Employment Law Digest July 2024 – Case Law Update

Consideration of redeployment in ill-health dismissal

In Budgen v Royal Mail Group Ltd:

• The Claimant, an operational postal worker, was dismissed under the Respondent’s attendance management policy as a result of periods of ill-health absence over a number of years.
• Between 2015 and 2019, the Claimant had 32 periods of absence, amounting to 297 days in total. The Respondent’s managers considered at the time of dismissal that they could have no confidence that the Claimant’s attendance would improve in the future.
• His claims of disability discrimination and unfair dismissal were dismissed by the Employment Tribunal (ET).

The Claimant appealed to the Employment Appeal Tribunal (EAT) arguing that the ET should itself have raised the possibility of redeployment both as a potential reasonable adjustment in respect of the disability discrimination claim and in relation to its determination of the fairness of the dismissal in respect of the unfair dismissal claim. This issue had not been argued by the Claimant before the ET and was not referred to in the list of issues at the ET.

• The EAT dismissed the appeal that the possibility of redeployment as a reasonable adjustment should have been raised with the parties by the Employment Judge. This particular adjustment was not sufficiently clear from the material before the ET. The Tribunal had not erred in law in failing to raise that potential adjustment with the parties itself.
• However, the EAT allowed the appeal that the ET had erred in law in failing to consider the issue of redeployment, as an alternative to dismissal, when determining the fairness of the dismissal. The ET had to determine, in relation to the unfair dismissal claim, whether dismissing the Claimant was within the range of reasonable responses of a reasonable employer. One of the necessary questions in a dismissal arising from ill-health absence, and one which should have been addressed by the ET as a matter of course even if it had not been raised by the parties, was the question of whether there had been consideration of redeployment to an alternative role.
• The claim of unfair dismissal was remitted back to the same ET for further consideration.

Whistleblowing detriment and victimisation: institutional prejudice

In First Greater Western Limited v Moussa:

• In 2012, the claimant made two protected disclosures to the Ealing Broadway station manager, Mr Haynes, concerning the behaviour of a local union leader, Mr Hayes.
• The ultimate outcome of the process was that the claimant and three others were dismissed in 2013 for acting in an intimidating manner towards Mr Hayes.
• The claimant brought two tribunal claims in 2013. The claims were settled on terms that included reinstatement of the claimant and a transfer to Paddington station.
• In 2016, Mr Haynes was transferred to Paddington, where he became the station manager.
• In 2018, an incident occurred which led to the claimant and a colleague (Mr Larkin) escorting a member of the public away from the ticket barriers. The member of the public was subsequently arrested. The claimant and Mr Larkin completed an “assault report form” and Mr Larkin made a formal statement to police. The claimant received assistance with the form he completed as he was not confident using the English language.
• The police later contacted the respondent to complain it appeared that false allegations of assault had been made by the claimant and his colleague.
• Both the claimant and Mr Larkin were suspended pending investigation – something that, under the disciplinary rules, was reserved solely for cases of gross misconduct.
• The respondent had received no written evidence from the police. The decision to suspend was based on a verbal conversation with the station police commander.
• An investigating officer, Mr White, was appointed (who lacked experience). He added a further allegation that the claimant had assaulted or physically restrained a member of the public saying it was “quite clear” the claimant had done so. The employment tribunal subsequently found the investigation was poorly conducted, unfair and unreliable.
• On 21 March 2018, Mr White interviewed the claimant, challenging his account.
• The next day, Mr Larkin retracted his formal statement to police and he was allowed to return to work. He gave an apology for his part in the matter. He did not blame the claimant for the incident.
• Mr White concluded that the claimant should face three charges set out in a letter of 27 April 2018: laying hands on a customer unnecessarily; putting himself at risk despite there being no evidence of a threat; and providing a false statement stating that the customer had pushed the claimant’s colleague when this was not supported by CCTV or other evidence. That letter did not mention gross misconduct, but the claimant remained suspended.
• The claimant was then signed off work sick and missed dates fixed for the disciplinary hearing due to anxiety and stress.
• The claimant complained to the respondent’s managing director, through his solicitor. Ms Czechowicz (a member of the respondent’s HR team) emailed colleagues referring to that letter and said it was from “potentially his friend who writes to us twice a year regarding various concerns Moses [the claimant] has”.
• In the same email, she wrongly stated that Mr Larkin had been unable to write up the assault report form he had signed; in fact, it was in Mr Larkin’s own hand; it was the claimant who had obtained help from another staff member to write up his form. Further, she mentioned that “management team called me”, explaining that Mr Larkin “can be easily led and that Moses is a confident individual who might have a strong influence on individuals such as [Mr Larkin]”.
• After a further solicitor’s letter, the claimant submitted a claim to the tribunal for whistleblowing and victimisation for having done protected acts.
• The disciplinary hearing eventually took place in April 2019, conducted by Mr Hawker who dismissed the allegation of making a false statement and after viewing the CCTV, did not uphold the allegation of laying hands on a customer unnecessarily. He gave the claimant a first written warning for over-zealously putting himself at risk.

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Take Me There

The Employment Tribunal (ET) found:

• Having made two protected disclosures in 2012 and the respondent having accepted that the claimant had done a protected act in bringing an ET claim in 2013, the respondent had subjected the claimant to nine detriments: accusing the claimant of making a false statement about the 27 February 2018 incident; suspending him; Mr White conducting an inadequate and biased investigation in failing to interview three employee witnesses; adding two extra allegations at the end of the investigation; deciding to convene a disciplinary hearing; failing to address the claimant’s formal written complaint made on two occasions through his solicitor; failing to follow the recommendations of the occupational health doctor; failing to liaise with the claimant’s solicitor about the disciplinary process; and failing to pay certain overtime and other pay due.
• The ET found that 8 of the 9 detriments were done because of the protected act and/or on the ground that the claimant had made protected disclosures. They found no causative link in the ninth detriment (withholding due payments).
• The ET found that there was a ‘collective memory’ within the respondent, which was prejudicial to the claimant and which permeated the approach of HR and, in turn, those advised by HR. This was illustrated by Ms Czechowicz’s email referred to above. The ET said: “Taken as a whole we find this email demonises the claimant and is wholly sympathetic towards Mr Larkin. The email shows us that there is a general negative view of the claimant within the management ‘lore’, which we find is connected with the history of the claimant’s employment.”

