Gordons Legal Employment Update – 7 June

Disability Discrimination

In the case of City of York v Gossett, the Claimant, Mr Grosset (“G”), was a teacher and Head of English at a school operated by the City of York Council (“YCC”).  G suffers from cystic fibrosis and YCC was aware of this.

Following a change of Head teacher, G’s workload increased substantially and G struggled to cope and suffered from stress.

On the final day of the students’ exams, G taught a group of pupils aged 14-15 (known as a ‘nurture’ class) and showed them an 18 rated film (Halloween).

Around the same time, G’s health deteriorated and he took time off work and the details of the film shown came  to the attention of the Head teacher. G was suspended, subject to a disciplinary process and was later dismissed for gross misconduct. He brought claims for unfair dismissal and disability discrimination.

Although the dismissal itself was found to have been fair, it was held that YCC had discriminated against G when it dismissed him for misconduct even though YCC was not aware that the employee’s actions were due to his disability.

The law does not require the employer to know that there is a link between any misconduct and the individual’s disability and so it was found that the school had breached its duty to make reasonable adjustments in respect of G’s workload, and that G had made an error of judgement in showing the film due to the stress he was under.

The conclusion was that the stress G was suffering from was, in a large part, due to his disability, and had he not been suffering from increased stress, he would not have made the error (of showing the film).

Comment

This case widens the protection for individuals with disabilities and illustrates that employers can be held liable for discrimination arising from disability even when they think that there is no link between an employee’s actions and their disability.

In this case, G was holding down meaningful employment whilst managing a severely debilitating condition.  Employers who are considering disciplining a disabled employee should always consider obtaining medical evidence on whether the employee’s actions could in any way be a consequence of their disability.  If an employer has done what it reasonably can do to establish if there is a link between the behaviour and the disability, then it will reduce the risk of successful claims. If there is still doubt then giving an employee the benefit of the doubt may still be the safest course of action.

Summary Dismissal Fair, Despite No Single Act Of Gross Misconduct 

In the recent case of Mbubaegbu v Homerton University Hospital NHS Foundation Trust (the “Trust”), Mr Mbubaegbu (“M”) was employed as a consultant orthopaedic surgeon for some 15 years until he was dismissed for gross misconduct.  Prior to his dismissal, Mr Mbubaegbu had an unblemished disciplinary record and no previous warnings.

In April 2013, the Trust introduced new rules in the department where M worked and he and his colleagues were informed that their compliance with the new rules and responsibilities would be monitored.  External HR consultants were responsible for the monitoring and carried out an investigation which concluded that M and four other consultants had not been compliant.  The HR consultants investigated 22 separate charges and informed M that disciplinary action would be taken against him in respect of 17 allegations.

M was summarily dismissed for gross misconduct and his appeal against dismissal was not upheld. He brought claims for unfair dismissal, wrongful dismissal and race discrimination, all of which were dismissed by the tribunal. He appealed the employment tribunal’s decision to the EAT, which dismissed the appeal in relation to unfair dismissal but allowed the appeal in relation to wrongful dismissal.

Comment

This doctor had been grossly careless and negligent and had demonstrated a pattern of repeated unsafe behaviour leading to increased patient risks. There was a real concern that a final written warning would not be sufficient in ensuring his compliance with the Trust’s procedures in future because his actions showed that he was unlikely to change his approach/practices.

This case illustrates there need not be a single act amounting to gross misconduct before summary dismissal can be justifiable.  A series of acts demonstrating a pattern of conduct can be sufficiently serious to undermine the relationship of trust and confidence between the employer and the employee even if none of those single acts amounted to gross misconduct.

Uber Drivers to Receive Additional Employment and Insurance Related Protections

The Chief Executive of Uber has announced that Uber will provide their 150,000 couriers with sick pay, paternal leave and a wave of other new protections.  These new measures are intended to make drivers ‘partners’ in a business model which in the past has “focused too much on growth and not enough on the people who made the growth possible”.

Despite Uber stating that drivers would not have to pay for these benefits, there has been much criticism from unions who have stated that these benefits are just a “revamp” of Uber’s illness and injury cover which was previously offered to drivers in April 2017.  Unions have also said that Uber drivers have statutory employment rights and these offerings are merely “cosmetic benefits which can be taken away at any time”.

This announcement comes amidst Uber’s challenge of an employment tribunal decision that ruled its drivers were workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998 and not self-employed.  Uber’s appeal was subsequently dismissed by the Employment Appeals Tribunal and will be heard later this year by the Court of Appeal.