October’s Employment Law Digest – case law update

Termination of employment by mutual consent

In Riley v Direct Line Insurance Group:

• Mr Riley was disabled by reason of autism spectrum disorder, mixed anxiety and moderate depression.
• He was enrolled on Direct Line’s private health insurance scheme provided by UNUM and had taken an upgraded version of the scheme which offered support until retirement age in the event of incapacity.
• From 2014 until October 2017 he was absent from work with anxiety and depression which made him incapable of work.
• Following a report prepared by a rehabilitation specialist, Mr Riley returned to work but ultimately the return to work was unsuccessful and the claimant contacted his managers to say he could not come into work on account of his mental health.
• His GP assessed him as unfit to work and in August 2018 Direct Line consulted UNUM about Mr Riley’s position and they said that the medical reports indicated that he was unable to perform “his insured role”.
• At a meeting Mr Riley was told about the UNUM scheme and that this would cover his salary if he was unable to return to work due to his health.
• After a period of discussing this and Mr Riley making his own enquiries with UNUM, both parties agreed at a meeting that his employment would be brought to an end.
• A letter was then sent to Mr Riley which stated that he had been dismissed on grounds of capability due to ill health. The letter reminded him of his right of appeal.
• Mr Riley brought an employment tribunal claim for unfair dismissal and disability discrimination. Direct Line responded by saying his employment had terminated by mutual agreement so that there had not been a dismissal.
• The Employment Tribunal (ET) found that the termination was not a dismissal as it was consensual. They found there had been two failures to make reasonable adjustments in connection with the attempted return to work, but the claims were out of time and the ET declined to extend time.

On appeal, the Employment Appeal Tribunal found that:

• The ET had been entitled to find that there was a consensual termination of Mr Riley’s employment notwithstanding the terms of a subsequent letter from the employers stating that he was dismissed.
• The ET had properly decided not to extend time for the reasonable adjustments claims in view of Mr Riley’s subsequent decision to agree to the termination of his employment rather than seeking to return to work.

Termination of the contract of employment by the freely given mutual consent of both the employer and the employee is not a dismissal and in this case, the ET had been satisfied that Mr Riley was not tricked or coerced in any way and that he participated in the discussions, was given time and fully understood what he was doing.

There was a comprehensive paper trail with emails and minutes of meetings clearly recording the view of Mr Riley that he understood what was being discussed and was in agreement with what was being proposed.

The EAT was satisfied there was ample evidence for the conclusion the ET had reached.

Unfair dismissal and the range of reasonable responses

In Greater Glasgow Health Board v Mullen:

• Mr Mullen was employed as a supervisor and in 2021 he was dismissed for gross misconduct after allegations that he had shouted at and threatened another employee were upheld.
• Mr Mullen brought a claim for unfair dismissal which was upheld by the Employment Tribunal (ET) who found that “there were procedural defects in the process leading to the claimant’s dismissal… I considered that the failure to inform the claimant of the allegations against him until he was told about the formal investigation on 29 March 2021, the lack of impartiality in the conduct process due to Mr McIvor being a member of the conduct panel and the lack of certainty surrounding the real reason for dismissal were material procedural deficiencies that fell out-with the band of reasonable responses which a reasonable employer might have adopted.”

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The Health Board appealed and the Employment Appeal Tribunal held that:

• The ET had found that the employer’s reason for dismissing the employee was a belief by it in the existence of misconduct consisting of aggressive and threatening behaviour by him to one of his line reports. The ET further also concluded that the employer’s belief in the existence of that misconduct was genuinely held and reached after reasonable investigation.
• Having made those findings, it was not then open to the ET to base its conclusion about the fairness of the dismissal on a factual hypothesis that the “real reason” for the dismissal was (or may have been) something different to the established reason. On the findings of fact made by the ET, the only conclusion to which the ET could have properly come was that dismissal was within the range of reasonable responses open to the employer and was fair.
• The ET judgment was set aside. The EAT substituted a judgment that the dismissal of Mr Mullen was fair and the claim of unfair dismissal was dismissed.

Reasonable adjustments for job applicants

AECOM Ltd v Mallon:

• In 2018, Mr Mallon applied for a job vacancy with the respondent for a consultant role in its London research and development team.
• The claimant had previously been employed in 2017 in the respondent’s Birmingham office and dismissed during an extended probationary period, due to unsatisfactory performance. The claimant brought a disability discrimination claim, which was settled without admission of liability. In settling that claim, the claimant sought a specific assurance that there would be no restriction on him applying for other roles in future – an assurance which was given by the respondent.
• The standard process for applying for the 2018 role was by completing a relatively short online application form. To access the form, candidates had to create a personal profile, which required them to input their email address username and provide a password consisting of eight digits and including a special character.
• Mr Mallon, who has dyspraxia, emailed the respondent’s HR department, attaching his CV, which included the information that he had dyspraxia and information about how dyspraxia affects people generally. He requested that he be allowed to submit an oral application (“a 5 to 10 min phone call to talk about my experience”) because of his disability.
• The HR manager replied to the claimant explaining that the application process required him to complete the online application form, but that if he had concerns about filling out the form, he should let them know. There was a further exchange between the claimant and the manager but the claimant did not complete the online form.
• Mr Mallon brought a claim for disability discrimination for failure to make reasonable adjustments.

The employment tribunal (ET) upheld Mr Mallon’s claim:

• The ET rejected AECOM’s argument that the claimant was not a genuine applicant for the advertised role.  In reaching that conclusion, the Tribunal took into account that the claimant had performed a similar role for the respondent in the past, which he had enjoyed and that he “was applying to work in a different office … and therefore in a different team from where he had worked previously… It was therefore potentially a fresh start, despite the circumstances in which previous employment with the respondent had ended”.
• The respondent had failed to make reasonable adjustments by allowing him to make an oral application by telephone.
• AECOM ought to have known the claimant was at a substantial disadvantage because if it had wanted further clarification of the reasons why he found it difficult to complete the online application, AECOM should have telephoned him. Given Mr Mallon’s difficulties with written communication, it was not reasonable to expect him to explain these matters in an email.

AECON appealed and the Employment Appeal Tribunal found:

• The ET’s finding of fact that the 2018 role was in a different team with “potentially a fresh start” was contrary to the undisputed evidence and perverse. There was undisputed evidence that the 2018 role was a similar role in the same team, with the hiring manager the same as Mr Mallon’s previous line manager who had dismissed him from his 2017 role. This was a material error by the ET because it was a significant ‘plank’ in what appeared from the ET judgment, to be a relatively finely balanced issue as to whether the claimant was a genuine applicant.
• There were no errors of law in the Tribunal’s conclusion that the respondent ought to have had the requisite knowledge of the claimant’s disadvantage by being required to complete an online form. AECOM ought to have telephoned the claimant to ask for more details of his difficulties when the claimant had failed to respond to the respondent’s email questions.
• It was well within the range of judgments open to the ET to conclude on the evidence that an employer acting reasonably, when faced with an individual with a dyspraxia diagnosis asking for an adjustment to avoid filling in an online form, but failing to respond in writing to a reasonable question, would have picked up the phone to speak to that individual in order to understand their situation.
• The case was remitted to the same ET to reconsider in the light of the EAT’s decision.

If you have any question about Employment Law, or the would like to know more about the cases that are mentioned in this update, please do get in touch with Katie Adams or another of our expert Employment Lawyers.