Gordons Legal Employment Update – 13 October 2017

Relations in the Workplace – Employer’s Obligations

In the recent case of Brighton and Sussex University Hospitals NHS Trust v Akinwunmi, the Employment Appeal Tribunal (EAT) considered the extent to which employers’ obligations to their employees extend to improving relations in the workplace.

Mr Akinwunmi was a consultant neurosurgeon for Brighton and Sussex University Hospitals NHS Trust.  Over a number of years, his relationship with his colleagues had broken down, during which time he and his colleagues had made a number of complaints against each other.  A previous Employment Tribunal claim brought by Mr Akinwunmi for discrimination on the grounds of race was settled in September 2012, resulting in an agreement that Mr Akinwunmi would take a three month sabbatical from work, to commence in November 2012.  During the sabbatical, relations deteriorated further amidst various allegations of misconduct and incompetence.  When Mr Akinwunmi failed to return to work after three months, he was treated as absent without leave and was dismissed for unauthorised absence some months later.  The first-tier Tribunal found that the dismissal was unfair, the Trust failing to take into account the reasons for Mr Akinwunmi’s absence.  The Trust appealed this decision.

The EAT dismissed the appeal, finding that the first-tier Tribunal logically concluded Mr Akinwunmi had not contributed to his own dismissal having found that his decision not to return to work was reasonable in all of the circumstances.  The Trust had failed to take the necessary steps to improve relations in the workplace or to make proper arrangements for Mr Akinwunmi’s return to work.  As such the first-tier Tribunal’s decision was within the band of reasonable responses and should not be overturned.

Comment:      In accepting that Mr Akinwunmi’s decision not to return to work was reasonable, the EAT has confirmed that employers have a duty to tackle poor relations in the workplace, particularly where the safety of others is potentially at risk.  Employers should ensure as a matter of good practice that reasonable recommendations to improve the working environment are implemented and that disharmony in the workforce is actively addressed.

Non-Compete Clauses – When are they Enforceable?

The enforceability of non-compete clauses in employment contracts, whereby an employer seeks to restrict a departing employee’s ability to work for a competitor, has been considered by the Court of Appeal in the recent case of Tillman v Egon Zehnder Limited.

The question before the Court of Appeal in this case was whether a clause in Ms Tillman’s employment contract went further than was necessary to protect her employer’s legitimate business interest, the clause in question requiring Ms Tillman within six months of the termination of her contract not to:

“directly or indirectly engage or be concerned or interested in any business carried on in competition with any of the businesses of the Company or any Group Company which were carried on at the Termination Date or during [the period of six months from the Termination date].”

The Court held that to prohibit Ms Tillman from being “interested in” a business would prohibit her from holding shares in that business; as such the clause was impermissibly wide and the whole clause void.  In concluding that the offending part of the clause was not capable of being severed, the Court noted that it is “no business of the courts to create a valid covenant in order to replace an impermissibly wide covenant which an employer has sought to impose on the employee.”

Comment:      The Judgment in Tillman will serve as a warning to employers that, in seeking to place restrictions on departing employees, they must take care not to make any aspect of the restriction too onerous lest the entire clause is deemed unenforceable.  Employers should consider setting out each of the employee’s obligations in individual clauses so that in the event that one restriction is found to be unenforceable, the others will be preserved.  Employment contracts should be revisited from time to time to ensure the restrictive covenants are up to date, especially when an employee changes role or is promoted.

How Specific must Unions be in Providing Dates of Planned Strikes?

Since March 2017, trade unions have been required, when conducting a ballot on industrial action, to indicate on the voting paper when the proposed strike is expected to take place.  In the recent High Court case of Thomas Cook Airlines Ltd v British Airline Pilots Association it fell to the Court to consider how specific the time identified by the union must be in order for this requirement to be satisfied.

The circumstances of the case are that following a dispute over pay and conditions, the British Airline Pilots Association balloted employees of Thomas Cook.  The voting paper indicated that the proposed strike would take place “on dates to be announced over the period from 8th September 2017 to 18th February 2018.”  The members voted in favour of the strike and Thomas Cook sought an injunction to prevent the strike going ahead on the basis that the five month period specified by the union was too wide.

