1. Burke v Turning Point Scotland ETS/4112457/2021 (27 May 2022) – (LINK)
In this case, the Employment Tribunal (“ET“) held that an employee with long COVID symptoms qualified as disabled for the purposes of the Equality Act 2010 (“EqA“).
The Claimant was employed by the Respondent as a caretaker and had close to 20 years’ service. In November 2020, he contracted COVID-19, and only experienced mild symptoms. However, he began to develop headaches and chronic fatigue. For example, he had to lie down to recover after walking, showering, or getting dressed, and could not carry out normal household activities, such as cooking or shopping. He also experienced joint pain, loss of appetite, a reduced ability to concentrate and sleeping difficulties. He was off work on sick leave from November 2020. An occupational health report prepared in April 2021 stated that the Claimant was fit to return to work and that the disability provisions of the EqA were unlikely to apply. However, the Claimant did not return to work because he found the effects of long COVID kept returning. These symptoms would improve marginally, and then return to being extremely debilitating. A further occupational health report, prepared in June 2021, noted that the Claimant was experiencing daytime fatigue, but again indicated that it was unlikely he was disabled within the scope of the EqA. GP notes covering the Claimant’s absence did not provide details of his illness.
The Claimant was dismissed on 13 August 2021 for capability reasons. He brought disability discrimination claims against the Respondent, and the ET had to determine whether the Claimant was disabled within the meaning of the EqA during the period from November 2020 to August 2021.
The ET held that the Claimant gave credible evidence about his illness, and that as sick pay had ended in June 2021, there was no financial incentive for him to exaggerate his symptoms in order to get more time off. He had also been employed by the Respondent for 20 years; in light of this the ET considered that it was unlikely he was pretending to be unfit for work when he was not. The Respondent had written that the Claimant was “too ill to return to work” in its dismissal letter to him, which reinforced the view that the Claimant’s account was credible, and that he was ill for the entire period from November 2020 to August 2021. The ET held that the symptoms the Claimant was experiencing did prevent him from carrying out daily activities, so in his case, post-viral fatigue syndrome, or long COVID, fell within the definition of a disability under the EqA.
This case highlights that long COVID can potentially be considered a disability under the EqA, provided that it meets the threshold of an impairment which has a substantial and long term (more than 12 months) adverse effect on an individual’s ability to carry out day to day activities. With June 2022 ONS statistics suggesting that 2 million people in the UK are suffering from symptoms of long COVID, many employers will need to tackle issues related to this condition in the coming months and potentially years. The case also highlights the dangers of over-reliance on occupational health reports in support of an argument that someone is not disabled within the scope of the EqA: all of the circumstances, including the employee’s own evidence of the impact of an impairment, will be taken into account by tribunals when determining the question of disability.
2. Department for Work and Pensions v Boyers [2022] EAT 76 – (LINK)
In this case, the Employment Appeal Tribunal (“EAT“) held that an Employment Tribunal (“ET“) was correct to find that the Claimant’s dismissal was discrimination arising from disability because it could not be justified as a proportionate means of achieving a legitimate aim.
The Claimant worked for the Respondent as an administrative officer in Middlesbrough. In December 2013, an occupational health report gave a view that she was disabled for the purposes of the Equality Act 2010 (“EqA“) because she suffered from recurrent migraines. After this diagnosis, the Claimant started having issues with a colleague, who she thought was bullying and harassing her. Following several requests to move desks so she was away from the colleague, which were refused, she disclosed that she had been treated for depression, panic attacks and stress as a result of her colleague’s behaviour. This situation continued until 2017, when the Claimant was absent from work with work-related stress. She said that she was willing to return to work, but not at the Respondent’s Middlesbrough office, so was sent to an alternate location for a six-week trial period. The Respondent thought that the six-week trial was not successful, so informed the Claimant she would be returning to the Middlesbrough office. She refused and remained on sick leave. The Respondent then dismissed the Claimant by reason of capability due to her low levels of attendance. The Claimant issued ET complaints, including a claim that she had been treated unfavourably because of something arising in consequence of her disability (discrimination arising from disability). Where such unfavourable treatment is established, an employer may only avoid liability if it can show that the treatment was a proportionate means of achieving a legitimate aim.
The ET held that whilst the Respondent had put forward legitimate aims of protecting public resources and/or reducing the strain on other employees caused by the Claimant’s absence, the decision to dismiss the Claimant was not a proportionate response. On appeal (reported in our July 2020 update), the EAT held that the ET had erred the way it reached its decision; it should have conducted a balancing exercise between the employer’s legitimate aims, and the discriminatory effect of the dismissal, but had failed to do so. The EAT remitted the case to the ET to assess that issue again. The ET came to the same conclusion, and the Respondent appealed again.
This time, the EAT held that the ET had been correct to find that the Claimant’s dismissal was disproportionate (and therefore discriminatory) because the Respondent had failed to properly evaluate the trial period she had spent at a different office. If they had done so, this may have prevented her dismissal. The EAT held that when assessing proportionality, the ET should not be constrained by the terms of an employment contract relating to, for example, place of work. Without taking into account the Claimant’s trial at another office, the Respondent could not show that her dismissal was a proportionate means to achieve its aims.
This case highlights the importance of employers carefully evaluating alternatives to dismissal when considering ending the employment of a disabled employee. Ensuring that the duty to make reasonable adjustments for disabled employees, including in relation to place of work, is complied with, may assist employers in demonstrating that a decision to dismiss is justified. Indeed, the Equality and Human Rights Commission’s Statutory Code of Practice states that an employer who fails to make a reasonable adjustment which would have prevented or minimised unfavourable treatment will find it difficult to show that the treatment was objectively justified for the purposes of a discrimination arising from disability claim.
