the employee is lying about their illness, they can be fairly dismissed for gross misconduct.

Does raising performance issues with an employee suffering from stress and on sick leave breach the implied duty of trust and confidence?

Yes on the facts of Private Medical Intermediaries Ltd and others v Hodkinson, EAT.


Miss Hodkinson was a director of sales. She had a thyroid dysfunction and was considered to be disabled and had time off due to her illness. After a period of sickness leave she returned to work on reduced hours. A short time later she went off sick again with work related depression and anxiety. She believed that this had been caused by bullying by her line manager and another manager and her Fit Note cited this as a cause of her depression. The CEO then wrote to Miss Hodkinson to ask her if she wished to raise a grievance. She wrote back indicating that she was too upset to communicate properly without breaking down and was “distraught” at the treatment she had received from her managers.

The CEO took legal advice and sent a further letter to Miss Hodkinson suggesting that they meet soon at a neutral location. The letter indicated that he had spoken to the managers to find out what had gone wrong. It also set out six areas of concern about her performance and commitment he wanted to discuss with her. Miss Hodkinson resigned and claimed constructive unfair dismissal (amongst other claims).

The tribunal found that she was over sensitive and prone to exaggeration and had not been bullied. It also found that the letter was not part of a campaign to drive her out (as had been suggested). The company did have genuine concerns, but all of these had previously been brought to her attention. However, a reasonable employer would have known that the letter would have caused her distress and she was entitled to treat it as a repudiatory breach; her dismissal was therefore unfair. The company appealed.


The EAT upheld the finding of constructive unfair dismissal. The letter did not raise serious issues and many of these had been dealt with and were closed.


Maintaining appropriate contact with an aggrieved employee on sick leave is a common problem for employers. This case does not mean that it is never appropriate to raise performance concerns with an employee absent on work related stress, but care should be exercised. It will be relevant to consider how long the employee is likely to be off work and to consider whether the allegations can wait until the employee returns.

The key message though is not to conflate a grievance with separate performance issues (unless the grievance is about how performance is being managed). In most cases it is better to resolve the grievance before any potential performance or disciplinary issues.

Is a warning given for imposing religious views on colleagues an act of discrimination?

Not according to the EAT on the facts of Wasteney v East London NHS Foundation Trust.


Ms Wasteney is a practising Christian and held a senior role within the mental health team at the Trust. She launched an initiative in which volunteers from her church provided religious services at the centre where she worked. However, these were suspended following concerns that improper pressure had been put on staff and service users about Christianity. Ms Wasteney was given informal advice about the need to ensure that there were appropriate boundaries between her spiritual and professional life.

Sometime later a Muslim colleague made a complaint about Ms Wasteney. They complained that she had been invited to church events, sent religious books and told that she needed to let Jesus into her life. The colleague believed that Ms Wasteney was “grooming” her and had also laid hands on her during prayers. The Trust considered that Ms Wasteney had failed to maintain professional boundaries and was issued with a final written warning, which was reduced to a first written warning on appeal. She alleged that she had been discriminated against on the grounds of her Christian religion.

The tribunal rejected her complaints. It acknowledged that the context of the disciplinary action was related to her religious beliefs, but the warning was issued because her beliefs blurred with her professional boundaries and she had placed improper pressure on a junior member of staff. She appealed to the EAT, arguing that the tribunal had failed to take sufficient account of her right under the European Convention of Human Rights to manifest her beliefs.


The EAT upheld the tribunal’s decision. This was not a case involving consenting adults. The colleague did not consent and Ms Wasteney had placed improper pressure on a junior colleague.


This case is the latest in a line of cases which have found that proselytising at work is, generally, inappropriate. Employers can properly take disciplinary action against an employee for improperly manifesting a religious belief but should not do so for simply manifesting that belief.

Spring 2016