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Adjournment on the grounds that the Claimant is unwell

In this month’s Employment Law News we look at a decision which deals with the circumstances in which a tribunal will agree to an application to adjourn by the Claimant on the grounds of ill-health; a decision which gives merit to an employer employing a policy to ensure that its employees work within a 48 hour week; and when a suitable offer of alternative employment is considered reasonable in a redundancy situation. We also consider what the key developments in employment law are likely to be in 2012.

Adjournment on the grounds that the Claimant is unwell

In the case of O’Cathail v Transport for London, the Employment Appeal Tribunal (EAT) considered the circumstances in which a Tribunal should grant an application brought by a Claimant who was unwell, to adjourn proceedings. The Claimant had applied for a second adjournment on the grounds of ill health the day before the eight day hearing was due to commence. The Employment Tribunal at first instance, conceded that the Claimant was suffering with ill health but refused an adjournment on the basis that there had been a substantial period of time since the alleged events had taken place; and that any further delay would unfairly prejudice the Respondent.

The decision was overturned by the EAT who said that the Tribunal should not have proceeded to hear the claim. There are only limited circumstances where the EAT will consider adjournment applications. The circumstances are limited only to where the fairness of proceedings as a whole is at risk, and whether the decision was a fair solution to the situation. In this case whilst the delay would unfairly prejudice the Respondent the decision to proceed in the Claimant’s absence deprived the Claimant of a fair hearing.

Accordingly, in circumstances where the Claimant finds himself absent from the Tribunal through reasons of ill-health and his presence is necessary in order to ensure a fair hearing, the Tribunal should grant an adjournment.

The case suggests that a Tribunal should ordinarily grant an adjournment on medical grounds where there is sufficient evidence before it. It is only on very rare occasions will a Tribunal refuse such an application.

Detriments and Opt Out Agreements

In the case of Arriva London South Ltd v Nicolaou, a bus driver, Mr Nicolaou, declined to opt-out of the 48-hour week imposed under the Working Time Regulations.

Under the Working Time Regulations the average working time for each seven day period, including overtime, must not exceed 48 hours unless the employer has obtained the workers agreement – an opt out agreement.

Arriva introduced a policy that no work on rest days would be offered to a driver who had not signed an opt out agreement. Consequently, his employer did not consider him for overtime when the opportunity arose. Arriva relied on the justification that it was acting in accordance with its duty to ensure that it maintained its own policy of acting in line with the Working Time Regulations.

The Claimant brought a claim in the Employment Tribunal alleging that he had suffered a detriment as a result of his refusal to sign an opt out agreement.

The Tribunal held that ‘but for’ the refusal to opt out the overtime would have been available and therefore concluded that the Claimant had been subjected to a detriment.

The case was heard by the EAT who held that the relevant question was ‘why’ the Claimant had suffered a detriment. The EAT also reflected that the detriment may have occurred because the employer had taken reasonable steps to comply with the Working Time Regulations and in particular the duty it carried out to take reasonable steps to ensure that the limits are complied with.

The EAT considered the authorities on causation in discrimination and whistleblowing. It held that the necessary link between the Claimant’s protected act and the withdrawal of overtime required to establish a detriment, was not made out. The EAT supported the actions of Arriva; namely that the Claimant had been refused the overtime because the Company was mindful of acting in accordance with its own policies.

In its decision, the EAT added that it would surely be an extraordinary decision if an employer was criticised for adopting a policy designed to ensure that it did not overwork its employees who had exercised their right not to opt-out of the 48 hour week. The refusal was intended to further the employers own policies rather than penalise the employee for refusing to opt out.

The decision suggests that tribunals are likely to be sympathetic towards employers who have implemented policies aimed at ensuring compliance with a statutory duty.

Redundancy and Suitable Alternative Employment

The case of Readman v Devon Primary Care Trust illustrates that an employee can act reasonably in refusing an offer of suitable alternative employment where the Employment Tribunal had concluded that a reasonable employee would have accepted the offer from the employer.

The Claimant, Mrs Readman, was a nurse who was placed at risk of redundancy and offered three alternative posts. One of the posts that was offered was the role of Hospital Matron. This role was found to be suitable alternative employment by the Employment Tribunal.

Mrs Readman refused the role on the basis that she was reluctant to work within a hospital setting, having worked within the community for the previous 15 years. She was denied a redundancy payment by the Trust. The Employment Tribunal upheld the decision of the Trust not to award a redundancy payment because, it said, her refusal had been unreasonable. The Tribunal considered that a reasonable employee would have accepted the alternative offer.

On appeal the EAT overturned the decision of the Tribunal. It held that the Tribunal had erred in its decision by applying an objective test to determine reasonableness. The proper question was whether the employee concerned acted reasonably by refusing the offer and it essentially substituted a subjective test. In order to give the matter proper consideration it was necessary to consider all the circumstances in the round.

This involves giving appropriate weight to the reasons given by the employee and whether they could constitute justifiable reasons for rejecting the offer. Ultimately the EAT overturned the decision at first instance and substituted a finding that Mrs Readman was entitled to receive a redundancy payment.

On face value this case appears to be fairly unhelpful to employers who should take notice of this case. The case suggests that a Tribunal will consider a variety of factors both personal and professional, when considering whether an employee acts reasonably in refusing an alternative offer of employment from their employer who considers that the offer is suitable.

In the News

Employment Law roundup for 2012

2012 offers much in the way of developments for employment law. Many of the developments will be fed by the Government’s aim to reduce the regulatory burden to employers. Here is a summary of the key developments:

1 February: New tribunal award limits come into force.

The maximum award for unfair dismissal will rise from £68,400 to £72,300. The maximum weeks’ pay for the purpose of calculating statutory redundancy and basic and additional awards of unfair dismissal will rise from £400 to £430.

6 March: Consultation on fees in tribunals and EAT closes.

1 April: Statutory Maternity, Paternity and Adoption pay increases from £128.73 to £135.45 per week.

April: Expected increase to qualifying period for unfair dismissal, rising from 1 years’ service to 2 years’ service.

The increase will only apply to employees who commence service on or after 6 April.

April: Tribunal reforms to procedure come into force.

These reforms include changes to deposit and costs orders; and witness statements to be ‘taken as read’ unless the Tribunal directs otherwise.

April: Statutory Sick Pay increases from £81.60 to £85.85 per week.

April: Working Time Regulations to be amended to allow holiday to be carried forward in limited circumstances.

6 April (expected): Basic State Pension increases from £102.15 to £107.45 per week.

6 April: Increase to lower earnings limit for national insurance contributions comes into force.

1 October 2012: Pensions auto-enrolment begins for larger employers.

Under the Pensions Act 2008 all employers must auto-enrol their employees into a suitable workplace pension scheme if not already doing so.

Sejal Raja
© RadcliffesLeBrasseur
January 2012


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