5 April 2018

Take note of recent Case Law

On 5 August 2015, the charity closed, dismissing all staff by reason of redundancy. Although the restructure plans had envisaged a process of consultation, this had not happened.

A number of employees brought a tribunal claim for protective awards under s.189 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A). Under s.188 of TULR(C)A, an employer must consult appropriate representatives of the employees if it is proposing to dismiss as redundant 20 or more employees within a period of 90 days or less.

The EAT held that the tribunal had been entitled to find that its collective consultation duties were triggered on 12 June 2015, when there was a proposal that could affect all employees. The EAT found that there had been a clear, but provisional, intention to dismiss for redundancy, not limited to particular categories of employee.

Agreeing with the tribunal, the EAT rejected the charity's argument that the dismissals, which took place in August 2015, were different to the dismissals proposed in the 12 June business plan. Therefore the fact that the redundancies which were actually carried out were less than 20 this did not remove their responsibility to collectively consult.

Disability Discrimination

The Employment Appeal Tribunal (EAT) has ruled that ‘cancer' for the purposes of the Equality Act 2010 includes pre-cancerous lesions, as it upheld the unfair dismissal appeal of a woman who suffered from a lesion that could have become malignant.

The EAT considered the definition of a ‘disabled' person under the Equality Act.

Lofty had been diagnosed as suffering from lentigo maligna, described as a pre-cancerous lesion that could result in lesion malignant melanoma (skin cancer). Lofty worked as a café assistant, and she was dismissed for taking time off from work while suffering from this condition.

She told the EAT: "Had my condition been left untreated, without surgery or medical intervention, it is highly likely that it would have invaded the healthy cells outside the epidermis and more aggressive cancer treatments such as radiotherapy or chemotherapy would have been required.

At the time of her dismissal, Lofty had undergone successful surgery to remove cancer cells from her face before they had the chance to spread to the rest of her body.

The EAT found that the relevant point of determination of a disability, in this case cancer, is at diagnosis, not after treatment.