In an interesting and not uncontroversial EAT decision, which may yet be the subject of further appeal, Panayiotou v Chief Constable of Hampshire Police holds that the way in which the employee behaved in disclosing and pursuing his whistleblowing allegations was a fair reason for his dismissal which was not connected to the fact of his whistleblowing. His judgment differs from the decision by the EAT in Woodhouse v West North West Homes Leeds Limited where the EAT held that it would be “an exceptional case” where the disclosure of the protected acts could not be said to cause the detriment concerned. In the current case the judge took the view that there was no additional requirement for the circumstances to be exceptional, because here the way in which the disclosures were pursued was unacceptable to the employer and thus the reason for dismissal.
Articles by ‘Gemma Ospedale’
A consultation on proposals by HM Revenue & Customs (HMRC) that would allow the department to recover tax and tax credits directly from debtors’ bank accounts without the need for a court order has been criticised by lawyers.
In Chindove v William Morrisons Supermarket Plc, the EAT has held that the employee’s absence from the workplace due to illness prior to resignation was relevant to determining whether the delay in resigning in the face of the fundamental breach was fatal to a constructive dismissal claim. The EAT held that the test for constructive dismissal was one of conduct, not of time, and because the individual delayed resigning because he was on sick leave did not mean that it was easy to draw an inference that the delay precluded a constructive dismissal claim.
Yizen Li v First Marine Solutions and another is a case concerning the employer’s deduction of sums equivalent to the employee’s notice period where she refused to work it on resignation. The employee resigned claiming constructive dismissal. She had a notice period of 1 month. She claimed that she had sufficient holiday remaining to allow her to remain away from work for the period of her notice. The company argued that she had already exhausted her holiday entitlement so she would need to work her notice; but she refused.
In Hainsworth v Ministry of Defence the Court of Appeal has held that an employer has no duty under the Equality Act to make reasonable adjustments for someone who has a disabled child. Under the wording of the Equality Act, the reasonable adjustment duty only applies to people who are disabled and not those looking after disabled people. Neither does the Equal Treatment Directive require adjustments to be made for non-disabled people.
In AB v Chief Constable, the High Court has ruled that an employer who provided a standard reference with a disclaimer cannot provide a further reference when asked to do so by a prospective employer.
In a case which may have serious implications for employers, the Advocate General has given his Opinion to the ECJ that severe obesity may amount to a disability under the EU Equal Treatment Framework Directive. The case of Kaltoft v Municipality of Billund deals with an individual who was employed as a child minder in Denmark and was dismissed because he was severely overweight. He is 1.72 metres tall (around 5 feet) and weighs around 25 stone, with a BMI of 54. Under the World Health Organisation Classifications he would be classified as class 3 obesity which is described as “severe, extreme or morbid obesity”. His claim before the Danish Court was referred to the ECJ to ask the question whether obesity fell within the discriminations prohibited under EU law.
In a month of a clutch of cases on whether or not enhanced redundancy policies are contractual, Allen and others v TRW Systems Limited is another Court of Appeal judgment in a case concerning the terms of an enhanced redundancy payment policy. The employer’s redundancy policy required it to pay an enhanced severance package comprising 3 elements. On at least 3 occasions, the employer had mistakenly included a fourth element. When it realised it did not have to do this, it stopped doing so and subsequently made redundancy payments, both voluntary and compulsory, utilising a different payment policy. The Claimants, who were made redundant in 2012, received statutory redundancy payments only and brought claims for breach of contract.
In CSC Computer Science Limited v McAlinden and others the Court of Appeal has upheld the EAT and ET decisions that the conduct of the employer in awarding pay increases each year when salary reviews took place in accordance with RPI had become an implied term through custom and practice.
In Peacock Stores v Peregrine and others the EAT has upheld an Employment Tribunal decision that an enhanced redundancy payment term which was nowhere in writing but which was confirmed by the former head of HR as custom and practice, and for which there was clear evidence that it had been used over a number of years, was an implied term upon which three employees who were made redundant and who were not paid in accordance with the enhanced terms were entitled to rely. The Tribunal looked at redundancies which had taken place in the company over several periods dating back 30 to 40 years and concluded that, although the practice was not completely consistent, it was sufficiently evident to become an implied term through custom and practice.
The Government’s worst kept employment secret is now in force. All employees with at least 6 months continuous employment now have the right to request to work flexibly irrespective of whether or not they have children or dependents.
Another case involving a law firm, that of Clyde & Co LLP and another v Bates van Winkelhof, has now reached the Supreme Court.