Employment Newsletter Spring 2015
In This Edition:
- A Message from Seamus Sweeney
- Article: Dismissals involving dishonesty: dealing with the “Robin Hood” employee who suggests that they were subjectively honest
- Article: When can an employer claim to be unaware of an employee’s disability?
- Article: The Future of Employment Tribunals
1. A Message from Seamus Sweeney
The clocks have gone forward, the daffodils are in full bloom and spring is definitely in the air. What better time, then, to feature a case involving Easter eggs: see Richard Ryan’s “eggcellent” article on the case of Gondalia v Tesco Stores Ltd.
Adrian Maitra highlights the case of Donelian v Liberata UK Ltd, reminding us of the potential pitfalls for employers who take action in respect of absent/sick employees without making reasonable attempts to find out if they are disabled.
Finally, only weeks away from a general election, Catherine Souter rounds off with a look at what the future holds for employment tribunals.
Whichever political party (or combination) assumes control of the country in May, all employment lawyers will want to know what, if any changes they plan to make to the current fees system. The decline in the number of cases is too dramatic to be ignored. We long for a return to the days when judges had work to fill their days. After all, we have seen what some get up to when they have time on their hands and access to the internet.
There are differing views as to whether we have an ‘access to justice’ problem on our hands. In September 2014 the Shadow Business Secretary, Chuka Umunna, told the TUC Congress that tribunal fees were “locking people out of the justice they are entitled to”. He went as far as to say that Labour would scrap the current system. It seems that Labour recognises the access to justice argument. But watch this space. A cynic might think that irrespective of who wins the election, the most that will happen is a reduction in the level of fees, whatever might have been said about them pre-election. All the political parties want less, not more, litigation. Honestly, they treat us like kids not proper grown-ups:
I hope everyone enjoys the Newsletter and that you have a nice Easter break.
As always, we welcome any comments or feedback on the e-Newsletter so feel free to email us at email@example.com or tweet us at @parklaneplowden.
Head of the Employment Team
30th March 2015
2. Dismissals involving dishonesty: dealing with the “Robin Hood” employee who suggests that they were subjectively honest
In the recent case of Gondalia v Tesco Stores Ltd  UKEAT/0320/14/JOJ the Employment Appeal Tribunal (EAT) has held that the concept of subjective dishonesty did not mean that an Employment Judge was bound to consider how dishonesty is determined in a criminal context, which is set out in the leading ‘theft’ case of R v Ghosh. Therefore, the approach taken in John Lewis plc v Coyne  IRLR 139 which encouraged the application of the Ghosh test to employment cases is now in doubt and tribunals will, perhaps unsurprisingly, be applying the ‘Burchell test’ (Burchell v BHS  IRLR 379) without embellishment.
So where does the heroic outlaw Robin Hood come into all of this? Well, the facts of the Gondalia case will need to be considered first.
3. When can an employer claim to be unaware of an employee’s disability?
by Adrian Maitra
In the recent case of Donelien v Liberata UK Ltd UK EAT/0297/14, the EAT considered the extent to which an employer should be deemed to have constructive knowledge of an individual’s disability.
Before we consider the facts of Donelien, it is worth revisiting the legal principles in play. Under the Equality Act 2010 (EqA), for an employer to be answerable for a claim of disability discrimination, it must know of the relevant facts that constitute an individual’s disability, within the meaning of s.6. However, the wording of s.15(2) (in the context of discrimination arising from disability) and Schedule 8, Paragraph 20 of the EqA (in the context of the duty to make reasonable adjustments), makes it clear that an employer cannot be liable where it ‘could not reasonably be expected to know' of an individual’s disability, thus extending the concept of 'actual' knowledge and requires the employment tribunal to determine whether the employer’s stated claim of ignorance of an employee's disability is a reasonable one.
This requires an employment tribunal to evaluate the steps taken by the employer to avail itself of the true position and the level (and quality) of its enquiries. The EHRC Employment Code's guidance states, the employer ‘must do all it can reasonably be expected to do to find out if a person has a disability’ (paragraph 5.15), and this will inevitably require the employment tribunal to consider the extent to which the employer was entitled to rely upon any medical (or other) advice received. Notably, the Code also reminds us that when a tribunal is assessing the employer's knowledge, this should extend to any “agent or employee (such as an occupational health adviser or a HR officer) who, in that capacity, of a worker’s or applicant’s or potential applicant’s disability.” (paragraph 5.17). Consequently, the risks for an employer – when seeking to deploy this defence – are potentially high.
The tribunal and the EAT in Donelien considered this question (under the previous legislation).
4. The Future of Employment Tribunals
by Catherine Souter
With 2015 well underway and the general election campaigns in full swing, the future of employment law and employment tribunals are both hot topics of discussion. What is in store for employees, employers and employment lawyers? This article will consider the introduction of employment tribunal fees, the mandatory requirement to go through early conciliation before being able to lodge a claim and alternatives to the ‘traditional’ tribunal model.
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