Quarterly employment case law update

In this article we look back at some of the key cases from the past three months and the lessons which we can learn from them.

Unfair dismissal

Re-engagement orders

In Kelly v PGA European Tour, the Employment Appeal Tribunal (EAT) upheld an employer’s appeal that it is impractical to re-engage an employee, following an unfair dismissal, where the trust and confidence has broken down in relation to that employee’s capability and integrity. Mr Kelly was employed by PGA as a group marketing director until he was dismissed in 2015 following concerns in relation to his performance and reluctance to get on board with the newly appointed chief executive’s ideas. Mr Kelly claimed unfair dismissal and PGA accepted that a fair procedure had not been followed.

The Employment Tribunal (ET) held that Mr Kelly should be re-engaged as a commercial director. PGA argued that this would not be practicable because speaking Mandarin was an essential requirement and he could not speak it. The ET disagreed and said that Mr Kelly’s willingness to learn Mandarin and proficiency at languages was enough to prove practicability. The ET also commented that previous incidents of Mr Kelly secretly recording meetings was not significant enough to make re-engagement impracticable. Later, PGA successfully appealed this outcome with the EAT. The EAT ruled that an employer can refuse to re-engage an employee where it has a genuine and rational belief that trust and confidence has been lost as result of the employee’s “conduct or other factual state of affairs”.

This ruling should be welcomed by employers as it broadens the scope of reasons that ET’s will have to consider when determining the legitimacy of re-engagement orders.

Reputation damage

In K v L, the EAT considered whether it was fair for an employer to dismiss an employee on the basis that continuing to employ that individual could damage the employer’s reputation. K was a teacher who was suspended while the police investigated an allegation of possession of indecent images of children against him. Illegal images were found on K’s laptop, but K was not prosecuted due to the lack of sufficient evidence that he had downloaded the images, other members of his household having access to his computer. However, following a disciplinary hearing, K was dismissed on the basis that public knowledge of this investigation could cause reputational damage to the school. The school failed to mention the issue of reputation at the disciplinary hearing and K believed that he was dismissed only because of his alleged conduct. K’s claim for unfair dismissal was rejected by the ET but the EAT took a different approach, holding that the dismissal was unfair because K did not have the chance to address the issue of reputational damage at the disciplinary hearing. The EAT also held it was unfair to dismiss K on the basis that he might have committed an offence and his name was mentioned in an investigatory report. Employers can draw a cautionary lesson from this in that weight should be given to all the facts and impulsive decisions should not be made when dismissing employees.

Trust and confidence dismissal

In Gallacher v Abellio Scotrail Limited, Mrs Gallacher was dismissed following a complete deterioration of the working relationship with her manager on the basis that of trust and confidence had been lost. The interesting point here is that the EAT held that following a proper procedure, in circumstances such as this, was futile and did not make the dismissal unfair. The EAT judge went as far as saying that following the ordinary procedure would have “worsened the situation” as neither party had any intention of repairing the relationship. Employers must note that this case is rare and an exception to the general procedural fairness rule. It would be risky for employers to decide not to follow fair procedures on this basis.

Discrimination

Definition of gender

In Taylor v Jaguar Land Rover Ltd, the ET ruled that the definition of gender reassignment in section 7 Equality Act 2010 covers employees who identify as gender fluid/non-binary. Ms Taylor successfully claimed direct discrimination, harassment and victimisation on the grounds of gender reassignment after she alleged, she had been subjected to bullying, lack of managerial support and difficulties with using toilet facilities at work. The ET held that “gender is a spectrum” and that there was no doubt that Ms Taylor fell within the definition of section 7 Equality Act 2010. The case is important as it highlights to employers that the definition of gender reassignment is inclusive of complex gender identities.

Definition of Disability

In Sullivan v Bury Street Capital Ltd, the EAT held that an employee’s paranoid delusions could not be considered a disability under the Equality Act 2010 because they did not have a long-term effect. Mr Sullivan experienced paranoid delusions that a Russian gang were stalking him which led to issues with his time keeping and record-keeping at work. The ET concluded that although the delusions had had a substantial adverse effect on his ability to carry out normal day to day activities. However, as Mr Sullivan only experienced these delusions twice over a four-year period, the ET did not accept that the delusions had a long-term effect because they were unlikely to recur. The EAT dismissed Mr Sullivan’s appeal and upheld the ET decision. This case highlights to employers that when considering whether an employee will be classed as disabled under the Equality Act, it is important to consider whether they suffer from a condition which is likely to last for 12 months or is likely to recur.