April 2018: Employment Bulletin from 5 Essex Court

Message from the Editors: Dan Hobbs & Clare Harrington

Welcome back to 'Five from 5', the free bi-monthly employment law bulletin created by the employment team at 5 Essex Court in association with Bloomsbury Professional.

Dan Hobbs would like to bid a fond farewell to his co-editor Clare Harrington who he is delighted to announce has been appointed as a Judge of the First-tier Tribunal.

This month's bulletin contains five short articles on (i) dismissal by association; (ii) renewal of fixed term contracts; (iii) knowledge of disability; (iv) new Vento bands; and (v) The Employment Tribunals Handbook.

The editors continue to draw upon the vast pool of experience and knowledge held by the 5 Essex Court employment law team whose members include Queen's Counsel, part-time employment judges and those appointed by the Attorney General to represent the Crown.

We hope that the bulletin will continue to be an invaluable resource to recipients and anyone wishing to join the mailing list should email the team at employment@5essexcourt.co.uk. Alternatively, should you wish to take your name off the mailing list, you can do so by clicking on the link at the bottom of this bulletin.


Dismissal by Association 

Alice Meredith 

Was a headteacher unfairly dismissed for not disclosing her close friendship with a man convicted of making indecent images of children?

In Reilly v Sandwell Metropolitan Borough Council [2018] EWCA Civ 766, a former primary school headteacher had decided not to disclose a close friendship with a man who she knew had been arrested and convicted of making indecent images of children. Whilst the relationship was not sexual or romantic, it was sufficiently close that they had bought an investment property in their joint names.

The headteacher was suspended, then dismissed: her failure to disclose was found to be a serious breach of an implied term of her contract of employment amounting to gross misconduct. Her continuing refusal to accept that she should have made a disclosure caused particular concern.

She brought a claim for unfair dismissal, contending that she had not been under any obligation to disclose the relationship. This was rejected by the ET, EAT and Court of Appeal.

The Supreme Court confirmed that her failure to disclose and subsequent failure to accept this was wrong, did properly merit dismissal. She had been under a contractual obligation to assist the governing body to discharge its safeguarding functions: her relationship engaged those functions.

Lady Hale highlighted two key points of law which could have been considered if raised:

Whether a ‘conduct’ dismissal could be fair if the conduct was not in breach of the employee’s contract; and
Whether the BHS v Burchell approach to conduct dismissals was correct.

Watch this space for a case which gives the court an opportunity to address these points…

Renewal of Fixed Term Contracts

Alistair Hodge

An important point often overlooked by employers is that the non-renewal of a fixed-term contract is treated in law as being a dismissal. An employee whose contract is not renewed may claim unfair dismissal in the same way as any other employee whose contract of employment is terminated by the employer.

In Royal Surrey County NHS Foundation Trust v Drzymala UKEAT 0063/17, Dr Drzymala was a cancer specialist working as a locum for the Trust on a series of six-month fixed-term contracts. When a permanent position became available she applied, but was rejected in favour of another candidate - with the result that her final contract was not renewed.

The Tribunal upheld her complaint of unfair dismissal on the basis that the employer had not given fair consideration to the question of whether Dr Drzymala could have been offered alternative work, and because she had not been given a timely opportunity to appeal against the decision not to renew her contract.

The employer appealed and placed great emphasis on the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. That required that fixed-term employees should be treated no less favourably than their permanent colleagues and be given information about permanent vacancies. The employer had complied with these requirements and argued that that was all it was required to do.

The EAT rejected this argument. The 2002 Regulations existed separately from the rules on unfair dismissal. The fact that the employer had complied with the Regulations did not mean that the dismissal was fair. The standard of reasonableness that applied to the dismissal of a fixed-term employee was no different from that applying in the case of a permanent employee. The expiry of the fixed term itself was a valid reason for dismissal, but when it came to reasonableness the Tribunal was entitled to consider issues such as alternative work and the availability of an appeal - in the same way as for any other employee. The appeal was dismissed.

The case is an important reminder to employers not to take it for granted that the fact that someone is on a fixed-term contract means that it will be easier to ‘let them go’. If they have the necessary two years’ service to claim unfair dismissal, the employer must take care to behave reasonably when deciding that the contract should not be renewed.


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Knowledge of disability and the power of belief

Alex Ustych

Two interesting appeal cases on knowledge of disability were decided in recent times.

The Court of Appeal in Donelien v Liberata UK [2018] EWCA Civ 129 considered a situation where Occupational Health advice, return to work meetings and GP letters suggested to the employer that the claimant was not disabled, but the Tribunal found that he had been. The issue was thus whether the employer could reasonably have been expected to know of the disability. Gallop v.  Newport City Council previously established that employers cannot uncritically accept OH’s unreasoned opinions and simply “rubber-stamp” them. Employers have to make their own decision on disability.

On the facts of Donelien, the OH evidence was not treated as conclusive, but chimed in with other evidence available to the employer from interviews and GP letters. As such, the employer did not have knowledge of the disability. Donelien establishes that significant weight can (still) be placed on reasoned OH opinions, so long as they are not adopted unquestioningly by the employer.

In Toy v. Chief Constable of Leicestershire (UKEAT/0124/17/LA), the Employment Appeal Tribunal considered whether the claimant’s strong belief that he had a disability translated to the employer having knowledge of it. The claimant was a probationary police constable whose services were dispensed with due to performance concerns. He raised a ‘possibility’ of having dyslexia during the termination process. Disability was later conceded, but the Tribunal found that the Force did not have knowledge of the disability at the time of dismissal. Perhaps unsurprisingly, given the claimant’s own lack of conviction in his mooted disability when first raised, the EAT dismissed this appeal and upheld the Tribunal’s ruling that knowledge was absent.


New Vento Bands 

Dan Hobbs 

The President of the Employment Tribunals in England and Wales has issued guidance updating the Vento bands for calculating awards for injury to feelings.

For claims presented on or after 6 April 2018, the bands will be:

Lower band £900 to £8,600;
Middle band £8,600 to £25,700; and
Upper band £25,700 to £42,900.


The Employment Tribunals Handbook  - Latest Edition

The Employment Tribunals Handbook: Practice, Procedure and Strategies for Success, Fifth Edition has been published. The authors and contributors are all members of 5 Essex Court - John-Paul Waite, Alan Payne, Alice Meredith, John Goss and Aaron Moss.

The Handbook provides a clear and comprehensive guide to bringing and defending a claim in the tribunal, covering every stage of the process from pre-action communications through to conducting a hearing.

In addition to commentary on the rules of procedure, the new edition offers strategies that maximise a party’s prospect of success. The highly practical features of the book include its step-by-step structure, the clear examples of rules, tactical insights, useful precedents, templates for drafting key documents and essential forms.

Fully revised and updated, key developments covered in the new edition include the Employment Tribunals Rules of Procedure 2013 (as amended up to 2017) and the incorporation of recent case law, including the Supreme Court ruling that led to the government abolishing fees in 2017.

The straightforward language used means it is not only aimed at experienced employment law practitioners but also those without formal legal training, such as HR professionals and trade union officials.

For more information or to order a copy, visit the Bloomsbury Professional website - www.bloomsburyprofessional.com

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