The problem with the law, I find, is that it never stays still and I think that’s true especially with employment cases. You have the extra appeal court and between the Trade Unions and UK Businesses, there is a lot riding on the decision that gets made. Even more so when the decision gets put down by the Appeal Courts.
This month I’m going to tell you about three Judgments that have come out this year and will offer you some food for thought over how you manage your staff and the risks associated with litigation.
Chidzoy v British Broadcasting Corporation [2018] – Employment Appeal Tribunal
In some of my cases, I will instruct a Barrister to provide me with an advice over how to manage a particularly difficult or unusual case, other times my Client may want a second opinion, which is pretty standard in this industry. On every advice though, a Barrister will give a percentage of how likely he/she believes the case will be successful. In all my time reading these advices, I’ve never seen anyone assess prospects of success in excess of 70%. The reason for this? Well, Barristers know better. They know that you can prep for a case. You throw blood, sweat, and tears into your case and on the day of the hearing, the ONE thing standing between you and victory is… your client.
This is probably how Ms. Chidzoy’s advocate felt in her case, but not in the usual way whereby someone crumbles in the witness box or they say something that is interpreted in an unfortunate way. No, on day 4 of a 5-day Tribunal, Ms. Chidzoy was seen by the Respondent talking to a Journalist about her evidence despite being told and reminded on numerous occasions by the Judge not to do so.
The Respondent applied for the claim to be struck out in accordance with the Tribunal’s rules and the Judge agreed. His comments were (paraphrased):
“How can we believe anything that you have said in your evidence if you cannot follow the simple instruction to not discuss your evidence with anyone outside this Courtroom”.
The decision was then upheld by the EAT.
The moral of the story here is, make sure your witnesses are solid. If you’re being told your case is a 50:50 but you’ve got that niggling feeling in the back of your mind that your witness may fold like an origami crane then, odds are, your case isn’t 50:50 at all, it may just be destined to fail.
Riley v Sandwell Metropolitan Borough Council [2018] Supreme Court
Anything that gets to Supreme Court level will usually get into the news, so I would be surprised if you had not heard of this case.
Ms. Reilly was a teacher and had an acquaintance, the level of intimacy that her and her acquaintance shared was subject to debate but eventually rendered moot. There was evidence that money was loaned between the two and they went on holiday together. Accordingly, that was all the school deemed necessary to sack Ms Reilly upon finding out that her acquaintance was once convicted of holding indecent images of children. They argued that failure to disclose this association amounted to gross misconduct.
She sued for unfair dismissal for the dismissal itself as well as procedural unfairness at the appeal stage. She lost the claim for dismissal and won for procedural unfairness. However, suffered a 90% Polkey reduction in compensation due to the severity of the breach.
The Supreme Court ruled that there was an implied contractual obligation in place to ensure the safety of students to which Ms. Reilly was in breach and the employer was well within its right to conclude that she was no longer a suitable person to be employed within a school.
This case helps solidify the breadth of duties owed by employees to their employers, but there is a question how far the employee’s duty must go. It’s well established that relatives or a Partner would fall within this parameter when they have been convicted of such an offense. This now looks like it extends to friends or even associates. Either way, it could be worthwhile telling your staff if you’re in such a position and or operate within a regulated industry.
City of York Council v PJ Grosset [2018] Court of Appeal
Whenever I get an enquiry about disability discrimination I always feel like my Client has to walk barefoot on a Lego beach and just when you think you understand s. 15 Equality Act 2010, the Court of Appeal goes and throws down a decision like this!
Mr. Gosset was a special needs teacher and also suffers from cystic fibrosis, which I fully acknowledge is a terrible ailment to be afflicted with. It was found that adjustments had been made under a previous Headteacher but not under the new administration.
Mr. Gosset was under severe stress and in this impaired mental state and made the lapse in judgment to show a 15-year-old class a 18-rate film without authority from the school or the parents (the film was Halloween if you’re interested).
The Tribunal found that Mr. Gosset had shown the film when suffering from an impaired mental state due to stress at such a high level that errors in judgment might be expected to arise as a result.
Thus the issue revolved around the proper construction of s.15 and how the Tribunal must look at the two causative issues.
1 is easy… the “something” was showing the film. Then Mr. Gosset had to show that showing the film was causally linked to his cystic fibrosis. The Court was satisfied that the film was shown as a result of the high stress levels which arose from his disability when increased demand was placed on him.
The scary part of this judgment shows that the employer does not have to be aware that the “something” arose from the disability. The Tribunal must assess objectively whether the “something” arose from the disability. Hence why one should always tread carefully with these cases from the outset.
I spoke to a few colleagues at a recent Employment Law Conference about this case and it seems that this decision is not being appealed to the Supreme Court. So we’re seemingly stuck with this decision for the foreseeable future.
Whether the unfavourable treatment was justified is also an objective question, unlike the fairness of a dismissal, so it is possible for a dismissal to be fair under s. 98 Employment Rights Act 1996 but not justified under s. 15 Equality Act 2010.