November 26 2007 Employment Law Enews

Welcome to the latest edition of Steeles Law Employment Enews

HOME WORKING TRIAL A REASONABLE ADJUSTMENT?

In this case, the Employment Appeal Tribunal (EAT) upheld the employer's appeal against a finding of disability discrimination and indicated that a trial period of working from home would be unlikely, in itself, to amount to a reasonable adjustment under the Disability Discrimination Act 1995.

Facts

Mrs Rowan, a part-time clerk/typist, suffered from a long-term back injury. In September 2003 she commenced a period of sickness absence and did not return to work. By November 2003, she had made it clear that she did not want to be rehabilitated in the workplace. She requested to work from home on a number of occasions, but this request was refused.

The Agency commenced its capability procedures in November 2005. Rowan sought ill health retirement on the grounds she was unable to work at all. She also lodged a formal grievance, which was not upheld. Rowan resigned on 26 January 2006.

The Employment Tribunal upheld her claim of constructive dismissal. Her disability discrimination claim was also upheld, principally due to the Agency's refusal to consider a trial period of home working.

Held

The Agency appealed to the EAT on the grounds the tribunal had failed to give sufficient reasons for its decision. In particular, the tribunal had failed to give an adequate explanation as to why working from home would have alleviated any disadvantage Rowan had suffered. The EAT upheld the appeal and remitted the case to a new tribunal to determine the issue of disability discrimination. The appeal against the finding of constructive dismissal was dismissed.

Comment

This case should be treated with caution by employers. The EAT indicated that it regarded a trial period as a tool which might enable the parties to determine whether home working is in fact capable of being a reasonable adjustment. There will therefore be cases where a trial period might still be appropriate before dismissing the idea of home working as a reasonable adjustment.

EMPLOYEE NOT ENTITLED TO WORK

The Court of Appeal has held that an employer's genuine (but mistaken) belief that an employee is no longer entitled to work in this country, can amount to "some other substantial reason" for a fair dismissal.

Facts

Ms Klusova was employed by the London Borough of Hounslow under a visa which was due to expire on 15 May 2004. She applied for leave to remain and continued working, pending a response for the Home Office.

Hounslow subsequently sought documentary proof from Ms Klusova that she was entitled to work, which she failed to produce. The Home Office provided Hounslow with a copy of a document stating that Ms Klusova was prohibited from taking employment. Hounslow therefore took the view that to continue to employ Ms Klusova would breach a statutory restriction, so she was dismissed with effect from 10 August 2005. No statutory dismissal procedure was followed (it is not required in situations where there is a breach of a statutory restriction).

The Home Office later confirmed that Ms Klusova had applied for indefinite leave to remain and that her original leave was deemed extended until her application was refused. Ms Klusova's subsequent claim for unfair dismissal was upheld by the tribunal, but Hounslow's appeal was upheld by the EAT.

Held

The Court of Appeal agreed with the tribunal that Ms Klusova had made a valid in-time application for leave to remain and therefore her continued employment was not in breach of a statutory restriction. In order for a dismissal to be fair for this reason, there had to be an actual breach; it was not enough for the employer to hold a reasonable belief that the employee was in breach. However, the dismissal could have been fair for "some other substantial reason", if the employer had followed the statutory dismissal procedure.

Comment

Employers should ensure that they investigate the position thoroughly before dismissing on the grounds that to continue to employ would breach immigration restrictions. This case demonstrates that it will not necessarily be enough to rely upon information provided by the Home Office. In any event, employers should always follow the statutory dismissal procedures in case they need to rely on the fallback position of establishing "some other substantial reason" for the dismissal.

EMPLOYER COULD EXERCISE MOBILITY CLAUSE IN A REDUNDANCY SITUATION

In the recent case of Home Office v Evans the Court of Appeal considered whether an employer is legally entitled to invoke a mobility clause when a redundancy situation might arise or has arisen on the closure of part of a business.

Facts

Mr Evans and Mr Laidlaw (the claimants) were Immigration Officers based at the Waterloo International Terminal (WIT).

The Home Office sought to enforce the claimants' contractual mobility obligations on the closure of immigration control at WIT. On 13 May 2004 the closure of WIT was announced and in a letter to all WIT staff the Home Office stated that it wanted to engage with staff individually to offer alternative employment. Staff were informed that mobile staff might be compulsorily transferred to meet business needs within their terms and conditions of employment and non-mobile staff might be transferred to posts within reasonable daily travelling distance. Despite repeated attempts to arrange meetings with them, the claimants refused to engage in the process.

On 13 August 2004 the Home Office informed the claimants that they would be transferred to Heathrow. The claimants subsequently resigned from the Home Office and presented claims alleging that they were non-mobile grade employees and that their resignations amounted to constructive dismissals.

Held

The Court of Appeal overturned the tribunal's and the EAT's decision that the claimants had been constructively unfairly dismissed. The claimants were mobile staff and the Home Office had not acted in breach of its duty of trust and confidence by relying upon the mobility clause. The question to be considered is whether the Home Office was legally entitled to invoke the mobility clause (which it was) and not its motive for deciding not to follow the redundancy procedure.

Comment

This case highlights that where there is a contractual mobility clause, an employer can exercise it even in a redundancy situation, provided it makes clear that this is what it is doing from the outset.

DRUNKENNESS AT WORK THROUGH ALCOHOLISM IS CONTRIBUTORY CONDUCT

In the recent case of Sinclair v Wandsworth Council, the EAT considered whether an employee's dismissal for drunkenness as a result of alcoholism was unfair and, if so, the extent to which the compensation for loss of earnings should be reduced.

Facts

Mr Sinclair worked for Wandsworth Council (the Council). In January 2006 he was caught drinking on duty, in breach of the Council's disciplinary code. On investigation of the matter, he told his manager that he was an alcoholic. The manager told him that drinking on duty was a serious disciplinary offence but that disciplinary proceedings would be put on hold if he agreed to a referral to the Occupational Health Service (OHS).

At first, Mr Sinclair was reluctant to see the OHS. However, after being told that in order to keep his job he would have to cooperate with the OHS, he consented.

At a disciplinary hearing at the end of March 2006, Mr Sinclair was issued with a final written warning. Four weeks later, he was again drunk at work. He was suspended, pending an investigation, during which he falsely claimed that any alcohol in his system must have been from the previous night, and he also falsely stated that the OHS had referred him for counselling.

At a further disciplinary hearing, Mr Sinclair argued that the hearing should be adjourned as he was cooperating with the OHS. However, that request was refused and the hearing went ahead. Mr Sinclair was found to have been unfit to work through drink and, taking into account his previous final written warning, was dismissed. Mr Sinclair brought an unfair dismissal claim.

Held

The EAT agreed with the tribunal in its finding of unfair dismissal. In particular, Mr Sinclair had not been provided with a copy of the Council's alcohol policy and had not been told clearly what he needed to do in order to avoid dismissal. It also held that the tribunal was entitled to limit compensation to four weeks' loss of earnings. In respect of contributory conduct, the EAT held that the tribunal was wrong to take the view that Mr Sinclair's alcoholism was an illness and therefore the alcohol-related incidents could not be classed as contributory conduct justifying a reduction in compensation. The case was remitted to the tribunal to decide the amount of any further contributory fault reduction.

Comment

This case highlights that the tribunal should take account of the employee's misconduct when assessing contributory fault, and should not ignore it merely because it was caused by illness.

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