XpertHR provides summaries of recent employment tribunal
rulings.
Being female not a genuine occupational qualification for healthcare role
Employer guilty of sham redundancy and disability discrimination
Unreasonable final written warning led to unfair dismissal
Withdrawal of job offer was disability discrimination
Redundancy insufficient reason to terminate apprenticeship
Sick employee entitled to carry over
holiday
Whistleblowing employee suffered
detriments
Unfair dismissal was due to TUPE
transfer
Sacked seventeen-year-old wins age
discrimination claim
"Stale and complacent" disc
jockey suffered age discrimination
Failures toward
assaulted employee amounted to constructive dismissal
Sex discrimination claim survives illegality of contract
Note: The decisions are not binding on other tribunals and are
intended to provide illustrations for employers of situations that have led to
tribunal claims. They are reported on XpertHR as soon as the transcript
becomes publicly available, which is normally four to six weeks after the
judgment has been made.
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Being female not a genuine occupational qualification for healthcare role
Argent v NHS Luton ET/1502168/08
Date added: 25 February 2010
sex discrimination | defence | genuine occupational qualification
Mr Argent, a medical consultant, sought to apply for the position of consultant in sexual healthcare, but was not allowed to apply because NHS Luton asserted that being female was a genuine occupational qualification for the role. In considering Mr Argent's claim for sex discrimination, the tribunal held that the genuine occupational qualification defence failed, because there was no necessity for the successful applicant to be female. However, Mr Argent's claim in any event failed: the tribunal held that he did not suffer a detriment, given that he would not have been shortlisted for the post had his application been allowed to proceed.
View the full transcript
of the case.
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Employer guilty of sham redundancy and disability discrimination
Wright v Tru Homes Ltd ET/1701224/09
Date added: 24 February 2010
unfair dismissal | disability discrimination | reasonable adjustments
Mr Wright, a designer of timber frames who suffered from a serious brain tumour, was dismissed purportedly for redundancy by his employer. He brought claims of unfair dismissal and disability discrimination. The tribunal found that there was no genuine redundancy situation, and that the employer effectively demoted Mr Wright and reduced his pay for no good reason. The employer also failed to make reasonable adjustments to assist Mr Wright with regard to his medical condition, which included denying his request to work from home while undergoing treatment.
View the full transcript
of the case.
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Unreasonable final written warning led to unfair dismissal
Benton v Intier Automotive Interiors Ltd ET/1307376/2009
Date added: 22 February 2010
unfair dismissal
Mrs Benton, who worked as an assembler for Intier, was dismissed with notice for using her mobile phone at work, having already been given a final written warning for returning late from a break. In determining whether Mrs Benton was unfairly dismissed, the tribunal found it necessary to consider both instances of her misconduct. It held that not only was Mrs Benton's final written warning unreasonable (at the time she had a clean disciplinary record), but that the sanction of dismissal - which took the warning into account - was unreasonable too. In particular, Intier had failed to properly investigate Mrs Benton's allegation that her mobile phone use was the same type of conduct that had been tolerated by Intier from management and colleagues. The tribunal therefore held that Mrs Benton's dismissal was unfair.
View the full transcript
of the case.
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Withdrawal of job offer was disability discrimination
Irvine v Chief Constable of Nottinghamshire Police ET/2602970/08
Date added: 18 February 2010
recruitment | disability discrimination | reasonable adjustments
Ms Irvine, who suffered from bipolar affective disorder, claimed disability discrimination after her job offer, as a temporary learning and development officer, was withdrawn. The reason given to Ms Irvine was that she “was unlikely to be suitable for this role due to health reasons”, despite the fact that she satisfied the application requirements regarding her sickness absence for the previous three years. The tribunal held that Ms Irvine’s condition amounted to a disability, and that her prospective employer had discriminated against her not only directly - by retracting the job offer - but also by failing to make reasonable adjustments to assist her appointment.
View the full transcript
of the case.
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Redundancy insufficient reason to terminate apprenticeship
Keable v Imagedata Group Ltd ET/1806353/09
Date added: 17 February 2010
apprenticeship | redundancy | unfair dismissal
Mr Keable, who was both an apprentice printer and employee at Imagedata, was dismissed for redundancy. At the same time Imagedata also terminated Mr Keable's apprenticeship, on the basis that it was subject to his employment; he subsequently brought claims for breach of contract and unfair dismissal. The tribunal found against Imagedata on both counts, holding that Mr Keable's redundancy - even if it had been a fair dismissal - was not a sufficiently good enough cause to terminate his apprenticeship.
View the full transcript
of the case.
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Sick employee entitled to carry over
holiday
Shah v First West Yorkshire Limited
ET/1809311/09
Date added: 15 February 2010
holiday | sick leave
Mr Shah had booked four weeks' holiday from 22 February to 21 March 2009, but
due to sickness absence - which lasted up to and beyond the end of his
employer's leave year - was unable to take it. The employment tribunal
ruled that the Working Time Regulations 1998 (SI 1998/1833) could be
interpreted so as to give effect to a recent European Court of Justice decision, which held that
holidays can be carried over to a following leave year if an employee is
prevented from taking them. Mr Shah was therefore entitled to carry over
his holiday, even though in practice he had already been paid for it while on
sick leave.
