Case law update

Dismissal: Is it fair to dismiss a disabled employee for refusing to follow a return to work plan?

The EAT said that it was fair on the facts in the case of Rochford v WNS Global Services (UK) Ltd and others.

Background

The Claimant was a senior manager who suffered from a disabling back condition. He was absent from work from February 2012 on generous sick pay (which lasted until his dismissal). Some months later his position was medically assessed, leading to the conclusion that there should be a phased return to work. The employer decided that he should return to restricted duties, which formed part of those he was contractually obliged to undertake. He refused to do so, considering that this was a demotion.

The employer did not make it clear that the long-term aim was for the employee to return to his previous role. Despite a number of discussions, the employee continued to refuse and was warned that he would be dismissed if he did not agree. He was eventually dismissed and brought claims for disability discrimination, unfair dismissal and wrongful dismissal.

Decision

The Tribunal upheld some elements of the discrimination claim (but not those linked to the dismissal) and also found that the dismissal was substantively fair but procedurally unfair. The wrongful dismissal claim was dismissed. Following an appeal, the EAT agreed with the Tribunal’s conclusions. The reason for Mr Rochford’s dismissal was because of his conduct – not his disability. He had refused to do any work, despite having been warned about the consequences of doing so. His conduct amounted to gross misconduct and his employer was entitled to dismiss him without notice.

The EAT did note that if the employee thought that the employer was acting unreasonably, he could have resigned and claimed constructive dismissal or worked under protest. To simply refuse to do any work was not acceptable.

How does this decision affect your school?

The case demonstrates that the fact that there has been an element of unlawful discrimination does not mean that any ultimate dismissal must be unfair (but often will be).

It is good practice when an employee is returning from a long-term absence to try to agree a return to work plan to avoid these types of problems. However, as long as the employee is medically fit to undertake the work set out in a return to work plan, you can discipline and ultimately dismiss if the employee refuses to do so.

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References: It is an act of discrimination to provide a negative reference because of the amount of time off a disabled person has had?

The EAT in the case of Pnaiser v NHS England and Coventry City Council held that the negative verbal reference provided by Ms Pnaiser’s former line manager resulted in the withdrawal of a job offer and amounted to discrimination arising from disability.

Background

Ms Pnaiser was employed by Coventry City Council in a managerial role. She had a disability which resulted in a number of significant absences from work. She was made redundant and signed a settlement agreement, which included an agreed reference. A few months later she applied for a managerial role at the NHS and was appointed to the post, subject to receiving satisfactory references. Ms Pnaiser’s former line manager submitted the agreed reference, but indicated that she would be happy to discuss it (this was because the agreed reference did not include all of the information requested by the NHS using their standard template).

The NHS took the manager up on her offer and a discussion took place, during which the manager referred to Ms Pnaiser’s poor absence record and, after hearing what the new job entailed, she said that she would not recommend her for the new role.

Following the verbal reference, the NHS withdrew the job offer and Ms Pnaiser brought proceedings in the Tribunal against both organisations for discrimination arising out of disability.

Decision

Ms Pnaiser was initially unsuccessful, but this decision was reversed by the EAT who found that there were sufficient facts from which the Tribunal could infer that the negative reference was made (at least partly) because of her absences which were a consequence of her disability.

How does this affect your school?

If you have agreed the terms of the reference as part of a settlement agreement, you must stick to this unless you have evidence that it is no longer correct, even if you are asked to elaborate, or provide additional information (this situation often occurs where the new employer sends out their own pro-forma list of questions which covers more ground than the agreed reference).

Your school must also take care if you receive a reference which indicates that someone you wish to appoint has taken time off work due to ill health. If you jump to conclusions about the individual’s suitability for the role, and for example reject their application or withdraw the offer, then you will be at risk of a discrimination claim. You can be at risk, even if you have not been expressly informed that the candidate has a disability; obtaining details about an individual’s absence record may be sufficient to put you on notice that the applicant might have a disability.

Employers are generally not allowed to ask preemployment questions about an applicant’s health (this includes questions about previous sickness absence) before making a job offer, but can make job offers conditional upon satisfactory health checks or medical questionnaires. You will need to consider whether any reasonable adjustments can be made before reaching a decision. However, if the tension between what the employer needs and the candidate can safely do becomes too great, then the offer can be withdrawn. Without that discussion, however, an employer will always be vulnerable to discrimination allegations.

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Dismissal: Can a trade union representative be dismissed whilst participating in union activity for a non-union related reason?

The EAT found that the employer had fairly dismissed an employee in Azam v Ofqual because the employee had been dismissed for misconduct and not because she was a union representative.

Background

Ms Azam was the employee union representative (and later the Branch Chair) of the PCS Union which was recognised by the employer. She had raised a number of grievances on behalf of members (some of which remained unresolved).

The employer wished to make significant changes to its pay and grading arrangements and meetings took place with Ms Azam in her capacity as PCP Branch Chair. During those discussions, the employer disclosed a document detailing each of the roles in the organisation together with the old and proposed new grades. That information was disclosed to her on the strict condition that it was confidential and should not be disclosed to anyone else, or used for other purposes.

Despite this, Ms Azam sent copies of the document to branch members. She attempted to avoid suspicion by referencing her email with a neutral title. Her employers only became aware that she had done so when they received a complaint by another member of staff that sensitive information had been disclosed to PCS colleagues. Following an investigation, Ms Azam was dismissed for gross misconduct.

She brought a claim arguing that her dismissal was automatically unfair because she said that the real reason for the dismissal was her trade union activities.

Decision

Her claim was unsuccessful. It was held that the real reason for her dismissal was because she had sent out confidential information and not because of her role as a trade union representative.

How does this affect your school?

Many employers tread carefully in trade union matters, as unionised workplaces are often quick to defend their members. Here staff went on strike to protest against Ms Azam’s dismissal (the union was initially unaware that she had breached confidentiality).

However, if you can prove that a decision to dismiss a union member was genuinely because they committed an act of gross misconduct, the dismissal will be fair.

Dismissing an employee because of their trade union activities will be automatically unfair, meaning that there is no requirement for the employee to have a minimum period of service to bring a claim of unfair dismissal. In addition, dismissal for this reason will attract a minimum basic award of £5,807.

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Can an employee claim victimisation by association?

The Tribunal agreed that a claim for associative victimisation is possible in Thompson v London Central Bus.

Law

Victimisation occurs when an employee is treated less favourably because they have carried out a ‘protected act’. A protected act is when an employee has previously made a complaint or claim of discrimination, or supported someone who has made such a claim.

Background

Mr Thompson was a bus driver who said he had overheard a conversation in which it had been alleged that management had, some 20 years earlier, conducted a campaign to get rid of certain employees who had made allegations of racism against management.

He said that he had recently repeated the conversation to a manager who, shortly afterwards instigated disciplinary proceedings against him which had resulted in his dismissal. Following a successful appeal, this sanction was replaced with conditional reinstatement.