Case Reports

Section 20 of the Equality Act 2010 outlines that when a provision, criterion or practice by an employer places a disabled employee at a substantial disadvantage in comparison with a non-disabled employee, it must take such steps as are reasonable to avoid this disadvantage. This duty will not be breached unless an employer fails to make an adjustment which is “reasonable”.

When considering what is “reasonable” the Court of Appeal has previously held in the case of Smith v Churchill’s Stairlifts plc [2006] IRLR 41 that the test is objective and should be determined by the tribunal. As long as the particular adjustment selected by the employer is reasonable, it will have discharged its duty.

When looking at whether vision impairment is correctible in order to be excluded from the definition of a disability under the Equality Act 2010, an employment tribunal will examine each case on its facts and can have regard to whether the correction has unacceptable adverse consequences.

When examining a complaint of discrimination arising from a disability under s.15 of the Equality Act 2010, where a claimant alleges their dismissal was discriminatory, the outcome of an appeal hearing needs to be considered as part of the dismissal process. In cases where a mental impairment is disclosed at the appeal hearing, this will create actual or constructive knowledge of the disability in advance of the dismissal decision.

Section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) does not prohibit employers making direct offers to members of recognised trade unions where the sole or main purpose of the employer is to achieve the result that, on this one occasion, their terms of employment will not be determined by collective agreement. A breach of this provision requires the employer’s purpose to be a removal from the scope of collective bargaining on a permanent basis.

A disclosure concerning a colleague’s actions in breach of their employment contract was a qualifying disclosure as the worker had a reasonable belief this showed a relevant type of wrongdoing, namely a failure to comply with a legal obligation as outlined in s.43B(1)(b) of the Employment Rights Act 1996.

A one-off act of discrimination does not restrict an employment tribunal to the lower Vento banding when making an injury to feelings award. The key consideration is the particular effect the discriminatory conduct has on each claimant, with awards made to compensate for this in line with the Vento bands.

Failure to pause the appeal hearing to investigate an employee’s late admission of alcohol dependency did not lead to an unfair dismissal. The appeal chair's full consideration of the admission, and the fact the employee had declined help to address his problem, meant the decision fell within the band of reasonable responses.

Voluntary overtime which is sufficiently regular and settled will amount to “normal remuneration” and should be taken into account when calculating holiday pay.

A dismissal for failing to follow a reasonable management discussion to not enter into religious discussions with patients, unless initiated by the patient, was fair. While employees have freedom of religion and manifesting a religion under Article 9 of the European Convention on Human Rights, a distinction can be drawn between manifestation and inappropriate proselytising of a belief.

Failure to hold an informal meeting before issuing an informal Improvement Notice, as provided for by the employer’s disciplinary policy, was a breach of the implied term of mutual trust and confidence as the employee was not given an opportunity to discuss the misconduct matter in advance of the notice being issued.