Case Reports: D

The Employment Appeal Tribunal (EAT) has ruled that an employee was not unfairly dismissed despite content being removed from an investigation report into his conduct that expressed views in his favour.

The 10% uplift in damages for personal injury, as established by the Court of Appeal in Simmons v Castle [2012] EWCA Civ 1039, CA, applies to compensation for injury to feelings and psychiatric injury awarded by tribunals for discrimination.

Where a provision relating to absence management which was set out in a staff handbook had been incorporated into contracts of employment, it followed that a new policy of attendance management, which the employer had purported to introduce, was not effective to vary the terms of the employment contracts and so was not contractually binding on employees.

If the respondent applies a criterion which itself distinguishes between people on the basis of a protected characteristic, this is itself discriminatory. Thus, taking into account the additional cost of granting voluntary severance to employees over 50 years of age amounted to prima facie discrimination.

For the purposes of the duty to make reasonable adjustments in determining whether an employer had actual or constructive knowledge of an employee's disability and the fact that the employee was likely to be placed at such a substantial disadvantage by a provision, criterion or practice, the employment tribunal will need to look for evidence that the employer has taken its own decision, rather than proceeding purely on the basis that the employer is entitled to rely on the opinion of its medical advisors.

The local authority is the legal employer of staff employed at community schools. These schools are maintained by the local authority (LA) but, by virtue of the School Staffing (England) Regulations 2009, the governing body at each school exercises the key employment powers from appointment to dismissal. Once the governing body has selected a successful candidate for a teacher vacancy at the school, they inform the LA to action the formal appointment. Conversely, if the governors decide that a teacher should no longer be employed at the school, the LA is responsible for the formalities of the dismissal. The school’s disciplinary procedure sets out the powers of the governing body and Head in relation to disciplinary action including suspension and dismissal.

Employees who are trade union officials are entitled to take reasonable time off during working hours for the purpose of carrying out their duties. They are protected against being subject to a detriment where that is for the sole or main purpose of preventing or deterring them from, or penalising them for, doing so.

In this case, the judge considered whether a teacher employed at a community school could be disciplined by the LA rather than her school.

The dangers of ill-judged words on social media sites are well documented. The law protects individuals against unfair or malicious attack in published form. There is no clear definition of defamation, but it means statements that:

• are wrong

• do not amount to fair comment

• damage the other person's reputation; or

• lower their standing in the eyes of ordinary people.

The issue in this case was whether the contents of blogs published by the defendant amounted to libel against the university that employed the individuals who were the subject of the blogs.

Whistleblowing protection is available to employees under the Public Interest Disclosure Act 1998. Employees are protected if they make a disclosure about a wrongdoing at work to the correct person and in the correct way. There is a list of "qualifying disclosures" in the Act. In whistleblowing proceedings, the employee needs to show they suffered a detriment at work on the grounds that they made a qualifying disclosure. A detriment includes dismissal, other disciplinary action or changes to terms and conditions such as demotion or withdrawal of allowances.

In this case, a teacher made a number of qualifying disclosures and the employment tribunal found she had been subjected to detriment. At a remedies hearing, the local authority (LA) proposed that instead of making a compensation award for future loss of earnings, it should make a recommendation that the claimant be restored to the leadership role of which she had been deprived. If that recommendation was not complied with, she could apply to restore the future loss issue. That recommendation was made but not complied with. In the meantime, the claimant was selected for redundancy and she argued that her scoring in the selection process was directly affected by the failure to restore her leadership role and implement other recommendations made by the tribunal.

Provided a final warning was not manifestly inappropriate and was issued in good faith, it is legitimate for an employer to rely on it when subsequently deciding whether to dismiss.

The Teachers' Pension Scheme (TPS) is governed by regulations and managed by the Department for Education (DfE). Teachers in the TPS who are affected by serious incapacity are entitled to apply for an ill-health retirement benefits pension. They will meet the criteria for ill-health retirement and be awarded an ill-health pension if they have demonstrated by medical evidence that their incapacity is permanent, which means likely to last until normal retirement age. There are two categories of incapacity. If the teacher is permanently unable to teach but can do other work the ill-health pension is based on accrued service only; if they are assessed as totally unable to teach or to take up other employment, they are eligible for enhanced (total incapacity) benefits.

The application form has to be accompanied by medical information. It is passed to the employer to see that all the appropriate medical evidence — for example, from doctors, consultants, or the employee’s own occupational health or medical advisor — has been obtained before it is sent off. If the application does not contain evidence to show permanent incapacity it will be rejected. Although the employer has to support the application, the decision about whether to grant ill-health retirement is made by a medical advisor appointed by the DfE. If total incapacity retirement is granted, it includes enhanced pension benefits provided the application was made within six months of the termination of employment.

In this case, the issue was whether it is the DfE's responsibility to request further medical information if there is insufficient evidence of permanent incapacity and to delay a decision until they have that further evidence.