April Quarterly Case Law Update

For the next instalment in our quarterly case law series, we look back at some of the key cases since January 2020, and the lessons we can learn from them.

Disability discrimination

• In Mrs I Shah v TIAA Ltd, the Employment Appeal Tribunal (EAT) considered the issue of reasonable adjustments and whether it was relevant that Mrs Shah did not suggest a particular reasonable adjustment prior to her dismissal.

Mrs Shah was a senior audit manager for the respondent which involved her visiting clients and auditing their performance. She was expected to work 150 chargeable days each year to cover the cost of her salary. However, as a result of a back condition (which amounted to a disability under the Equality Act 2010), she became unable to travel to visit clients and her productivity fell below 50% of her target. Mrs Shah requested home-working and a reduction to her chargeable hours, but her employer considered that these adjustments were not feasible in the context of her client-facing role. Importantly, Mrs Shah did not indicate that she would be willing to work part time and/or accept less pay. The parties reached an impasse in their discussions, and accordingly she was dismissed on the grounds of capability.

Mrs Shah brought a number of claims including for failure to make reasonable adjustments. Having lost this claim in the employment tribunal she appealed to the EAT alleging that her employer should have considered part-time working as a reasonable adjustment for her. She argued that it was the employer’s duty to make reasonable adjustments and the onus was not on her to suggest adjustments prior to dismissal.

In what will be a welcome decision for employers, the EAT dismissed the appeal. While it agreed that the onus is on an employer to suggest adjustments, it considered that the fact an employee had never thought of a particular adjustment would be relevant to the question of whether such an adjustment could be considered to be reasonable. It also found that an adjustment that an employee would inevitably reject is unlikely to be reasonable. In this case, there was no evidence that Mrs Shah had ever been interested in working part time for less money. In fact, she had made it clear during the discussions prior to her dismissal that she expected her remuneration to remain the same. 
While employers are still clearly required to make reasonable adjustments, the fact an employee failed to suggest an adjustment prior to dismissal is relevant in considering whether that adjustment was reasonable.

• In Ishola v Transport for London, another case looking at the duty to make reasonable adjustments, the Court of Appeal (CA) considered the requirements for a “provision, criterion or practice” (PCP) which triggers the duty to make reasonable adjustments.

Mr Ishola was dismissed on the grounds of medical incapability following more than 12 months of sickness absence. He raised a number of grievances during his employment and he felt that the last of these had not been properly dealt with because his grievance was not investigated until after he had been dismissed.

He complained that he had been subjected to disability discrimination for failure to make reasonable adjustments. In particular, he stated that his employer’s requirement for him to return to work without a proper investigation of his grievance amounted to PCP that had placed him at a substantial disadvantage. At first this claim failed as the employment tribunal found that there was no PCP operated by the employer because the alleged requirement was a one-off act in the course of dealings with one individual. This was supported by both the EAT and the CA, with the CA adding that although the concept of a PCP is widely interpreted, it does not apply to every act of unfair treatment of a particular employee.

The case gives some comfort that employees will need to demonstrate an element of repetition or wider application when arguing that their employer has applied a PCP to them which could trigger the duty to make reasonable adjustments.

• Finally, in Itulu v London Fire Commissioner, the EAT considered whether the decision to strike out Ms Itulu’s disability discrimination claims on the ground that she had behaved unreasonably had been properly reached.

Ms Itulu had been employed as an administrative officer. She brought a number of claims against her employer, including one based on disability discrimination.

Her employer disputed that she was disabled within the meaning of the Equality Act 2010 and asked for joint medical experts to be appointed to advise the employment tribunal (and it offered to pay the cost for this). The employment judge agreed and made an order for joint medical experts. However, Ms Itulu refused to be examined by the suggested experts for reasons which were largely unclear but included unfounded allegations that they were unsuitable to provide expert advice.

