2018 Employment Law Cases with a Lasting Impact

2018 was another busy year for businesses. Over the course of the year, there have been numerous landmark employment cases that employers need to be aware of as these important updates could have huge implications for your business. In this article, Victoria explores three key cases that have been decided this year.

Talon Engineering Ltd v Smith [2018] UKEAT/0236/17/BA

What are the facts?

The appellant company appealed against a decision that it had unfairly dismissed the respondent employee. The company had refused to postpone a rescheduled disciplinary hearing by 10 days so that the employee’s trade union representative could attend.

Even though there was a potentially fair reason for dismissal, the refusal to postpone for a short time period rendered the subsequent dismissal procedurally unfair even though it was not in breach of the right to be accompanied provisions (this would only require an employer to agree to request to postpone a hearing if the suggested rescheduled date is within 5 working days of the original date).

The EAT held that the employer had acted unreasonably in their refusal to postpone.

So what are the effects for employers?

Employees should be encouraged to explain their actions at their disciplinary hearing and all reasonable steps should be taken to ensure attendance.

There can be some cases of employees who are clearly trying to prolong matters unnecessarily or acting in bad faith, and situations where the process has been going on too long. In some of these cases, it will be deemed reasonable to proceed with a disciplinary hearing in the absence of an employee. 

However, employers need to consider the consequences of refusing what could be a reasonable request. Even if the request is for more than five working days after the original date, a request to postpone should be considered on its own merits. 

The employer’s overriding obligation is to act reasonably and this may involve a degree of flexibility in the process.

Mencap v Tomlinson-Blake [2018] EWCA Civ 1641

What are the facts?

The Court of Appeal held that carers who are required to sleep-in at work are not entitled to the national minimum wage while they are asleep.

Overturning the previous EAT decision, the Court of Appeal held that only time spent awake and ‘actually working’ should be included in the calculation of national minimum wage entitlements, even if facilities for sleeping are provided by the employer.

So what are the effects for employers?

This will depend on the wording in the employee’s contract, but the position is that employers do not need to pay an employee whilst sleeping. In this case, it is only when the employee is awake and actually working, will the time be payable. This will include time taken to get dressed and prepared for work.

But there are many questions to consider. Does the judgement cover your specific sleep-in arrangements? If your contracts are silent on the point of sleeping and do not specify periods in which employees are entitled to sleep, is the employee entitled to receive payment for the whole period they are on site? Whilst this time may not be payable for NMW purposes, it will still count towards an employee’s working time. Therefore you must ensure that you are adhering to the Working Time Regulations and providing adequate rest breaks to employees. 

City of York Council v B J Grosset [2018] EWCA Civ 1105

What are the facts?

The Court of Appeal has confirmed that dismissing an employee on grounds of misconduct may amount to discrimination arising from disability in circumstances even where the employer is not aware of a causal link between the relevant conduct and an underlying disability.  Whether or not actions are caused by disability are to be assessed on an objective, rather than a subjective basis.

The employee, Head of English at a secondary school, suffered from cystic fibrosis. His employer was aware of this, accepted it to be a disability and had initially made reasonable adjustments to his teaching schedule to accommodate his health needs. In 2013 a new Head Teacher, Mr Crane, was appointed and new performance standards were introduced. Mr Crane was not briefed about the Claimant’s reasonable adjustments agreement, and as a result of management innovations and a new syllabus, the Claimant’s workload increased significantly.

The Claimant wrote a letter of complaint, but no effective steps were taken, and he became increasingly stressed. During a period of acute stress, he took the decision to show an 18-rated horror film to underage students without consent from parents or the school. Upon discovering this, the employee was disciplined and dismissed for gross misconduct. The disciplinary panel actively considered, but rejected, the idea that his decision to show the film had flowed from the stress he was under, or his underlying health issues. 

The employee alleged that his employer's actions amounted to unfavourable treatment because of something arising in consequence of his disability (Section 15 Equality Act 2010 as it applies in GB) which therefore met the criteria for a successful discrimination arising from disability claim.

The Court held that the Respondent had failed to make reasonable adjustments for the Claimant during the autumn of 2013 when his workload increased significantly. It also held that the Respondent’s treatment of him during that time had been unfavourable treatment because of something arising in consequence of his disability, which the Respondent could not justify.

So what are the effects for employers?

This ruling can cause issues for employers; dismissal or disciplinary action could be discrimination arising from disability if there is a genuine connection between the disability and the capability or conduct issue even if the employer is not made aware of the connection. So even where an employer reasonably satisfies proper disciplinary proceedings and believes that an employee's actions are not due to a disability, they may still be liable for discrimination.

It is vital for employers to keep detailed records of reasonable adjustments made and keep these under regular review. It is also prudent to obtain medical evidence when concerned about the actions of a disabled employee, to obtain a second view on whether these could be a result of their medical condition.

N.B. The Equality Act 2010 does not apply in Northern Ireland. Instead, the laws promoting equality of opportunity for people with disabilities and outlawing disability discrimination are found in the Disability Discrimination Act 1995.