This month the Court of Appeal heard the case of Rodgers v Leeds Laser Cutting Ltd to consider whether a COVID related absence dismissal was automatically unfair for a health and safety reason pursuant to s100 of the Employment Rights Act (E&W).

The ET and the EAT both found that the Respondent’s employer had taken considerable steps to avert the danger in the workplace and that the Claimant’s refusal to return to work on grounds of health and safety was not made out.

The Court of Appeal will hear arguments on whether the ET and the EAT erred in law when assessing the Claimant’s belief of a “serious and imminent danger” in light of the exceptional circumstances surrounding the pandemic. 

For the EAT judgment click HERE
For a recording of the Court of Appeal hearing click the Youtube livestream HERE
 

Re McAteer, Application for Judicial Review [2022] NIKB 12
for the full judgment click HERE

[82] The court concluded that whilst the Applicant had not been “particularly well served by the Solicitors Disciplinary Tribunal process…the preliminary decision as to which element of the complaint would be taken forward was made promptly, although with limited reasoning provided. Thereafter, the onus was on the Applicant to move promptly if he wished to challenge that early determination.” The ongoing delays were found to be “regrettable” but that ongoing litigation outside of the SDT process was a significant contributor to that delay. The court refused the Applicant leave to apply for JR principally on the basis that the SDT’s decision making should have been challenged by way of appeal at the time of the original complaint. It was stated that whilst the Applicant was likely to be “disappointed” that he was now out of time to pursue a complaint dating back to 2017. In doing so, they emphasised that “public law places a premium on the principles of finality and legal certainty, requiring decisions to be challenged promptly.

The Claimant was employed as a buyer within the respondent’s online business. She claimed that a new opportunity, previously offered to her, “disappeared” when she announced that she was pregnant with her second child. When she returned to work following the child’s birth she was asked to take on a full-time role despite only previously having a part-time contract. She became concerned about being able to complete the full-time tasks within her allotted hours and stated that she was told to “prioritise things a bit better.” When the respondent raised concerns that she was not completing her work on time she raised a grievance. It was the claimant’s case that the company’s internal process “failed her” She felt she was left with no alternative but to resign and seek alternative employment. The tribunal found that the Claimant had been unfavourably treated and had subjected her to indirect sex discrimination.

Click here for remedy judgment 
Click here for liability judgment

The Tribunal found that the Respondent failed to make the following reasonable adjustments:
– applying a redundancy policy with objective selection criteria and consideration of actual duties, skill set, experience and performance, so that the alignment decision in respect of the claimant was consistent and objective;
– adequately consulting with the claimant;
– offering the claimant suitable alternative employment by modifying his role or offering a new role.

The tribunal stated that had the respondent made adjustments, the claimant would not have been dismissed (para 20)
 
The most significant impact of the Claimant’s dismissal was the loss of medical insurance provided to him as an employee of the respondent. The Tribunal found that he could not obtain similar medical insurance cover given that his existing condition made it prohibitively expensive. The lowest quotation received was £105.923.60 per annum. (Para 24)

The loss of the private healthcare caused him to wait longer for diagnosis and treatment and interfered with his continuity of care which led to increased pain and anxiety for the Claimant (Para 26)

He was devastated by the loss of his employment and said the respondent had a “throw away” attitude. He objected to having only had one brief consultation during the redundancy despite raising issues of disability.

Final settlement consisted of:
 
Earnings, pension and stocks £617,699.56
Medical insurance element £7,720.38
Insurance element £619,555.92
Injury to feelings £38,678.36
Loss of statutory rights £500.00
Total award before tax £1,284,154.22

Morgan v Buckinghamshire Council [2022] EAT 160
For the full judgment click HERE
 

The Claimant was employed as a supervising social worker. She was disabled by various conditions including autism and dyslexia. She was dismissed on grounds of conduct for giving unauthorised gifts to a child in her care and for the preparation of a case note with inappropriate content. It was the Claimant’s case that her disability influenced her conduct. The first instance tribunal and the EAT found that the dismissal did not give rise to a claim of disability discrimination pursuant to s15 of the Equality Act as the sanction was capable of justification. The tribunal found that the Respondent had acted reasonably in concluding that the Claimant had breached professional boundaries, and knew that she needed permission for gifts to be given. The tribunal also found it was reasonable for the Respondent to conclude that the Claimant could repeat the conduct again if she was not dismissed.