In Brief: Important Updates from October 2018Posted in : Supplementary Articles NI on 31 October 2018
Last month’s edition of In Brief was a common law catch up outlining a number of recently decided, influential cases. The decisions covered a wide range of employment issues, including sleep-in shifts; holiday pay; disciplinary procedures and disparity of treatment; unfair dismissal and fair procedures; unilateral variation of contractual terms and constructive dismissal; and the importance of reasonable investigations. This month we sought to highlight topical issues and recent trends in the employment law sphere, including, discrimination and equality; vicarious liability; suspension; long-term sick leave; age discrimination; disability discrimination; unfair dismissal and the band of reasonable responses; and health and wellbeing.
Discrimination and Equality
'Gay Cake' Case: Supreme Court Rules in Favour of Ashers
The UK Supreme Court has delivered the much-anticipated ruling in the Ashers v Lee ‘gay cake’ case. The five justices on the Supreme Court were unanimous in their judgement. The high-profile dispute began in 2014 when the bakery refused to make a cake with the slogan "Support Gay Marriage". The owners of Ashers bakery, Mr and Mrs McArthur, sought to appeal the decision of the NICA which previously held that Mr Lee had been discriminated against on grounds of sexual orientation, political opinion and religious belief but this month the Supreme Court overturned that decision. Read our summary of the heavily debated decision.
In Bellman v Northampton Recruitment Ltd  EWCA Civ 2214, the Court of Appeal ruled that the employer was vicariously liable for the actions of a senior manager which led to an employee sustaining brain damage stemming from an incident at a Christmas party. The Court pointed out that liability will not arise “merely because there is an argument about work matters between colleagues, which leads to an assault, even when one colleague is markedly more senior than another...” but stressed what tipped the balance was the fact that the MD exerted his authority at the post-party drinks and that his “position of seniority persisted”.
As if GDPR, data protection responsibilities and potentially huge fines weren’t frightening enough, this case confirms another layer of danger for employers – the vicarious liability of employers for harm caused by the criminal activities of their employees in relation to data breaches.
The decision in WM Morrison Supermarkets Plc v Various Claimants  EWCA Civ 2339 will concern employers as it confirms they can be vicariously liable for actions taken by rogue employees, even when appropriate safeguards have been put in place to protect personal data.
Suspension is a complex area. An employer should generally only consider suspension from work if there is a serious allegation of misconduct, medical grounds to suspend, or where there is a workplace risk to an employee who is a new or expectant mother. We have received several queries on suspension this month, including:
- Can an employee take pre-booked holidays whilst suspended?
- Are employees entitled to paid annual leave that was booked while suspended from work?
- Does an employer have to pay an employee who is suspended?
Long-Term Sick Leave
Managing long-term sickness absence can be a delicate issue. It is important to approach the matter with sensitivity. The employee in question may suffer from a serious, life-threatening illness, they may need time to recover from extensive treatment or a serious operation, or they may suffer from mental health problems. A robust sickness absence policy can aid employees returning to work and reduce the risk to employers facing disability discrimination or unfair dismissal claims.
We have received several queries relating to long-term sick leave this month, including:
- Can an employer contact an employee off on long-term sick leave?
- Can an employer prevent annual leave accruing during sickness absence?
Man Denied Job Opportunity
In the case of Patrick Gerald Matier v Spring & Airbrake Ireland Limited CASE REF: 5465/18, an Antrim man who was told that, at 63, he was too old to apply for a post as a store person/van driver, has been awarded £3,000 by an Industrial Tribunal on grounds of age discrimination.
“I had been keen to get this job,” Patrick Matier said, “and to be told I was too old to even apply for it really shook me. I had been off work for a while and I was trying to get back in to work. It was disheartening and it made me angry that my application could be dismissed in this way just because of my age.”
In its finding, the Tribunal acknowledged that the incident “had the effect of significantly discouraging the claimant. This had been caused entirely by the behaviour of the respondent and this behaviour was motivated by age discrimination.”
Access the full judgment via the link:
Disability Discrimination in the Workplace
In the latest Back to Basics video Jill Gracey, Solicitor in the Employment & Incentives team at A&L Goodbody in Belfast, considers the definition of a disability, when disability discrimination may arise and the relevant anti-discrimination legislation.
Jill refers to other strands of protections afforded to individuals who are disabled within the meaning of the Disability Discrimination Act 1995, for example, associative discrimination, and reminds employers to assess whether any reasonable adjustments need to be made to compensate for any detriment a disabled employee may suffer from as a result of their disability.
One in five British people are suffering erosion of their rights because they are disabled, the Equality and Human Rights Commission (GB) has said in a damning report to the United Nations. The body cites “deeply concerning” evidence that despite government pledges to improve conditions for the nearly 14 million disabled Britons, their situation is getting worse across the UK. More disabled people live in poverty than non-disabled people, and more are bullied in schools, it says. 40% of disabled people do not feel valued by society, according to research by Scope, 50% feel excluded and only 42% feel the UK is a good place for disabled people to live.
People with hearing loss continue to face barriers when applying for jobs and in the workplace, according to a charity. Action on Hearing Loss said employers need to take action to prevent stress and isolation. A survey of more than 1,000 people found over half felt unfairly treated at work due to their hearing loss. The charity said this is despite disability discrimination laws being in place. Five million people of working age in the UK are living with hearing loss or deafness.
Unfair Dismissal and the Band of Reasonable Responses
In the Mr D Nolan v XPO Bulk UK Limited  Case Number: 3200250/2016 case a tanker driver who accidentally spilled fuel on a garage forecourt was awarded £23,000 in compensation for unfair dismissal and was reinstated. The tribunal deemed the dismissal outside the band of reasonable responses, stating “the claimant had made a mistake and this was human error…there was no wilfulness about the claimant’s error”.
In the Mr A Hawkes v Ausin Group UK Ltd  UKEAT/0070/18/BA case, the UKEAT upheld a decision that a Royal Marines reservist was not unfairly dismissed for taking seven weeks' leave to attend a voluntary training course. The manager insisted she would not have approved the absence had she known the course was voluntary and that “it was not sustainable for the business to have the most experienced person in sales out of the business for that period of time”. The UKEAT had to determine whether the respondent’s decision to dismiss fell within the band of reasonable responses.
Health and Wellbeing
Health & Wellbeing: Strategy to Action
We’re all aware of the importance of the health and wellbeing of our staff members. The benefits to both the organisation and the employee can include improved employee morale, increased productivity, decreased staff turnover, reduced sickness absence and increase in the quality of products and services.
So what does health and wellbeing actually mean and how can we really commit to a strategy? In her latest article HR expert Olga Pollock offers advice to employers on how to implement a health and wellbeing strategy effectively.
Almost Half of Business Leaders Feel Forced to Sacrifice Wellbeing
New research has revealed almost half (44 per cent) of bosses in the UK admit they have felt forced to compromise their health and wellbeing as a result of pressure at work. The survey of 352 CEOs and small business owners by Vistage, a peer mentoring organisation, also found a quarter (24 per cent) of leaders have sought outside support to help cope with work-related stress.
The study adds to concerns over the increased pressures faced by senior employees, and the effect on their wellbeing. Earlier this year, research by the Chartered Management Institute revealed managers were facing a mental health crisis, with one in 10 taking time off work for mental health issues in the past year, for an average of 12 days.
CEO and founder of Headtorch Amy McDonald agreed: “Business leaders are not immune. Stress and mental ill-health can happen to anyone at any time, regardless of their position within an organisation.”
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.