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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. |