In the round
In this round-up of recent employment cases, Sejal Raja examines rulings on whether a reference, which referred to outstanding allegations that had not been investigated, was lawful; whether the duty to make reasonable adjustments had to have an impact on the disability; and whether an employer is able to dismiss an employee who was off sick but able to work for a second employer.
References
In the case of Jackson v Liverpool City Council, the Court of Appeal considered whether the Council was liable in giving a reference that was true and accurate but referred to allegations that had not been investigated.
Mr Jackson was employed by Liverpool City Council as a social worker. After he left, concerns were raised about his work. The Council decided that the allegations could not be investigated because he was no longer an employee. A year later, Mr Jackson requested a reference from the Council. The reference referred to allegations relating to performance, but it made clear that the allegations had not been investigated. As a result, Mr Jackson did not get a job and remained unemployed for a year. He brought a claim against the Council for damages.
The Court of Appeal held that the Council could not be criticised in providing a reference which referred to allegations, as it had made it clear in the reference that the allegations had not been investigated.
What is clear is that employers still have a duty to make sure that any references are accurate and true. If an employer would like to refer to issues of performance or conduct that have not been investigated then the reference should make it clear.
Duty to make reasonable adjustments
In the case of Foster v Leeds Teaching Hospital NHS Trust, the Court considered whether a reasonable adjustment should have good or real prospects of removing a disabled employee’s disadvantage, capable of amounting to a reasonable adjustment.
Where a disabled employee is placed at a substantial disadvantage by an employer’s policy, criterion or practice, the Equality Act places the employer under a duty to take reasonable steps to avoid the disadvantage.
Mr Foster was a senior security inspector employed by the Leeds Teaching Hospital NHS Trust. In October 2006, following the breakdown of his relationship with his line manager, he went on long-term sick leave owing to stress. He raised a grievance about his treatment, which was dismissed. In January 2008, Mr Foster sought to be redeployed to another department where he would not be working under the manager who caused his illness. The Trust failed to make this adjustment. It was of the view that, having decided his grievance was unfounded, if he could work outside the department, he could work inside the department. He did not return to work and was eventually dismissed on capability grounds in February 2009.
Mr Foster brought tribunal claims for disability discrimination for failure to make reasonable adjustments. In particular, he alleged that the Trust should have made reasonable adjustments to re-deploy him, as there would have been a real or good prospect of him returning to work with the appropriate support.
The Employment Appeal Tribunal held that if there is a real prospect that a proposed adjustment would have removed the disadvantage, it might be reasonable to expect the employer to have made it.
The employer should note that the fact that an adjustment might remove a disabled employee’s disadvantage will not necessarily mean that the adjustment is reasonable. It will depend on a number of factors which include the circumstances of the case and the size and resources available to the employer.
Unfair dismissal of employee working in second job
In the case of Perry v Imperial College Healthcare, the Employment Appeal Tribunal considered whether the decision taken by Imperial College to dismiss Ms Perry was unfair in light of the fact that he was able to work for a second employer.
Ms Perry worked part-time for Imperial College Healthcare NHS Trust and Ealing Primary Care Trust.
The role that she undertook for Imperial College Healthcare NHS Trust was as a community midwife and involved cycling to patients’ homes and climbing stairs in high rise buildings. Due to a knee condition, she was signed off work and received sick pay.
Her second job with Ealing Primary Care Trust was carried out on Monday evenings and was desk-based and 100 metres from her home. Accordingly, it did not have an impact on her knee condition. When Imperial College Healthcare NHS Trust found out that she was still working for Ealing Primary Care Trust and claiming sick pay, they brought disciplinary proceedings against her on the basis that Ms Perry had acted in bad faith in failing to ask permission and deliberately sought to deceive the Trust. Imperial College Healthcare NHS Trust was successful in defending the unfair dismissal claim.
Ms Perry appealed to the Employment Appeal Tribunal. The Employment Appeal Tribunal upheld the appeal and substituted a finding that the dismissal was unfair.
There was nothing to stop an employee claiming sick pay whilst they medically unfit for one job and carrying out work for another for which she is fit.
The HMRC guidance provides that where employees work under two separate contracts and provided the contracts are not with the same employer or associated employers, the employee can claim SSP if incapable of work under one contract but still capable of working for another.
The important point to note from this case is that employers should carefully consider the facts which determines why the employee is able to work for one employer and not the other. The issue that does cause a problem is if the employee is incapable of performing a role for one employer, but then works for another employer and the hours that it would have worked for the first employer. In this case, Ms Perry worked for the other employer during hours that she was not working for the first employer.
Sejal Raja is a partner at RadcliffesLeBrasseur. She can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..
