Adrian Fryer
Acas has published new guidance for employers on using the right to suspend as part of a disciplinary process. Suspension is often touted as a neutral act – to maintain the status quo during an investigation and protect evidence, witnesses, and the business.
However, it can feel anything but neutral to the suspended employee who may be entirely innocent of the allegations raised against them.
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Most employers will have experienced an employee who suffers badly with a bout of Covid, and which then develops into post-Covid-19 syndrome, or ‘long Covid’.
An employment tribunal has looked at a case where an employee tried to bring a discrimination claim linked to her long-Covid, in relation to a dismissal which took place only a couple of weeks after her initial Covid infection.
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Bill Shankly, the first great manager of Liverpool FC, is quoted as saying: ‘Some people believe football is a matter of life and death, I am very disappointed with that attitude. I can assure you it is much, much more important than that.’ Anyone with a season ticket, or who is related to someone with a season ticket, will appreciate that sentiment. Football fandom can seem like a pretty strong and forceful belief when viewed from the outside, especially on match days. But is supporting a football team a philosophical belief, on a par with other religious and philosophical beliefs, which attracts protection from discrimination under the Equality Act 2010? Not according to the employment tribunal at a preliminary hearing in McClung v Doosan Babcock.
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Sophie Robertson
Sophie Robertson (pictured), qualified as a Solicitor in September 2019 and joined Bermans upon qualification as a Solicitor in the Employment team in Liverpool.
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The Women and Equalities Committee survey in 2021 found that that nearly a third of women (31%) had missed work because of menopausal symptoms.
According to the NHS, the menopause is “when a woman stops having periods and is no longer able to get pregnant naturally.”
Unfortunately for those affected several side effects can accompany the physical change, this can include hot flushes, fatigue, memory loss, difficulty in concentrating, headaches, night sweats, low mood/anxiety, and insomnia.
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Normally in employment tribunal cases, the tribunal will only make decisions about issues that are raised in the pleadings (the ET1 and ET3) and/or those agreed between the parties during the case management process. The recent case of Osinuga v BPP University showed that there are exceptions to this general rule. The employee brought claims for unfair dismissal and discrimination. She said she had been targeted for redundancy due to complaints she had made about her pay. At a preliminary hearing, the tribunal identified various issues for the tribunal to decide, including the reason for dismissal. The list of issues did not include a complaint by the employee about the lack of any fair redundancy procedure (fair consultation, selection and a search for suitable alternative employment).
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If an employee wins an unfair dismissal claim, the employment tribunal can award compensation that they consider to be ‘just and equitable’ bearing in mind the employee’s losses. In most cases, there is a statutory limit on the amount of compensation that can be awarded, currently £93,878 or 52 weeks’ pay, whichever is the lower. Section 124(5) Employment Rights Act 1996 says that the statutory cap should be applied after taking account of any payment made by the employer to the employee in respect of the claim. In Dafiaghor-Olomu v Community Integrated Care, the EAT has looked at how the statutory cap works in practice, with surprising consequences.
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Discrimination arising from disability happens when an employer treats an employee unfavourably because of ‘something’ arising from their disability and the employer cannot justify the treatment as a proportionate way of achieving a legitimate business aim. In DWP v Boyers, the EAT examined a case where the employer had legitimate business aims but the actions they took to achieve them were found to be disproportionate.
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Restrictive covenants are terms in contracts of employment which restrict the employee’s activities after employment has ended. They will be void – and unenforceable – for being in restraint of trade unless the employer can show it has a legitimate proprietary interest to protect and the clause goes no further than is reasonable to protect it. If an employer thinks that an employee has breached a restrictive covenant, they can apply for an interim injunction to stop the employee’s activities pending a full trial which will decide whether the clause is enforceable. The court will consider whether the employer has a strong case, whether damages (compensation) would be an adequate remedy, the ‘balance of convenience’ between the parties in relation to an injunction and whether the ‘status quo’ should be maintained pending a trial. In a recent case, the Court of Appeal has analysed the test which the court must apply when making decisions about interim injunctions.
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An employee is constructively dismissed if the employer fundamentally breaches the contract of employment and the employee resigns in response. A breach of the implied term of trust and confidence will be a fundamental breach of contract. The test is an objective one – is the employer’s conduct likely to destroy or seriously damage the trust and confidence between employer and employee? A constructive dismissal can be created by a series of events as well as a one-off incident. If there is a series of incidents, which taken together amount to a breach of contract, the employee can resign in response to the last in the series, even if that in itself is not a fundamental breach of contract (though it cannot be utterly trivial). This is called the ‘last straw’ principle.
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