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.
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.
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.
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.