November’s employment case law round up

Threats at work and impartiality

In Ward v Dimensions (UK) Ltd:

• The claimant was dismissed because he was found to have made a threat to a colleague to the effect that he had a gun with her name on it.
• That allegation was, in the employer’s internal process, denied by the claimant, but supported by the evidence of others who witnessed the threat.
• The manager who heard the claimant’s appeal against dismissal had also, at an earlier stage:
  • suspended the claimant;
  • authorised the matter to be progressed by way of disciplinary charges; and
  • advised the threatened employee to consider making a report to the police.
• The claimant alleged that the manager was not impartial and that this rendered the dismissal unfair.
• The claimant also alleged that the company had formed the view that the claimant owned, or had owned, a gun, when there was no evidence to support this.
• A tribunal found the dismissal to be fair and the claimant appealed.

The employment appeal tribunal (EAT) dismissed the appeal and held that:

• The tribunal had carefully considered the issues when deciding that the appeal manager was sufficiently independent; and
• It was not surprising that, in the internal process, the claimant had been asked questions about whether he owned a gun because an affirmative answer might have been thought to lend support to the allegation that he had made a threat. However, it was not necessary to make a finding that he did own or had owned a gun in order to make out the charge that he had threatened the employee.

The EAT ruled that the tribunal properly found it was fair to dismiss the employee for making such a threat, and that the dismissal was otherwise in all the circumstances of the case a fair one.

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Take Me There

Disability discrimination – misconduct influenced by disability

In Morgan v Buckinghamshire Council:

• The claimant, a supervising social worker was dismissed for her conduct in giving gifts to a child for whom she was responsible without the authority of her manager, and because of the inappropriate content of a case note that she had written.
• The claimant was disabled by reference to autism spectrum disorder, dyslexia and other matters.
• The tribunal found that the claimant was not unfairly dismissed and that the dismissal did not amount to discrimination arising from disability because the justification defence had been made out by the employer.

The EAT dismissed the claimant’s appeal:

• The tribunal properly concluded that the respondent reasonably formed the view that she had breached professional boundaries, and that it could not be confident that she would not repeat that conduct if she was not dismissed. The respondent reasonably concluded that the claimant knew that she needed prior authority for the proposed gifts, and that a breach was a potentially serious matter for which she could be dismissed.
• The tribunal also properly found that dismissal was not disproportionate for the purposes of the discrimination arising from disability justification defence.
• The claimant’s case was that the conduct was influenced by her autism. The dismissing officer had not accepted that. The appeal officer had invited the claimant to agree to an OH referral which she declined to do. The tribunal had not mistakenly inferred that the appeal officer had regarded the claimant declining to consent to the OH referral as additional conduct, nor had the tribunal wrongly penalised the claimant for her autism.
• In the course of her decision the appeal officer had stated that it was a matter of serious concern that the claimant had chosen to withhold her autism through “masking” throughout much of her employment, potentially putting vulnerable children at risk. The tribunal found that this amounted to harassment by effect. The respondent’s cross-appeal against that decision failed. The EAT found that the tribunal’s reasons had conveyed why it considered that the claimant’s view that this statement violated her dignity was, in all the circumstances, reasonably held.

Fault of representatives

In Phipps v Priory Education Services:

• The claimant was dismissed and instructed a firm of solicitors to represent her. Once instructed, the employment tribunal sent all correspondence to the solicitor only.
• The solicitor failed to comply with various court orders and the claim was struck out for this reason and because it had not been actively pursued.
• Costs had been incurred by the respondent and a wasted costs order was made against the solicitor.
• The claimant applied for reconsideration which was rejected.
• The claimant appealed on the basis that the tribunal made an error of law by considering itself bound by a rigid rule that the fault of the legal representative cannot excuse a party from non-compliance with rules or orders.

The employment appeal tribunal dismissed the appeal and held that the claimant had a remedy against her representative. The interests of justice also included the interests of the other party, who had prepared for two full hearings neither of which had been effective, and to the public interest in finality of litigation.

If you have any questions about the topics above, or if you have other matters to discuss, please contact one of our expert Employment Solicitors.