Read on for our monthly digest for employers on upcoming employment law changes and key, recent employment tribunal cases.
Discrimination and Unfair Dismissal
Ms N Bodis v Lindfield Christian Care Home Ltd
The claimant, who suffered from anxiety and depression, was accused by her employer of various incidents at the care home where she worked, such as vandalising pictures of female staff and turning off the boiler. Following an investigation and disciplinary hearing, she was summarily dismissed and subsequently brought multiple claims, including one for discrimination arising from a disability.
The Tribunal acknowledged that the claimant’s blunt and evasive responses during the investigation were a consequence of her disability. They also recognised that this had influenced the employer’s decision to proceed with disciplinary actions leading to her dismissal. However, the Tribunal concluded that this influence was only “trivial” and not the “effective cause” of the decisions, which were primarily based on other factors.
The Employment Appeal Tribunal (EAT) disagreed with this conclusion. The EAT clarified that to establish liability for discrimination arising from a disability, the unfavourable treatment does not need to be primarily or solely because of the “something arising” from the disability. Instead, it can be a minor component as long as it holds sufficient causal significance. In this case, the claimant’s behaviour was clearly a factor considered by the employer.
Employer takeaways
This case highlights that an individual’s conduct related to a disability, even if it is a minor contributing factor in an employer’s decision, can still constitute discrimination arising from a disability under the Equality Act 2010. Employers must ensure their internal procedures accommodate disabilities appropriately and that any actions taken can be objectively justified.
Discrimination: Liability of Individuals
Baldwin v Cleves School and Ors
The claimant filed claims of direct disability discrimination and discrimination arising from disability against her employer and two individual employees. The tribunal found the employer liable for disability discrimination based on the actions of the two employees. However, it concluded that there employees should not be individually liable for disability-related harassment, considering their actions as a misguided attempt to address a complex situation.
The EAT disagreed and ruled that the employees were also liable, in addition to the employer, for disability discrimination. Employees can only avoid liability for discriminatory conduct if they have been informed by the employer that the act is lawful and they reasonably believe this to be true. This exception did not apply in this case.
The tribunal had determined that the actions of the employees constituted disability discrimination during their employment. The employer was held liable for this conduct under the principles of vicarious liability. The tribunal had no discretion to reassess the conduct when deciding the individual liability of the employees. Since the conduct was already deemed discriminatory, the individuals involved were also liable.
Employment Status
Groom v Maritime and Coastguard Agency
The claimant served as a Coastal Rescue Officer under a volunteer agreement with the Maritime and Coastguard Agency. While some of his activities were unpaid, he was entitled to payment for many others if he submitted a claim. After being dismissed, the claimant sought to assert his right to be accompanied at a disciplinary hearing, a right reserved for employees and workers. To qualify as a worker, the claimant needed to demonstrate that he had a contract with the respondent obliging him to perform services personally.
The initial tribunal concluded that the claimant was not a worker, as there was no contract between him and the respondent when he attended an activity.
The claimant appealed, and the EAT overturned the initial decision, finding that the claimant was indeed a worker during periods when he undertook activities with promised payment. The EAT determined that a contract was formed each time the claimant performed an activity with the expectation of remuneration. The fact that payment was not automatic and that many volunteers did not claim payment was deemed irrelevant. The EAT stated, “When a Coastal Rescue Officer participates in a relevant activity, they are entitled to remuneration. Their participation occurs within a Code of Conduct outlining minimum attendance at training and incidents. …There is no reason these factors should not constitute a contract.”
The issue of whether a contract existed for unpaid activities has been remitted for further consideration.
Disability Discrimination
British Airways Plc v De Mello & Ors
At the time these claims arose, British Airways cabin crew’s remuneration included numerous allowances in addition to their basic pay, paid under various circumstances. The dispute centred on determining which of these allowances should be included in statutory holiday pay, particularly according to EU Law principles.
British Airways provided a fixed meal allowance to cabin crew to simplify expense management. Both sides agreed that this allowance surpassed the actual costs. The tribunal concluded that the meal allowance, or a portion of it, should be regarded as normal pay for holiday purposes since it was directly related to job performance and not merely for incidental expenses.
The Employment Appeal Tribunal (EAT) ruled that the meal allowance given to cabin crew may need to be included in the calculation of statutory holiday pay. The EAT stated that payments closely linked to job duties must be considered in holiday pay calculations, whereas those meant for incidental expenses should be excluded.
The EAT disagreed with the tribunal’s approach of placing the burden on British Airways, emphasising that it was the tribunal’s responsibility to consider all relevant factors and determine the nature of the allowance. The EAT also clarified that the allowance could not be split into separate performance-related and expense-related categories; it either qualified as normal pay or it did not.
This decision outlines the approach to defining “normal pay” for these purposes, focusing on whether an allowance should be considered a performance payment, and thus part of normal pay, or an expenses payment, and thus not included in normal pay. It also examines the legal concept of a “series” of deductions in light of the Supreme Court’s decision in Chief Constable of the Police Service of Northern Ireland v Agnew [2023] UKSC 33; [2024] ICR 51.
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Last updated: 24 May 2024
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
