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November Case Round Up

In this month’s Enews we consider when the duty to offer suitable alternative employment arises in the case of an employee who is on maternity leave during a redundancy process; what constitutes a fair dismissal in a case of gross misconduct where an employee suffered from a mental health illness which was classed as a disability; and we take a look at the latest figures published by ACAS which show how Early Conciliation is working.

In the case of Sefton Borough Council v Wainwright the EAT considered whether an employer had acted unlawfully by failing to offer a suitable alternative role to a woman selected for redundancy whilst on maternity leave. This right is set out in Regulation 10 of the Maternity and Parental Leave Regulations 1999 (‘MPL Regulations’).

Mrs Wainwright was employed by Sefton Borough Council (‘the Council’). Shortly after Mrs Wainwright had begun a period of maternity leave, the Council commenced a redundancy and reorganisation procedure. Mrs Wainwright was placed in a pool of two managers facing redundancy. The Council planned to replace both roles with a combined role. The other manager was a male (‘P’). Mrs Wainwright and P were both interviewed for the new combined role and P was offered the role because he was better qualified. Mrs Wainwright was subsequently dismissed for redundancy. She claimed that her dismissal was automatically unfair because the combined role constituted suitable alternative employment and the Council was therefore obliged to offer her this role under Regulation 10 of the MPL Regulations. Mrs Wainwright also claimed that her dismissal was directly discriminatory. She subsequently brought claims for discrimination and unfair dismissal. The Employment Tribunal upheld both claims. The Council appealed.

The Council argued that the duty to offer suitable alternative employment to Mrs Wainwright only arose when the reorganisation had been completed and the decision over the new combined role had been made. The EAT rejected the Council’s distinctions. It found that for the purposes of Regulation 10 of the MPL Regulations, a redundancy situation arose when the Council had decided that two roles would be replaced by one. Further, the Council had offered nothing to Mrs Wainwright and it was therefore in breach of Regulation 10.

However, the EAT found that the Employment Tribunal had not fully considered why Mrs Wainwright had not been offered the alternative role. It held that it was not inherently discriminatory to offer the job to a better qualified candidate. Accordingly the EAT determined that in this case, a breach of Regulation 10 of the MPL Regulations did not inevitably mean that the Council had acted in a discriminatory manner. Accordingly Mrs Wainwright’s unfavourable treatment was not necessarily because she was on maternity leave.

This case demonstrates that the duty under Regulation 10 is triggered at the exact point in time when a redundancy situation arises. Therefore in that scenario, employers would be wise to offer suitable alternative roles from that point on (probably when an employee is notified that they are at risk).

The case of Burdett v Aviva Employment Services Limited considered whether an employee who suffered from paranoid schizophrenia had been dismissed fairly for gross misconduct, and whether the dismissal could be objectively justified for the purposes of considering discrimination arising from a disability.

A potentially fair reason for dismissal is if it relates to the conduct of an employee. The conduct need not amount to gross misconduct to justify dismissal. However the conduct must be so serious as to go to the root of the contract, and must be a deliberate breach of contract. In addition, the employer must have a ‘reasonable belief’ that the employee committed the act of misconduct.

Mr Burdett worked for Aviva Employment Services Limited (‘Aviva’). He commenced work in 2006. In 2007 he was diagnosed as suffering from a depressive illness (paranoid schizophrenic illness) and required medication. He was therefore considered to be a disabled person within the meaning of the Equality Act 2010. In 2008 Mr Burdett stopped taking his medication on medical advice. He was subsequently admitted to hospital following a sexual assault on members of the public. He received a police caution but did not disclose this fact to Aviva.

In 2010 Mr Burdett stopped taking his medication without seeking medical advice. In 2011 Mr Burdett sexually assaulted two female employees and threatened to assault a security guard.

He also assaulted a female member of the public on leaving the office building and attempted to assault another. He was arrested and detained under the Mental Health Act 1983 and faced criminal charges.

Aviva suspended Mr Burdett pending investigation and discovered his previous police caution. When the allegations were put to him, Mr Burdett accepted that the incidents in 2011 had taken place but acknowledged that he had made a “serious error of judgment”. He also stated “I thought I was best placed to decide the level of antidepressant medication I took…I was wrong”.

In April 2012 Mr Burdett pleaded guilty to the three assaults and the sentence required him to receive mental health treatment for three years.

At the disciplinary hearing in May 2012 the chair of the disciplinary hearing expressed concerns that Mr Burdett had failed to disclose the earlier assault of 2008 and he was dismissed for gross misconduct. He brought claims in the Employment Tribunal for unfair dismissal and discrimination arising from a disability. The claims were dismissed. Mr Burdett appealed.

Unfair dismissal

The EAT found that Aviva did not have reasonable grounds for forming its belief that Mr Burdett had committed gross misconduct. An admission of guilt in relation to the assault did not constitute an admission of gross misconduct. It held that the Tribunal should have considered whether there were reasonable grounds for concluding that Mr Burdett had committed the misconduct wilfully. Mr Burdett’s mental illness should have been considered, together with whether his decision to stop taking his medication was wilful.

The EAT emphasized that dismissal for gross misconduct does not always fall within the band of reasonable responses. The Tribunal had not given any regard to the mitigating circumstances or considered why Mr Burdett had stopped taking his medication.

Discrimination arising from a disability

The EAT considered how Aviva had carried out the balancing exercise between on one hand taking potentially discriminatory action against an employee, against protecting a legitimate need (maintaining appropriate standards and safeguarding employees). The EAT said that there should have been a critical evaluation of the justification for the action. It concluded that Aviva should have considered other means available in order to achieve its legitimate need, for example requiring Mr Burdett to work from home.

This is perhaps quite a surprising decision given the facts involved. However, it demonstrates that culpability by the employee is needed in cases of gross misconduct, particularly if there are concerns of mental illness.

The case also highlights that employers should always consider any mitigating circumstances and possible alternative sanctions in cases of gross misconduct resulting in dismissal.

In relation to the discrimination implications for employers, this case serves as a reminder that employers should always consider whether any potentially discriminatory treatment can be objectively justified as a means to achieve a legitimate aim.

In the news

ACAS has published the first six months’ figures for Early Conciliation. They show that:

• Over the first six months, ACAS has conciliated 37,000 cases.
• 3% of Early Conciliation requests came from employers
• 10% of employees reject the offer of Early Conciliation once the form has been submitted.
• 10% of employers decline to engage in the conciliation once contacted by ACAS.
• It is anticipated that 18% of Early Conciliations have resulted in a COT3, and of the remaining that did not result in settlement, around 66% have not progressed to a claim.

If you have any questions about the content of this article please contact Alexandra Gess or Sejal Raja

Alexandra Gess
020 7227 6700

Sejal Raja
020 7227 7410

© Radcliffes LeBRasseur
November 2014


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