3. Osinuga v BPP University Ltd Legal Team [2022] EAT 53 (21 June 2022) – (LINK)
In this case, the Employment Appeal Tribunal (“EAT“) held that an Employment Tribunal (“ET”) considering a redundancy case should always consider the issues of “fair selection, fair consultation and alternative employment” unless the parties make it clear (explicitly or implicitly) that they are not issues to be determined in the case.
The Respondent made the Claimant redundant, and she brought a claim for unfair dismissal. The Employment Judge at a preliminary hearing decided on the various issues to be determined at the final hearing, but these did not include whether or not the overall redundancy procedure followed by the Respondent had been fair. Ultimately the ET rejected the Claimant’s unfair dismissal claim.
The Claimant appealed, arguing that the ET should have determined whether or not there had been a “fair selection process, fair consultation and reasonable search for alternative employment” but failed to do so. These matters were set out as being central to the fairness of a redundancy dismissal by the House of Lords (as was) in the case of Polkey v AE Dayton Services Limited. Relying on the 1998 EAT decision in Langston v Cranfield University, the Claimant argued that these issues should generally be considered by an ET in a redundancy unfair dismissal claim, regardless of whether they were raised as specific issues by the Claimant.
The EAT found that the ET had correctly decided there was a genuine redundancy situation as defined in S.139(1)(b) of the Employment Rights Act 1996 and had given sufficient reasons for this. However, it agreed with the Claimant that the ET should have considered the issues of whether the Respondent had carried out a reasonable consultation, adopted a fair basis on which to select for redundancy, or taken reasonable steps to seek alternative employment for those at risk of redundancy. The EAT concluded that Langston is a limited exception to the usual rule that an ET should not consider issues unless the parties raise them.
Claimants in the ET are often unrepresented and may not always articulate their claims clearly. Employers should not assume that because a former employee has not expressly alleged that a redundancy dismissal was procedurally unfair, this will not be investigated by the ET. The issues of selection, consultation and alternative employment are so fundamental to the question of whether a redundancy dismissal is fair or not that they will generally be considered by the ET even when not raised expressly as issues before the final hearing. Respondents should therefore be prepared to address them.
4. Ineos Infrastructure Grangemouth Ltd v Jones and others and Ineos Chemicals Grangemouth Ltd v Arnott and others [2022] EAT 82- (LINK)
In this case, the Employment Appeal Tribunal (“EAT”) held that an Employment Tribunal (“ET”) had been correct in finding that the Respondent’s actions in imposing a pay increase when its collective bargaining process with the recognised trade union reached a deadlock amounted to unlawful inducement under section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”).
The Claimants were employees of the Respondents which were entities in the Ineos group. Unite the union was recognised by the Respondents for the purposes of collective bargaining around pay. During pay negotiations in 2016, the Respondents made a pay offer which was rejected. Notwithstanding that they had rejected the offer, Unite’s members authorised the union to continue to negotiate. However, the Respondents took the view that talks had broken down. Accordingly, it gave notice to terminate the collective bargaining agreement and proceeded to make a unilateral pay award to its employees in a letter dated April 2017. The Claimants brought claims against the Respondents for unlawful inducement contrary to section 145B of TULCRA, which forbids employers from making direct offers to employees to whom collective bargaining arrangements apply, and thereby inducing them to circumvent the collective bargaining process in certain cases.
The ET found that the April 2017 letter was indeed an “offer” which was unlawful under section 145B of TULCRA, as the offer had the “prohibited result” (which is that the workers’ terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union) and had been made by the Respondents with the sole or main purpose of achieving that result. In particular, absent a clearly defined collective bargaining process in the Respondents’ agreement with Unite, the ET found that the evidence suggested that there was a reasonable expectation that negotiations between the union and the Respondents were still ongoing and close to agreement (i.e. not at an end, as the Respondents argued), and so this contributed to the “prohibited result”. The Respondents appealed.
The appeal was stayed pending the Supreme Court’s decision in Kostal UK Limited v Dunkley (reported in our December 2021 edition) (“Kostal”), which considered a very similar set of circumstances and confirmed that a one-off direct offer to employees, concerning pay, which bypassed stalled collective bargaining, had been an unlawful inducement.
The EAT upheld the ET’s decision. The ET had been correct to find that the collective bargaining process had not been exhausted at the time the offer was made, and that it would be “anti-purposive” to hold that an employer could avoid its obligations under s 145B of TULRCA simply by stating that any particular offer was a “final” one (as the Respondents had submitted). Finally, the EAT found that the ET had sufficient evidence before it to conclude that the Respondents’ sole or main purpose in making the direct offer to employees was to achieve the prohibited result of circumventing the collective agreement process.
Many employers are currently facing difficult negotiations with unions as the cost-of-living crisis continues to bite. In these circumstances, in the face of perceived “hard ball” tactics from unions, it may be tempting to consider appealing directly to employees. This case confirms that such an approach is likely to be fraught with legal risk. Unlawful inducement entitles each affected employee to claim a mandatory award, currently set at £4,554, so mistakes can be costly. Employers must take care to ensure that collective bargaining processes are allowed to run their course and objectively assess whether the process has truly been exhausted before making direct offers to employees. Careful drafting in collective bargaining agreements can help to ensure that it is absolutely clear to both parties when that process has been exhausted.
For further information please contact:
Alison Dixon, Partner, Bird & Bird
alison.dixon@twobirds.com
1. Burke v Turning Point Scotland ETS/4112457/2021 (27 May 2022)
2. Department for Work and Pensions v Boyers [2022] EAT 76
3. Osinuga v BPP University Ltd Legal Team [2022] EAT 53 (21 June 2022)
