21 November 2017

Take note of recent Case Law

Whistleblowing

Case: The Court of Appeal has held that the fairness of the dismissal in a whistleblowing case has to be determined by what the employer reasonably believed when dismissing the employee - by reference to what the decision-maker actually knew, not what they ought to have known.

In this case, the appeal was allowed and the dismissal was found to be fair because the person who took the decision to dismiss the employee was not aware of the protected disclosures, even though they had been misled by the employee's line manager, who knew of the disclosures and had engineered a dismissal for poor performance. We understand an appeal against the decision has now been lodged.

Sex Discrimination

Case: The ECJ has held that an employer's failure to carry out a workplace risk assessment to assess the risk posed to a particular breastfeeding worker was less favourable treatment of a woman related to pregnancy or maternity leave and constituted direct sex discrimination.
In this case, the employer had conducted a risk assessment for the role of an A&E nurse but they had not carried out an individual assessment of Ms Ramos's circumstances and the effect of the complex shift system, potential exposure to ionising radiation, healthcare associated infections and stress on her as a breastfeeding worker.

The case is a reminder to employers to assess the risks to particular individuals who are pregnant or breastfeeding and that carrying out a general risk assessment for the role may not be sufficient.

Disciplinary Proceedings

Case: The Employment Appeal Tribunal (EAT) has held that an investigation into an employee's misconduct could not be regarded as unfair because the investigation report included details of the employee's previous acts of misconduct for which no disciplinary action had been taken.

While an overzealous or otherwise unfair investigatory process could render a dismissal unfair, the role of the investigator is to put together all the relevant information and the decision-maker should then decide what to do with it. In this case, the fact that the employee had committed two previous patient safety incidents was relevant information which the decision maker could take into account when deciding to dismiss for a further patient safety incident.

Pregnant Workers

Case: The Advocate General of the ECJ has given an opinion that a collective redundancy exercise is not in itself an exceptional case that can be used to justify the dismissal of a pregnant Spanish worker. The Advocate General's view was that in order for it to be lawful, there must be no plausible possibility of reassigning the pregnant worker to another suitable post.

According to the Advocate General's opinion, a pregnant worker has special protection from the beginning of the pregnancy even if she has not yet notified her employer of the pregnancy. It remains to be seen whether the ECJ will follow this opinion and the ECJ has been urged to clarify in its decision when the protected period for pregnant workers begins under the Pregnant Workers Directive.