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The law on constructive dismissal has been under the spotlight recently. Sometimes, employees claim constructive dismissal because of a ‘last straw’ which pushes them over the edge. The courts have recently considered whether a fair disciplinary process – no matter what the outcome – can ever be that ‘last straw’.
Ms Kaur was a nurse at Leeds Teaching Hospitals. She received a final written warning for inappropriate behaviour, which included an altercation with another member of staff. She appealed. When her appeal failed, she resigned claiming constructive dismissal. Her claim was based on the whole process, including the altercation and the disciplinary proceedings. She claimed that the ‘last straw’ was her appeal being rejected.
The Court of Appeal reviewed and clarified the law on ‘last straw’ constructive dismissal cases. Where there is a course of conduct which creates a serious breach of contract, the most recent act can revive earlier affirmed breaches. If Mrs Kaur had accepted earlier breaches by not resigning at that point, a new breach of contract could revive them. Theoretically, she could bring her constructive dismissal claim.
This case overrules the recent MacKenzie v Pets at Home case. It will be comforting for employers to know that Mrs Kaur’s case was struck out for having no reasonable prospects of success. The Court of Appeal confirmed that a fair disciplinary process can never form part of a serious breach of contract. As a result, the appeal decision could not be a ‘last straw’.
If you believe you may have been a victim of constructive dismissal, contact our employment and HR team today by calling 01625 507 506 or submit your enquiry via our contact form by clicking here.
There has been a lot of publicity lately about the employment status of individuals working in the gig economy. Employees and workers have more rights than the genuinely self-employed, so individuals are pushing for this status. Recently, the Supreme Court gave its decision in the high-profile Pimlico Plumbers case. Can someone be a ‘worker’ even though their contract says they are self-employed?
Mr Smith worked for Pimlico Plumbers as an engineer. He had a uniform and a branded van. He had to work at least 40 hours per week and pre-book any holiday through the company procedure. However, he paid his own tax and national insurance, used his own tools and paid his own insurance. He could subcontract work only to other Pimlico operatives. He also took some financial risk in relation to fees.
Mr Smith claimed he was pushed out of the business when he asked to reduce his hours after a heart attack. He brought claims for unfair dismissal as an employee and various other claims as a worker, including a disability discrimination claim.
The Supreme Court confirmed that Mr Smith was not an employee, but he was a worker and ‘in employment’ (as a worker) for the purposes of discrimination law. The company exerted significant control over him, including financial control. He was well integrated into the workforce. His right to subcontract work was too limiting for genuinely self-employed status. He was not running his own business. Mr Smith was a worker and his claims will now be heard by a tribunal.
An employer will not be liable for disability discrimination unless it knew about the employee’s disability (or should have known about it). But what if an employer disciplines someone for misconduct that they don’t know is connected to a disability?
Mr Grosset worked for City of York Council as a teacher. He had cystic fibrosis, which the Council accepted was a disability. After a change in management, his workload increased and he struggled to cope. He suffered stress which made his cystic fibrosis worse. During this time, he showed the 18-rated film ‘Halloween’ to a group of 15 year olds. He later said this was an error of judgement caused by the stress which was linked to his disability. The school disciplined and subsequently dismissed him. At the time of the dismissal, medical evidence did not link the decision to show the film to Mr Grosset’s disability. By the hearing, new medical evidence linked the misconduct to his disability.
The Employment Appeal Tribunal agreed that Mr Grosset had suffered discrimination arising from disability. The employer did not know that the misconduct was linked to disability at the time of dismissal. However, knowledge is not relevant in such claims. The tribunal relied on the evidence put forward at the hearing, not the information the employer had when it dismissed Mr Grosset. The school then tried to justify its actions. They said they had the legitimate aims of safeguarding the children and maintaining disciplinary standards. However, the EAT said they could not show that Mr Grosset’s dismissal was a proportionate way of doing it.
This case highlights the different ‘knowledge’ requirements in discrimination claims. Employers will often be taking a higher risk when disciplining someone with a disability, although often it will be unavoidable.
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