Employment Bulletin – September 2018

Optician was discriminated against following maternity leave

An optician has won her claim of unfair dismissal and discrimination after her employer tried to reclaim training costs following her maternity leave.

The employee signed a training and services agreement which stated that she would be liable to repay any training costs if she left the company within three years of registering as a dispensing optician.

She eventually registered after four years of training. Eight months later she informed the company that she was pregnant and requested to go on maternity leave.

She had only completed 16 months of the three-years post-qualification period. That would continue when she returned from her maternity leave.

When the time came, the employee was reluctant to return at the planned date as her daughter was suffering from health problems.

She asked for more time off in the form of holiday pay or a sabbatical, but her request was refused. She was told that if she resigned she would be liable to repay £11,000 under the training agreement.

She resigned and said that the employer had 'fundamentally broken' their contract due to the way they had dealt with her pregnancy and maternity leave.

However, the employer made a formal demand for the £11,000 and withheld her holiday pay for the final year.

The Employment Tribunal found that there was nothing in the contract that would justify the company pausing the employment for maternity or any long-term absence.

The judge said: "The imposition and use of the 'pause clause' appears to us to be a classic case of unfavourable treatment (because of) maternity leave, and thus unlawful discrimination on the basis of pregnancy or maternity."

Two days made all the difference in employer's right to dismiss

Timing can be crucial when deciding to dismiss an employee, as shown in a recent case before the Employment Appeal Tribunal (EAT).

The case involved an office manager who was dismissed for gross misconduct on 20 September 2016. There was no investigation, no hearing and no appeal.

The alleged misconduct related to her knowledge that a colleague was planning to leave the business, and the employer's view that she was rude and difficult to work with.

The employee's length of service was two days short of the necessary two years needed to bring a claim of unfair dismissal.

She brought her case to the Employment Tribunal, which ruled that her effective date of termination was not the day she was dismissed but the date on which her notice period would have expired a week later. This meant she would be able to bring a claim.

The EAT overturned the decision. It held that although the law provided for the effective date of termination to be at the end of the statutory minimum notice period, that was subject to the employer's right not to give notice.

In cases like this involving gross misconduct, where the employer could lawfully dismiss without notice, there was no statutory minimum notice period, and therefore no extension to the effective date of termination.

However, the tribunal had not made a finding as to whether the employee was guilty of gross misconduct such that the employer would have been entitled to terminate the contract without notice. That question was therefore remitted to the tribunal for it to determine the misconduct issue.

Employee who threatened staff wins unfair dismissal appeal

When dealing with disciplinary issues at work it's essential that employers are consistent in the way they treat different cases.

A lack of consistency can undermine a decision, as illustrated in a recent case before the Employment Appeal Tribunal.

It involved an employee who had made threatening comments about senior staff members on two occasions. At a disciplinary hearing, he apologised for his behaviour, but he was dismissed for gross misconduct.

He brought a claim for unfair dismissal to the Employment Tribunal, arguing that he had been treated differently to a female employee who had kept her job following two incidents of physical violence at work.

The employer submitted that he had not raised the argument at the disciplinary hearing or the internal appeal. It was unaware of the alleged incidents involving the female employee and there was no evidence that he had been treated more harshly than another employee in a comparable situation.

The tribunal did not expressly deal with the disparity of treatment argument and found that the employee had been fairly dismissed for two separate incidents of extreme verbal threats.

The Employment Appeal Tribunal overturned that decision. It held that the tribunal was wrong not to have addressed the argument that the employee had been treated differently to the colleague who had kept her job despite incidents of physical violence.

The case was remitted to a different tribunal for a rehearing.

Woman told harassment claim was 'immature' awarded £15,000

A woman who was told she was "immature" for complaining about sexual harassment at work has been awarded £15,000.

The employee told the Employment Tribunal that for the last two months of her employment she was subjected to sex discrimination by the owner of the business.

She said he made sexual comments and touched her inappropriately on numerous occasions. She told him not to touch her but felt powerless as he was her boss.

The employee also said she was subjected to abuse and unfavourable treatment from colleagues. This would range from derogatory comments about her age and religion to being treated differently to her male co-workers by a colleague.

The employee told the owner about these issues and he began an investigation. However, she didn't feel included in the process and submitted a grievance. She complained about the abusive language and behaviour of her colleague but received no response.

Instead she was dismissed by the owner, who said that she was immature and that the business was "not a kindergarten".

After the dismissal, the employee was signed off work for six weeks as her stress and anxiety had left her feeling physically ill.

She brought complaints to the Employment Tribunal of sex discrimination and a failure to pay her notice pay and holiday pay, saying that she had been dismissed because of the formal complaint she had made against the colleague.

The employer didn't appear at the tribunal, which found in favour of the employee.

The Judge concluded that there were a number of aggravating features. He said "Firstly, it was experienced over a period of three months. Secondly, it involved unwanted sexual advances as well abusive and derogatory treatment on a regular basis. Thirdly, it caused physical and mental illness. Fourthly, it resulted in her losing her job."

He ordered the company to pay £15,000 to the employee for injury to her feelings, loss of earnings, notice pay and holiday pay.

Bus driver who became stranded in flood wins dismissal claim

A bus driver who was fired after driving his vehicle into a flooded area has won his claim of unfair dismissal.

The employee worked for his employer for eight years when the incident happened. He believed that he would be able to get through the flood, but he underestimated the depth of the water.

He became stranded in the middle of the road as the bus filled with water and began to float. There were no passengers on board and on the advice of the police, the employee smashed a window to escape.

The employer dismissed him for gross misconduct, saying that he should have had the foresight not to drive into the water.

The employee brought a claim of unfair and wrongful dismissal. The Employment Tribunal ruled in his favour. It stated that a reasonable employer wouldn't have characterised the employee's behaviour as "gross misconduct".

It added that the employer had failed to provide the employee with training or advice for a situation such as the one he encountered.

The ruling was upheld by the Employment Appeal Tribunal.

Dismissing the company's appeal, Lady Wise said: "The absence of proper training or advice to the claimant about how to respond in the situation he was faced with …were matters known to the respondent at the time of the decision to dismiss… these facts also indicated against dismissal being a reasonable response.

"In short, the claimant's conduct was, taking account of known mitigating circumstances, simply not a sufficient reason to dismiss had the decision been taken reasonably by a reasonable employer."