However, both the employment tribunal and EAT held that Ms Itulu’s conduct was unreasonable, a fair trial could not be held without expert reports and the circumstances of the case justified a striking-out order.

This case makes it clear that where a claimant refuses to allow expert evidence without a valid reason, it is likely their claim will be struck out.

Unfair dismissal

• The case of Uddin v London Borough of Ealing considered whether an employee had been unfairly dismissed where the investigating officer had failed to inform the dismissing manager of a key piece of information relevant to the allegation of gross misconduct.

In this case, Mr Uddin was dismissed for gross misconduct following an accusation that he had sexually assaulted a colleague at a pub after work.

During the investigation, the colleague disclosed that she had made a complaint to the police. However, before the disciplinary hearing she informed the investigating manager that she had since withdrawn her police complaint after discussions with the police. The investigating officer failed to pass this information on to the disciplinary manager. The disciplinary manager dismissed Mr Uddin and in doing so he stated that the complaint to the police was a factor supporting the colleague’s version of events.

Mr Uddin brought a claim for unfair dismissal. Initially, the claim was dismissed on the basis there had been sufficient information for the disciplinary manager to fairly dismiss Mr Uddin, regardless of the fact that they did not know that the police complaint had been withdrawn.

However, the EAT disagreed and found that the reasonableness of the disciplinary manager’s decision had been affected by the fact that the investigating manager had learned that the police complaint had been withdrawn but had not shared this information.

In coming to this decision, the EAT considered that the knowledge or conduct of a person other than disciplinary manager could be relevant both in relation to considering the reason for the decision and the reasonableness of the decision to dismiss.

In this case, the investigation manager had conducted the investigation, recommended that there was a case to answer and then presented the management case at the disciplinary hearing. The fact he knew that the colleague had withdrawn her police complaint, and that the disciplinary manager had taken her decision without taking that into account, was something that should have considered when deciding if the dismissal was substantively fair.

This case emphasises the need for those involved in a disciplinary process to ensure that the information they provide is, and remains, accurate and up-to-date at the time of the decision to dismiss. Failure to do so may undermine the dismissing manager’s ability to consider the true position and the fairness of the dismissal.

Vicarious liability

• In Morrisons and Various Claimants, the Supreme Court considered whether an employer can be held vicariously liable when an employee commits misconduct as a personnel vendetta.

The facts of this case were that a disgruntled employee of Morrisons, who was employed as an internal auditor, deliberately published payroll data for the employer’s entire workforce on a publicly available file-sharing website.

Some of the affected employees brought a group action for claims in the civil courts, including breach of statutory duty under the Data Protection Act 1998 and misuse of private information. The claimants brought the claims against the employer on the basis that it was vicariously liable for the actions of its rogue employee.

The lower courts sided with the Claimants, finding that the employer was vicariously liable for its employee’s actions because that employee had acted in the course of his employment (i.e. the data he had published had been gathered by him in his role as an internal auditor).

However, the Supreme Court unanimously decided in Morrisons’ favour.

When considering whether there was a sufficiently close connection between the wrongful conduct and the employee’s job, the court acknowledged that the auditor had access to the data by virtue of his role, but stated that the mere fact an employee’s employment gives them an opportunity to commit a wrongful act isn’t sufficient to hold the employer vicarious liability. The court said there needed to be an element of the employee acting, however misguidedly, in furthering his employer’s business. It stated that where an employee is acting out of personal vengeance or in pursuit of private ends, an employee is not acting on his employer's business.

The judgment appears to be a sensible one. Indeed, had the Supreme Court sided with the lower courts, Morrisons would have been liable for the acts of an employee that had gone out of his way to harm the company (even going so far as to report his own wrongdoing to several newspapers, pretending to be a concerned member of the public). 
However, while the decision will comfort employers that they will not always be held liable for data breaches committed by rogue employees, employers are urged to remember that they may still be liable to fines and compensation claims if they fail to safeguard data in compliance with the current data protection regime.