May 31

Employment Law

Posted by gowenstevensadmin on Tuesday 31st May 2016

Dove v Brown & Newirth Ltd,

This is a Tribunals decision on age discrimination and the use of third party pressure justifying dismissal for “some other substantial reason”, reserved judgement given on 2 December 2015 in the Watford Employment Tribunals.

Mr Dove worked for Brown & Newirth Ltd, a small family jewellers, as a salesman. He had done for many years. Some years ago his boss, a much younger person, began calling him “Gramps” both to his face an in e-mails. The nickname caught on and stuck. Everyone called him that. He was miffed, but did not complain. Some of his customers suggested that he was somewhat old fashioned in his approach to his job.

He turned 60. His key sales accounts were transferred to Head of Sales. He was dismissed. The grounds were “some other substantial reason”. The allegation was that the customers weren’t happy dealing with him any more, so Brown & Newirth claimed that third party pressure forced them into it. In fact, this turned out to be untrue to a large degree.

Mr Dove brought a claim for age discrimination and unfair dismissal.

The Tribunals found that his dismissal was in part influenced by the customers’ “stereotypical” views on age. The use of the nickname reinforced to the Tribunals that ageist attitudes were tolerated in the workplace. It was accepted that the nickname was not meant to be offensive, but that did not stop it being discriminatory.

It was also the case that the third party pressure argument did not stand much scrutiny. The observation from one customer came in fact from a junior member of staff, not its boss, and Brown & Newirth jumped on it with rather too much enthusiasm. In these circumstances the employer is expected to fight the employee’s corner to a reasonable degree. This was highlighted in Henderson v Connect (South Tyneside) Limited [2010] IRLR 466. Mr Henderson was a bus driver who ferried children to and from school. A CRB check established that he had been the subject of an allegation of child abuse, even though no prosecution had ever taken place, and was not likely to. The South Tyneside MBC nevertheless, under its contract with Connect (South Tyneside) Limited, vetoed his continued employment as a children’s bus driver, despite vehement protests by Connect (South Tyneside) Limited. This startling abuse of power did not help Mr Henderson. His dismissal, though unjust, was fair, because Connect (South Tyneside) Limited had done everything reasonably possible to keep him on in the face of this third party pressure.

Mr Dove was awarded £63,391.00, of which some £9,000.00 was for injury to feelings.

This is NOT a one off decision. Where a nickname is motivated by a protected characteristic, its use may well be discriminatory. Cases include a wheelchair user nicknamed “Ironsides” (disability) and a Polish worker nicknamed (incorrectly) “Borat” (race).

The moral - don’t tolerate nicknames.

The ACAS Code.

The 2015 Code, which replaces the 2009 one came into force on 11 March 2015.

It does clear up one issue that has been in doubt for some time. This is about the right to be accompanied to disciplinary and grievance meetings, and subsequent appeals. The Code makes it clear that this right is a statutory one that applies to all employees, even if they have less than 2 years’ service, and thus no right to claim unfair dismissal.

Note, please, that this right does not apply to investigation meetings, and never has.

Paisner v NHS England and Coventry City Council [2015] UKEAT

This recently reported case is an illustration both of:

the dangers inherent in giving references by an old employer and of reliance on them by a new one; and

  1. the concept of the reversal of the burden of proof in discrimination cases.

Dr Paisner was disabled. She worked for the City Council until her redundancy in March 2013. During the two years prior to her departure she had several periods of absence for reasons related to her disability.

In a Settlement Agreement with Coventry City Council there was an agreed form of reference. She applied to the NHS for a new job and was accepted subject to satisfactory references.

So far so good. However, whilst a written reference in the agreed form was indeed provided, it was accompanied by an e-mail inviting the NHS to discuss it personally with Dr Paisner’s previous Manager, one Ms Tennant. Ms Tennant therefore quite clearly stepped outside the bounds of the Settlement Agreement.

The NHS took the hint and did just that. Although the contents of the resulting conversation were disputed, the Employment Tribunal found as a matter of fact that the NHS was told by Ms Tennant that Dr Paisner would be unsuitable for the new role. The NHS withdrew its offer.

Dr Paisner went after both Coventry City Council and the NHS. She had a clear claim for breach of contract against the Council, but went further. She said that the Council AND the NHS were guilty of unlawful discrimination on the grounds of disability.

The Employment Appeal Tribunal agreed. As for the Council, there were facts from which the Tribunal could infer that the reason for the negative comments of Ms Tennant was the absences for work that derived from the disability, and so the burden of proof reversed, placing the onus on the Council to show why disability was not a factor in what Ms Tennant said, and on the NHS to show objective justification for relying on a discriminatory reference.

What happened to Ms Tennant is a matter of conjecture. As is the case with these sorts of organisations, she was probably promoted out of trouble.

Cockram v Air Products plc UKEAT/0038/14.

Mr Cockram was a senior employee. He was obliged to give three months notice.

He resigned following an alleged breach of contract by Air Products. However, he gave 7 (seven) months notice, not three (3). He said it was because, essentially, he needed the money.

When he brought his claim, Air Products successfully got a strike out of his claim, and that decision was affirmed by the EAT.

By giving more notice than contractually required he was offering additional performance of the contract. This amounted to an affirmation of any breach of contract by the employer. The case, of course, never got as far as determining whether there was any such breach in the first place.

A successful claim for constructive dismissal has two main elements. The Employer must have committed a serious breach of contract AND the Employee must resign reasonably promptly in response to that breach.

Employees in these situations (and they are rare) should make sure he/she either gives no notice (common law principle) or no more than the contractual minimum (permitted by Section 95 (1) (c) Employment Rights Act 1996.)

Ridge v HM Land Registry UKEAT/0485/12

The EAT has upheld a Tribunal decision allowing the defence of “set-off” to a Respondent Employer in the Tribunals in England and Wales. It has been available in Scotland for some time.

There are limitations. Since set-off is a defence in contract, the nature of the claim by the Claimant must also be based in contract. In this case it revolved around contractual pension contributions. It would not be a defence to another claim, such as Unfair Dismissal.

Its value to an Employer will be limited, since the maximum a Claimant can be awarded for a claim in contract is £25,000.00 (which is why many claims in contract by high earners are brought in the ordinary civil courts.)

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