We are pleased to provide you with the Herrington Carmichael employment law update for July 2020.
This is a key note summary of some of the main developments in employment law in the last month.
1. Unfair Redundancy – Competitive Interview
The Employment Appeal Tribunal (‘EAT’) has held that a competitive interview process can reasonably be used in considering potentially redundant employees for alternative employment but failing to properly consult can give rise to unfairness.
In Gwynedd Council v Barratt, two teachers were dismissed by reason of redundancy following the closure of the school. Neither teacher was consulted about the redundancies, but informed their employment would be terminated by reason of redundancy when the school closed. Both teachers were invited to apply for roles at a new school, were unsuccessful in their applications, and neither was offered a right to appeal their dismissal. The EAT concluded that, although competitive interviews can be used to select potentially redundant candidates for alternative employment, redundancy consultation must still be undertaken. Although the lack of appeal would not make a redundancy dismissal automatically unfair, in this case employees should have been given the right of appeal.
Fair consultation and giving employees the chance to have their say, are always important in relation to redundancy consultation. There is no immediate right to an appeal in a redundancy dismissal. However, employers should consider carefully whether, in the circumstances an appeal is needed.
2. Is a Decision to Dismiss due to Marriage Breakdown Discriminatory?
The EAT has held that a decision to dismiss an employee due to the breakdown of their marriage could be considered marriage discrimination, but it did not apply to the case they were considering.
In Gould v St John’s Downshire Hill, the Claimant was a vicar who was dismissed due to a breakdown of trust and confidence based on his behaviour. The Claimant alleged that the actual reason for his dismissal was due to the fact his marriage had broken down. The EAT concluded that the breakdown of the Claimant’s marriage was not the reason for his dismissal, and instead the Claimant’s behaviour was the main reason for his dismissal. Had the EAT found that the Respondent’s decision was influenced by a belief that a minister could not continue to serve if their marriage breaks down, then this could be marriage discrimination.
This case is unusual but serves as a reminder to employers to act fairly and carefully consider reasons for dismissing an employee. If an employee is dismissed or otherwise treated detrimentally due to marriage or civil partnership, this can amount to discrimination. Employers should also ensure contracts and policies are reviewed to ensure no discriminatory provisions exist.
3. Disability Discrimination – Comparison with other Disabled Employees
In a preliminary ruling, the Court of Justice of the European Union (CJEU) has indicated that disability discrimination could arise by comparison to other disabled employees.
In VL (Case C-16/19), the Claimant, a Polish worker, was denied a payment from her employer as she had already submitted a disability certificate. Her employer had promised to supply a payment to disabled workers who submitted a disability certificate after a certain date to incentivise them to do so, but did not offer payment to those who had already submitted a certificate. The CJEU has indicated that this could amount to indirect discrimination, even though the Claimant has not suffered a disadvantage in comparison to non-disabled employees. The CJEU has indicated that laws on indirect discrimination could be read to include different treatment of individual members of the same group, potentially paving the way for new types of discrimination claims.
Although this indication is not yet a binding decision, it is in area to keep under review over the coming months. In any event, employers should ensure they are treating employees consistently and treating any disabled employees no less favourably than a non-disabled employee.
4. Unless Order – Non-Compliance may not always lead to Strike Out
The EAT has held that non-compliance with an unless order may not always lead to an entire claim being struck out, depending on how the order is worded.
In Ijomah v Notts Healthcare, the Claimant had an unless order made against them following a Preliminary Hearing. This stated that, if the Claimant failed to comply with previous orders made in the case, the claims “or such of them as any non-compliance relates”, would be struck out. The Claimant continued not to comply with the orders, and the entire claim was struck out. However, the EAT allowed an appeal against the strike out. The EAT stated that if an ambiguous unless order is made, such as the one in this case, it should be interpreted “so far as possible to eliminate or minimise” any effect of depriving a party of a claim or defence which is properly pleaded.
Such orders can be made against any party to a claim, so both employers and employees are advised to carefully consider the wording of any orders made during a tribunal claim, and ensure they are properly complying. Had the order in this case been less ambiguous, the claim would likely have remained struck out leaving the Claimant unable to pursue the claim.
For further information, or to discuss the issues raised by this update, please contact Herrington Carmichael’s Employment Department on 0118 977 4045 or [email protected].
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