In refusing the injunction, the Court accepted the union’s argument that the timing of a strike will depend on variables outside of its control as well as on factors such as how negotiations between the parties progress.  As such the Court concluded that by specifying a particular five month period, the union had satisfied its obligation to indicate when the strike was expected to take place.

Comment:      Employers should note that although this was a decision of the High Court and not an appellate court, it is likely to be highly persuasive; courts will in future be slow to declare a ballot paper invalid for failing to provide specific enough information regarding the timing of a strike given the uncertainties inherent in trade disputes.

Are Written Exams for Disabled People Discriminatory?

In the recent case of Schofield v Manchester Airport Group Plc the Employment Tribunal considered the extent to which adjustments must be made by employers to accommodate the needs of disabled employees.

As part of the induction process for his new role as Security Officer at Manchester Airport, Mr Schofield had to take a written exam.  Passing the exam was an essential requirement of the role.  Mr Schofield had four learning difficulties: dyslexia, dyspraxia, dysgraphia and dyscalculia, the cumulative effect of which was that he was disabled under the Equality Act 2010.  Despite some adjustments being made to accommodate Mr Schofield’s disability, he failed the exam and was consequently dismissed from his job.  Mr Schofield brought a claim against Manchester Airport Group plc for failing to make reasonable adjustments and for discriminating against him on the basis of his disability in respect of his dismissal.

The Tribunal considered the adjustments the employer made – offering to read out the exam questions to Mr Schofield and providing a private room for the exam – were sufficient in the circumstances.  The Tribunal did not consider the employer had a duty to write down Mr Schofield’s answers as Mr Schofield contended.

In concluding that the employer had not discriminated against Mr Schofield in the context of his dismissal, the Tribunal determined that the decision to dismiss was proportionate because:

• it is in the public interest to ensure Aviation Security Officers are properly trained and tested;
• there were no suitable alternative roles for the employer to offer Mr Schofield; and
• Mr Schofield’s disability was not the only reason for his failure to pass the test.

Comment:      The Tribunal’s Judgment confirms that although large organisations should expect to devote considerable resources to meet their obligation to make reasonable adjustments for disabled employees, what constitutes “reasonable” is limited and will depend on the facts of each case.   The Judgment should also serve to remind employers that when defending claims of discrimination arising from disability, a successful defence will often depend on whether there are sufficiently compelling and legitimate reasons for the employer’s actions.

Can Disciplinary Investigations Ever Be Too Thorough?

In the recent case of NHS 24 v Pillar it fell to the Employment Appeal Tribunal (EAT) to consider the unusual question of whether an investigation which formed part of a disciplinary process against an employee could be found to be unreasonable for the reason that it included too much information.

Mrs Pillar had worked as a Nurse Practitioner for NHS 24 since 2002.  Her role involved taking telephone calls from members of the public and determining the most appropriate clinical outcome on the basis of the symptoms they described.  The options open to Mrs Pillar ranged from offering advice over the telephone through to making an emergency phone call for an ambulance.   In December 2013 Mrs Pillar was dismissed for gross misconduct following a Patient Safety Incident (PSI) in which she failed to ask the appropriate questions of a patient who had suffered a heart attack, as a result referring them to an out of hours GP instead of calling 999.  Mrs Pillar claimed her dismissal was unfair on the basis that a report, which was compiled for the disciplinary meeting and which led to her dismissal, erroneously included details of two previous PSIs, neither of which had led to disciplinary proceedings against her.

An employment tribunal found that NHS 24’s decision to dismiss Mrs Pillar was within the band of reasonable responses given the evidence before the investigating officer, but upheld Mrs Pillar’s claim that the dismissal was unfair by virtue of the fact that by considering the previous PSIs which had not led to disciplinary action, NHS 24 had failed to conduct a “reasonable investigation”.  In effect, the tribunal found the investigation had included too much information.  NHS 24 appealed to the EAT.

Given that Mrs Pillar did not challenge the tribunal’s finding that the dismissal was within the band of reasonable responses, the EAT concluded that there was no rational reason to exclude details of the previous PSIs from the investigation.  On this basis, the EAT held that it was perverse for the tribunal to find the dismissal unfair, and substituted its own finding that the dismissal was fair.

Comment:      This Judgment will reassure employers that it is unlikely that investigations forming part of the disciplinary process will be found to be unreasonable for being too thorough.  However, it is worth noting that overzealous investigations could still render dismissals unfair.