Employment law takeaways: our bitesize legal updates for busy HR professionals, provided by Suzanne Horne of Morrison and Foerster.
1. McWilliam & Others v Glasgow City Council – Compromise Agreements
2. Salford NHS Trust v Roldan – Disciplinary Investigation and Hearing
3. Edwards v Chesterfield Royal Hospital NHS Foundation Trust – Damages in Wrongful Dismissal
4. Chief Constable of South Yorkshire Police v Jelic – Disability
5. Lawless v Print Plus – Statutory Dispute Resolution Uplifts
6. British Airways plc v Unite – Trade Union
1. McWilliam & Others v Glasgow City Council – Compromise Agreements
Glasgow City Council settled equal pay claims with over 10,000 employees. Some employees tried to breach their compromise agreements by claiming against the council. The ET held that it could not decide the case as the agreements were valid, and that an employee has to be advised on the "terms and effect" of a compromise agreement, not on whether the settlement proposed was a "good deal". Generic advice given in group presentations, could form part of that advice.
Takeaway: Although only an ET decision, this case is worth noting as it is the first on the requirements for a valid compromise agreement under sex discrimination legislation.
2. Salford NHS Trust v Roldan – Disciplinary Investigation and Hearing
In a case involving a Filipino nurse dismissed for alleged patient abuse, the ET held that inconsistencies in evidence against the nurse should have been explored more thoroughly and more evidence taken. When assessing the reasonableness of an investigation, tribunals should consider the gravity of the consequences of dismissal on the employee. When serious, the investigator must be even-handed in looking for evidence favouring the accused, as well as against. An employer need not decide between conflicting witness evidence but, if the conflict cannot be resolved, should give the alleged wrong-doer the benefit of the doubt.
Takeaway: This case highlights the need to conduct thorough investigations in disciplinary proceedings, especially where the consequences of dismissal are serious, and gives useful guidance to employers on what to do when witness evidence conflicts.
3. Edwards v Chesterfield Royal Hospital NHS Foundation Trust – Damages in Wrongful Dismissal
The Court of Appeal held that a doctor, who suffers damage as a result of findings of misconduct in disciplinary proceedings conducted in breach of a contractual disciplinary procedure, which resulted in his summary dismissal and loss of professional status, may recover damages, not limited to his notice pay and the time it would have taken for a contractually compliant disciplinary procedure to have been carried out.
Takeaway: This case considered two earlier House of Lords decisions, Johnson v Unisys and Eastwood and anor v Magnox Electric plc, which respectively held that an employee could not rely on the implied contractual duty of trust and confidence to claim damages for the manner of dismissal at common law, and that a distinction should be drawn between events leading up to the dismissal, in respect of which a common law breach of contract claim may be brought, and the dismissal itself, for which the remedy is a statutory claim for unfair dismissal. This whole area requires fine distinctions to be drawn.
4. Chief Constable of South Yorkshire Police v Jelic – Disability
PC Jelic suffered from anxiety syndrome so was placed in a role with limited public contact, but was retired on medical grounds when this contact was increased. The ET held that a reasonable adjustment for his disability could have been to swap roles with another PC who had no public contact. The EAT agreed and held that swapping a disabled employee’s role with a non-disabled employee’s role was a reasonable adjustment in the circumstances.
Takeaway: This judgment is likely to be case-specific as the EAT recognised the special nature of service in the police force and accepted that swapping jobs in this way would not be a reasonable adjustment in all cases.
5. Lawless v Print Plus – Statutory Dispute Resolution Uplifts
The original case related to a claim for unfair dismissal where the employer had failed to follow proper disciplinary procedure. The tribunal applied the minimum uplift of 10% on the basis that if a fair procedure had been followed, Lawless would have been dismissed in any event. The EAT increased the uplift holding that tribunals choosing the size of an uplift should consider whether the procedures were ignored altogether or applied to some extent, if failure to comply was deliberate or inadvertent and whether there are any mitigating circumstances for the failure.
Takeaway: Whilst this case related to the statutory disciplinary procedure, now replaced by the ACAS Code of Conduct , it gives a good indication as to how the tribunal may treat the uplift under the new Code.
6. British Airways plc v Unite – Trade Union
The High Court recently granted an injunction to prevent 20 days of strikes by BA employees, deciding that BA had an arguable case that Unite had not taken all reasonable steps to give its members the information required by law regarding the result of the strike ballot in February. The Court of Appeal has since overturned this decision.
Takeaway: This is the first time the Court of Appeal has examined how far a union must go to notify members of a strike ballot result, in order for the strike to be protected by law.
And Finally:
One tweet too far… During the recent talks with BA, Unite leader Derek Simpson tweeted a running commentary of events. Talks broke down, and the strikes went ahead. Hopefully, Simpson will tweet future negotiations with greater respect!
