To keep you up to date with relevant developments in employment law, we’ve drafted a summary of some of the most recent cases and what they mean for your employment practices.
This includes examples of the importance of following fair procedures and policies to treat all employees equally and avoid discrimination claims. We also look at why you should hear a grievance that is raised alongside a conduct investigation, and how a disability doesn’t automatically give an employee the right to refuse to follow a lawful instruction from an employer.
1.North West Anglia NHS Foundation Trust v Gregg – Disciplinary Investigations
The Claimant in this case was a doctor who was suspended on full pay after two patients died. A police investigation began, as well as an internal disciplinary investigation by his employer. Dr. Gregg’s registration was suspended, and his licence was temporarily withdrawn. The Trust wished to stop the doctor’s pay. Dr. Gregg took the case to the High Court, before the case was taken to the Court of Appeal over three issues:
1. Whether Dr. Gregg was entitled to be paid during the period he was suspended?
Answer: Yes. The Court of Appeal found that Dr. Gregg should have been paid. The period of suspension was not voluntary and was imposed while allegations of misconduct were being investigated, and therefore should not have affected his pay.
2. Had the Trust breached the implied contractual term of “trust and confidence” by going ahead with internal disciplinary proceedings before the police had completed their own investigation?
Answer: No. The Court of Appeal found that the High Court Judge had not applied the correct test when considering this matter. In this case there was reasonable cause for the Trust to carry out their own disciplinary process in line with the employment contract, without waiting for the police investigations to conclude.
3. Internal investigation/disciplinary proceedings were already taking place for misconduct, so was the Trust entitled to have a separate hearing with Dr. Gregg to consider ending his contract due to him no longer holding the required registration?
Answer: Yes. The Court of Appeal found that the Trust were entitled to terminate his contract on this basis alone, and therefore the High Court was wrong to find that the employer would be acting ‘unfairly’ if they invited Dr Gregg to a hearing to discuss this.
What does this mean?
This case reiterates the importance of suspending employees with pay pending investigations for allegations of misconduct, and that in certain cases it could be appropriate for internal disciplinary processes to continue where police investigations are also taking place.
When is suspension appropriate? Read our article: Employee suspension: Not necessarily a ‘neutral act’
2. Tywyn Primary School v M Aplin – Sexual Orientation Discrimination
The Claimant was a gay headteacher who won his discrimination claim after a primary school dismissed him over having sex with two 17 year old males. He had met the two individuals on a dating app, and believed them to be older than 17. It was determined by local authorities that no criminal offence had been committed and no child protection issue arose. The school nevertheless brought disciplinary proceedings, and dismissed Mr Aplin who appealed the decision. Procedural errors were identified in the disciplinary process, and, following further errors in the appeal process, Mr Aplin resigned claiming constructive dismissal.
By using two hypothetical heterosexual comparators, the Employment Appeals Tribunal (EAT) found that the Claimant had been treated unfairly and had been discriminated against because he was gay.
The ruling included: “In considering whether there had been discrimination of the basis of sexual orientation, the ET constructed two hypothetical heterosexual comparators in Mr Aplin’s position… the failings were so substantial and wide ranging as to allow an inference to be drawn that there was a ‘particular reason’ for them which would not have applied to the hypothetical comparators in Mr Aplin’s position”.
The use of hypothetical comparators in this case highlighted the failings in the disciplinary process, which resulted in the Tribunal’s conclusion that the employee had been unfairly constructively dismissed and discriminated against by the school’s investigating officer because he was gay.
What does this mean?
This case reinforces the importance of following fair procedures correctly, to ensure that all employees are treated consistently and in line with the Equality Act 2010.
Ensure that your HR policies and procedures are followed correctly and fairly in all cases. Ensure that separate people are involved at the investigation and hearing stages of your disciplinary process, and that the investigating officer is clear on his/her role to investigate facts, and not provide opinion. This will protect employees from unfair and unequal treatment, and will help to avoid unfair dismissal, constructive dismissal, and discrimination claims.
