Cases from the workplace
The second speaker, Paul Scholey, Senior Partner from Morrish Solicitors, highlighted a number of recent cases from the workplace covering dismissal, gross misconduct, trade union detriment and discrimination by disability, religion and belief.
The first case (Talon Engineering v Smith UKEAT/0236/17/BA) highlighted the need for fairness in the employer’s approach. The case involved a derogatory email about a third party but which the tribunal determined did not bring the company into disrepute and that therefore the dismissal was unfair. The decision reinforced previous ones that the interpretation of “the band of reasonable tests’ should not allow decisions to be overturned on the basis of the claim that the tribunal had substituted its own mindset; the case also upheld the right to be accompanied as an important test of fairness.
Paul referred then to the difference between good faith and lack of bad faith. In Saad v Southampton University Hospitals NHS Trust the EAT determined that absence of good faith does not automatically convert into bad faith.
In Guler v Turkey (2018) IRLR 880, ECHR, the Court found that his treatment amounted to a breach of his human rights through his participation in a May Day parade in 2008. Paul referred to the difference in UK law that would not have allowed this as a trade union activity and the judgment raises some interesting questions for future UK cases.
Holiday pay, he believes, has now been settled through Flowers v East of England Ambulance Trust UKEAT/0235/17 and Dudley MBC v Willetts  IRLR 870,  ICR 31. In essence now, that which is part of your regular pay, contractual or voluntary, must be included in holiday pay. The Flowers case, however, is subject to an appeal.
The five tests for religion and belief outlined in the Grainger Case were considered in the case of Gray v Mulberry Co (Design) Ltd UKEAT/0040/18. The applicant sued on the basis that her beliefs were denied because her ownership of her designs were a belief. The EAT disagreed and found that the copywrite of her designs did not constitute a ‘belief”.
In the case of Quintiles Commercial UK Ltd v Barongo UKEAT/0255/17, the EAT found there is no clear rule that said a first offence cannot result in dismissal if the action falls within the range of reasonable responses.
In Morris v Metrolink the issue of dismissal on trade union grounds was addressed – the union rep came into possession of a manager’s work diary and he took it to Human Resources. The Court of Appeal reinstated the tribunal decision of unfair dismissal on the basis that the union rep had not made a copy, had only taken it to HR, did not circulate it and did not campaign outside of his representations to the company, and that it was a works diary not a personal diary. These were reasonable actions of a trade union rep.
On disability discrimination, in the case of City of York Council v Grosset  EWCA Civ 1105, a teacher showed the Halloween horror movie to school children. The teacher was disabled but tribunal said this had no bearing on his offence. EAT has overturned this and found that his judgment arose out of his disability and what arose was an impairment of his judgment. A causative link was shown in a medical report and the fact that the employer did not know about this, there was no way they could, did not matter.
Finally Paul spoke about the case of X v Y Ltd UKEAT/0261/17. Legal professional privilege – where there was a solicitor who was disabled that the employer wanted to sack. When redundancy arose he was selected, the applicant found a copy of an earlier memo which outlined the intention of the employer. It was argued that this was privileged information and couldn’t be used in a court of law. Applicant claimed successfully that the rule of privilege has exceptions i.e. where it is used to hide fraud – and the EAT found that the attempt to avoid obligations in employment law amounted to an iniquity.
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