At appeal stage, the Employment Appeal Tribunal (EAT) found:

• The ET had not erred in finding that the employer had inflicted detriments on the claimant in 2018 on the ground that he had made protected disclosures in 2012 and because he had done protected acts in 2013. The tribunal’s decision was adequately reasoned and none of its findings of fact was perverse.
• There was no procedural unfairness arising from the ET’s findings that a particular employee, Ms Czechowicz, had played a major part in influencing the respondent decision maker, Mr White (who was found not individually liable because he did not know about the protected disclosures and acts dating from 2012 and 2013).
• The ET was entitled to find that the employer had, through that employee and one or more other unidentified employees within its management, perpetuated a culture of prejudice and ill will towards the claimant which encouraged Mr White to treat the claimant unfairly in a disciplinary investigation in 2018, leading ultimately to a written warning in 2019. The EAT said that the “collective memory” prejudicial to the claimant as referred to by the ET was personified and perpetuated by Ms Czechowicz, who demonised the claimant and encouraged Mr White to treat him unfairly. There was no other explanation for the extraordinary way he was treated by comparison with Mr Larkin.
• The ET’s analysis was sophisticated and nuanced: the 2012 and 2013 protected disclosures and acts caused the 2018 detriments through the medium of the ill-will that the respondent’s management, institutionally, bore the claimant”.

Race discrimination and the burden of proof

In Parmar v Leicester County Council:

• The claimant had considerable experience of social work and management. In 2005, she was appointed as a Head of Service for Locality West, one of the service areas within the Adult Social Care and Safeguarding Division. She had responsibility for a number of teams.
• The claimant described herself as a British National of Indian origin.
• There were poor relations between the claimant’s service area, and another service area, Contact and Response, which often extended to conflict between team leaders.
• Following concerns raised about the working relationship between Locality West and Contact and Response, the claimant was temporarily transferred out of her role as Head of Service.
• In February 2021, Ms Lake (Director of Adult Social Care and Safeguarding) decided, following discussion with HR, that the claimant should be taken through a disciplinary investigation. The allegations were vaguely phrased.
• The investigation was subsequently taken over by another director, who watched the Teams interviews that had been undertaken as part of the investigation to date and invited the claimant to a reconvened investigation meeting on 22 April. At that meeting the claimant said: I hope you can understand that I have been interviewed for 3 hours now and I still don’t know what I have failed in. What code of conduct have I failed in? What professional standard have I failed in? Why can’t somebody tell me what I have done wrong? The Employment Tribunal subsequently found there was no substantive reply from the investigating officer to that question despite the fact that she had by then reviewed all of the interviews.
• A further meeting was arranged for 7 May 2021 at which the claimant was to be told there was no case to answer and the process was being brought to an end.
• The claimant presented a claim for race discrimination.
• Information provided after a subject access request identified that the only other Head of Service to be the subject of a disciplinary investigation was a person of Asian origin. The only other person of a comparable grade to the claimant against whom a disciplinary investigation was commissioned by Ms Lake was a person also of Asian origin. Ms Lake had not commissioned any disciplinary investigations against any white employees of a comparable status.
• The Employment Tribunal (ET) concluded that the claimant had been subject to race discrimination.

In a discrimination claim, an ET must apply a two-stage process:

1) The ET has to consider whether it could properly conclude from the facts whether discrimination is a possible explanation for the treatment.

2) Once the ET is satisfied that the claimant has proved facts from which an inference of discrimination can be drawn, the burden of proof shifts to the respondent who must provide a non-discriminatory explanation for its treatment of the claimant.

• The ET decided that the burden of proof had passed to the respondent. The primary reason was the disparity in treatment between the claimant and other white employees who might also have been subject to formal disciplinary investigation but were dealt with informally.
• The ET concluded that the respondent had not established, on a balance of probabilities, a non-discriminatory explanation for the treatment of the claimant. It had not discharged the burden of proof and so the claim for race discrimination succeeded.

The employer’s appeal to the Employment Appeal Tribunal failed:

• In the circumstances of this case, there was no error of law in the ET considering the evidence overall in deciding whether the burden of proof had shifted so that the respondent was required to prove that Ms Lake’s actions were not discriminatory.
• Comparing the treatment of a claimant with that of another person is a subtle business. The analysis is highly context specific. Where such a comparison is made, as part of an analysis of a range of relevant factors, it is not valid to pick apart small components of the comparative analysis, and to trot out the well-worn phrase that there is nothing more than a mere difference of status and treatment, while ignoring all of the other relevant findings of the tribunal that contributed to the overall analysis.
• The core reasoning of the ET was the opposite of a mere difference in status and difference of treatment. A number of employees of different race to the claimant were not the subject of formal disciplinary proceedings in circumstances similar to those in which the claimant was. The similarity of the circumstances, and the fact that a number of employees of different race were treated more favourably, obviously establishes more than a mere difference of treatment and status. If what the ET found is not evidence that could support a claim of race discrimination it is hard to imagine what is. It was the totality of the evidence that resulted in the shift in the burden of proof.

For more information about the cases and how they might affect you contact Katie Adams or another of our expert Employment Law Solicitors.