View the full transcript
of the case.
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Whistleblowing employee suffered
detriments
Jaine v Mears Group Plc (Mears Limited)
ET/1812554/08
Date added: 11 February 2010
whistleblowing | constructive dismissal
An employment tribunal upheld Mrs Jaine’s claim that she had suffered
detriments as a result of making a protected disclosure about her
employer. Mrs Jaine, a customer and community manager, made an internal
allegation that key performance figures were being manipulated. The
tribunal held that the Mears Group had subjected Mrs Jaine to a number of
detriments, including cancelling a promotion and - despite assurances to the
contrary - failing to investigate her allegation. The tribunal found,
however, that Mrs Jaine had not been constructively dismissed, on the basis that
her resignation was not in consequence of her employer’s breach.
View the full transcript
of the case.
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Unfair dismissal was due to TUPE transfer
Hilton v Drivemaster Lease Ltd (1) Drivemaster Solutions Ltd
(2) ET/1802178/09, ET/1804226/09
Date added: 10 February 2010
unfair dismissal | TUPE
Mr Hilton, a depot manager, was dismissed by his employer Drivemaster Lease
shortly before its business and assets were transferred to Drivemaster
Solutions. Mr Hilton’s dismissal was purportedly for gross
misconduct. However, the tribunal found, by inference, that the real reason
for Drivemaster Lease’s decision to dismiss was connected with the business
transfer, to which TUPE applied; Drivemaster Lease thought it best if
Drivemaster Solutions had a new manager instead of Mr Hilton. But for the
transfer, Mr Hilton would not have been dismissed. The tribunal accordingly
held that Mr Hilton’s dismissal was automatically unfair, and that the
transferee, Drivemaster Solutions, was liable.
View the full transcript
of the case.
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Sacked seventeen-year-old wins age discrimination claim
Williams v Mistral Telecom Limited t/a Free
Upgrades ET/1806715/09
Date added: 8 February 2010
age discrimination | young workers
Mr Williams - who was 17 years old at the time - worked just three-and-a-half
hours for his new employer before being dismissed because of his age. His
employer told him that its policy was to employ only people aged 18 or above; at
the tribunal the employer argued that this policy was a proportionate means of
achieving three legitimate aims - including protecting the health and safety of
young people - and that its actions were therefore justified. The tribunal
disagreed, finding that Mr Williams had suffered age discrimination, and awarded
him £4,000 for injury to feelings. Mr Williams also succeeded in claims for
unfair deduction of wages and unfair dismissal.
View the full
transcript of the case.
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"Stale and complacent" disc jockey suffered age
discrimination
Williams v Luminar Leisure Limited ET/1806146/09
Date added: 4 February 2010
age discrimination | unfair dismissal
The employment tribunal found that Mr Williams, a 42-year-old disc
jockey, was dismissed - unfairly - for redundancy. Mr Williams also claimed
age discrimination for the manner in which he was prevented from working the
last weekend of his notice period. Mr Williams's employer had told him that
a replacement DJ (who was younger) had been arranged because he had become
"stale and complacent"; moreover, it had given the same reason to two other DJs
who it stopped using when they had reached the age of 40. The tribunal
rejected the employer's claim that its decision to replace Mr Williams was based
on his choice of music, and found that it had discriminated against him on the
ground of age.
View the full
transcript of the case.
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Failures toward assaulted employee amounted to constructive
dismissal
Smith v Braunstone Victoria Working Men's Club & Institute Ltd
ET/1901613/09
Date added: 3 February 2010
constructive dismissal | last straw
Mr Smith, the secretary of the employer for some 15 years, was
subjected to an unprovoked and vicious assault by one of the employer's
patrons. Following the employer's decision to re-admit the patron to its
club, Mr Smith resigned and claimed constructive dismissal. Although the
employment tribunal held that the employer's actions in re-admitting the patron
was in itself a fundamental breach of contract that resulted in Mr Smith's
constructive dismissal, it found that he would also have been successful if he
had relied on the re-admission as the "last straw" in a series of failures
toward him by his employer. These included the employer's failure to show
support to Mr Smith following the attack and failure to respond to his grievance
about the re-admission.
View the full transcript
of the case.
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Sex discrimination claim survives illegality of contract
Clarke v Energy Controls Metering Limited
ET/1307392/09
Date added: 1 February 2010
sex discrimination | pregnancy | unfair dismissal | illegality
of contract
The employment tribunal found that Miss Clarke’s contract of
employment with her employer was illegal, on the basis that both parties had
agreed that any additional hours she worked would be paid in cash so as to avoid
tax. Although the tribunal held that Miss Clarke’s unfair dismissal claim
failed because of this illegality, her sex discrimination claim not only
survived, but succeeded. The tribunal rejected the employer’s assertion
that it dismissed Miss Clarke due to her unreliability, and found that the true
reason was her pregnancy, which she had announced only hours before her
dismissal.
View the full transcript
of the case. |