Read our article: How to Handle a Disciplinary Issue
3. iForce v Wood– Disability Discrimination
The Claimant worked as a packer working at a fixed workstation. She suffered from a disability called osteoarthritis which was made worse by damp and cold. She was asked to move benches but refused explaining that it would make her disability worse. Once she refused, she was issued with a warning. She believed this was unfavourable treatment because of her disability.
At first, the tribunal agreed, but the Employment Appeal Tribunal disagreed. The ruling questioned whether the warning arose from her disability, and the EAT found that it didn’t. It actually arose from the Claimant mistakenly believing that moving benches would worsen her condition, and her subsequent failure to follow a reasonable instruction.
What does this mean?
In this case, the employer had taken several measures throughout the Claimant’s employment to ensure that her disability was supported at work. From taking further advice from a Health and Safety specialist, the employer was able to evidence that the conditions of the employee’s new work station would not make her disability worse, and protected themselves against a disability discrimination claim.
Where employees are considered disabled under the Equality Act 2010, it is recommended that employers seek medical advice from occupational medical professionals to make informed decisions about any reasonable adjustments that could be made, or around the individual’s employment.
For more information on Disability Discrimination and to avoid discrimination claims in the workplace, read the ACAS guide here.
4. Sutton Oak Church of England School v Whittaker – Sexual Orientation Discrimination and Hypothetical Comparators
The Claimant was a male gay school teacher. He was dismissed due to offering sweets to a male year 5 student after being alone in a classroom during a lunchtime break. 13 years before this incident, the school issued him a written warning and gave him guidelines after a similar incident occurred when he was newly qualified. The Claimant brought claims of unfair dismissal and discrimination on the grounds of sexual orientation and disability, as well as claims of victimisation and harassment.
The Employment Tribunal rejected the claims of disability discrimination, victimisation and harassment, but upheld the claims of unfair dismissal and direct discrimination on the grounds of sexual orientation. The Tribunal had used a hypothetical comparator in the form of “a heterosexual male teacher found alone with a female pupil” to determine this outcome.
The employer appealed this decision, and the Employment Appeal Tribunal found it was not clear whether the comparator used by the Employment Tribunal had also been the subject of a warning in 2002 for inappropriate contact with children. As a result, the EAT judge sent the case back to another Employment Tribunal to consider the complaint of direct discrimination on the grounds of sexual orientation once more.
What does this mean?
This case will need to be reconsidered to determine if the teacher was discriminated against on the grounds of sexual orientation. This reiterates the importance of having clear policies in place to respond to safeguarding issues, where appropriate, for your organisation.
Find out more information on safeguarding in schools here or read our article on how to handle a school safeguarding issue with an employee.
5. Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust – Race Discrimination
The Claimant, Dr. Iwuchukwu, was a consultant surgeon employed by the Trust, specialising in breast reconstructive surgery. The Trust launched an investigation because they had concerns about his conduct and capability. This included an incident where a patient was set on fire during an operation. The Trust placed restrictions on his practice. He was later referred to the GMC (General Medical Council). In the meantime, he raised a grievance with the Chief Executive, but the Trust refused to consider the grievance due to it being “out of the time limit”. Later, he was dismissed due to his capability.
Once this had happened, he brought several claims, including discrimination and victimisation because of his race. He was the only black African consultant. The Employment Tribunal upheld his claim because the Trust failed to investigate the grievances. The Trust appealed. The Employment Appeal Tribunal found that the Trust’s explanation for its behaviour was unrelated to race. The Claimant appealed to the Court of Appeal and the Trust’s explanation was rejected due to the first grievance being raised before the capability process had started.
What does this mean?
In this instance, the failure to follow fair procedures in response to a grievance resulted in a successful claim for race discrimination. Grievances can be raised informally and formally. Ensure that you hear a grievance, and follow your procedures carefully when one is raised.
If you’d like more information on how to respond to a grievance correctly read our article: A member of staff has raised a grievance. What do we do?
If you’re looking for any support or advice on an employee matter, please contact our team of HR Consultants on 01271 859 267 or firstname.lastname@example.org