In Brief: A Case Law SpecialPosted in : Supplementary Articles NI on 4 October 2021
This month’s 'In Brief' is a case law catch up. We’ve handpicked some of the most recent decisions and grouped them by category, so you don’t miss an important decision.
If you want to know more about any of the cases, each has a link to a more detailed case review on the Northern Ireland Employment Law Hub, where you will also find a further link to the full judgement online.
The decisions highlighted in this article cover a wide range of employment issues - redundancy procedures, equality and discrimination and tribunal time limits, including in relation to delays caused by Covid-19.
A cautionary tale for employers on the importance of following their own procedures and good notetaking. The Tribunal saying that the respondent failed to adhere to common sense procedures should put employers on notice to ensure proper procedures are in place for all interactions with employees. Have a policy, follow it and evidence that you’ve followed it.
The EAT has given some sage guidance on the steps the Tribunal needs to take when it comes to refusing alternative employment in a redundancy situation. The first step is to outline all the differences between the old role and the new role. This should then allow for a comparison between the two roles and the effect it would have on the individual moving from one role to the other. It is only after exploring all the differences that the Tribunal can then decide whether the refusal was reasonable or not. This provides some good guidance for redundancy cases that may arise in the future.
With the end of the furlough scheme, it is likely that the redundancy procedure will come to the fore for some employers. This Court of Appeal decision demonstrates the importance of ensuring that the appropriate procedure is followed including consultation, employee engagement and appeals. Whilst Northern Ireland may have a more robust system of procedure for dismissals, the overarching position is that the proper procedure must be followed to ensure that the decision falls within the band of reasonable responses.
Equality & Discrimination
This case demonstrates the approach that must be taken when it comes to reasonable adjustments. It was found that the respondents were aware of the employee’s disability and thus had made reasonable adjustments. However, the Claimant argued they should have done more and should have offered alternative duties, though did not specify what those duties where. The Tribunal gave weight to the organisational aims and operational matters of the respondent, finding that they had complied with the statutory duty to make reasonable adjustments. Whilst this may not apply to every respondent, it does demonstrate that those matters can place limits on what adjustments would be regarded as reasonable.
You may find some useful guidance on making reasonable adjustments for disabled employees in this publication Guidance for Employers in Making Reasonable Adjustments.
This is a lengthy judgment, running to some 90 pages in all. It’s packed with caselaw and a step-by-step approach to the application of statute, so worth a closer look. It serves as a useful guide to when, and why, a case may be anonymised - it will take more than a ‘a vague reference to a preference’ to convince a Tribunal that it’s necessary. This case is also a cautionary tale for employers. It’s not enough to have policies, you must also ensure thorough training for HR and management, and good support throughout any process. There should also be a flow of information between managers to ensure that recurring problems are correctly addressed. The respondents were a large organisation with in-house HR support and comprehensive policies and procedures. But managers were unaware of policies and how to deal with serious allegations of harassment. There was no central way of linking allegations against F. If there had been, perhaps the claimant’s complaints would have been dealt with differently.
Tribunal Time Limits
This case demonstrates the way a Tribunal will examine an extension of time when it comes to discrimination cases. The ‘just and equitable’ aspect is wider than the ‘not reasonably practicable’ that is seen in unfair dismissal cases. However, as the claimant did outline that he had some expertise in this area it worked against him when he sought to have an extension of time. This is the same for those who have been able to rely upon legal advice when the claim is presented out of time. It is important for practitioners to ensure that time limits are complied with and, for those acting for respondents, to ensure that where a claim is out of time that an argument is made to have the case dismissed.
This case demonstrates that there is a degree of flexibility when it comes to allowing an extension of time when it comes to errors in paperwork relating to early conciliation. The Tribunal, practitioners and personal litigants are still having to come to terms with EC and it is useful that the Tribunal recognises some of the difficulties. It is also clear that the effects of Covid-19 and the backlog within the Tribunal is coming to bear with the Tribunal responding slowly to ET1’s and outlining that they have been rejected. This must also be considered for those who must re-submit.
These cases and many more can be found in the Case Law section on the Hub.This article is correct at 04/10/2021
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.