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Employment law case updates - June 2014

6 June 2014

Here are some recent important decisions of the Courts and Tribunals that highlight key developments in employment law.

No requirement to adjust attendance policy for disabled employees

An employee who had been on long term sick leave received a written warning, advising that failure to improve her attendance could result in her dismissal.  She used annual leave to cover her subsequent sickness absence to avoid further formal action. 

After an unsuccessful grievance, the employee brought a claim before the Employment Tribunal, claiming that the duration of absence that triggered formal action under the employer's attendance policy should have been extended as part of the employer's duty to make reasonable adjustments. 

The Tribunal rejected her claim on the basis that her substantial disadvantage was worry and the threat of losing her job, which would be the same for a non-disabled employee who had the same level of sickness absence. 

The Employment Appeal Tribunal (EAT) dismissed the employee's subsequent appeal, agreeing that the employee was not placed at a substantial disadvantage and noting that the objective of the duty to make reasonable adjustments was to enable employees to return to work or carry out work, which would not have been achieved with her suggested reasonable adjustment.

(Griffiths v Department for Work and Pensions, EAT)

Resigning on more than contractual notice prevented constructive dismissal claim

An employee resigned in response to what he claimed was a breakdown in his trust and confidence in his employer.  He gave 7 months' notice, rather than the 3 months required by his contract. After his employment ended, he claimed that he had been constructively dismissed. 

The Tribunal found that he had affirmed the contract by giving longer than contractual notice.  That is, he had accepted his employer's repudiatory breach of contract and therefore could not rely on that breach in bringing his claim. 

The Tribunal further found that the reason for the long notice was because the employee did not have another job to go to and therefore it was for his own benefit. 

On appeal, the EAT confirmed that the question of whether the employee had affirmed the contract was a matter of fact in each case, it could occur before or after resignation, and the Tribunal had been entitled to reach its conclusion. 

(Cockram v Air Products plc, EAT)

Discrimination: whose motives matter?

This case related to an age discrimination claim brought by a consultant who had provided services to an insurance company.  She alleged that the company terminated the consultancy agreement because of her age: she was 73 at the time. 

The Tribunal found that the company had not discriminated against the consultant as the person who had decided to terminate the contract was not influenced by the consultant's age. 

However, on appeal, the EAT held that the motives of other people, who may have influenced the decision maker, should have been taken into account in the Tribunal's assessment of the reasons for the dismissal. 

In this case there had been a presentation to the decision maker about the services delivered by the consultant. 

The Tribunal should have examined the motives of the people involved in making the presentation to ensure that the company had discharged its burden to show that the decision to terminate was in "no sense whatsoever" on the ground of age.

(Reynolds v CLFIS (UK) Ltd, EAT)

This article was written by Kirsti Laird.

For more information, please contact Kirsti on +44 (0)20 7427 6411 or kirsti.laird@crsblaw.com