Employment tribunals continue to shape the HR landscape. In this week’s HR article we examine recent cases and provide insights to help employers navigate legal complexities.

Hope v British Medical Association

At what stage can an employer safely decide that 'enough is enough' and dismiss an employee? 
The Employment Appeal Tribunal (EAT) in this case found that an employer acted within a range of reasonable responses after they dismissed an employee who was employed by the BMA as a Senior Policy Advisor.

Throughout his employment, he raised 7 informal grievances over 13 months and refused to withdraw or pursue them further, which undermined his relationship with his manager. The employer invited the employee to a formal grievance meeting to discuss the grievances made, which he did not attend. The employer reached a decision that the grievances had been frivolous and vexatious, resulting in all of his grievances being dismissed.

Following this outcome, the employee was invited to a disciplinary hearing where he was dismissed for gross misconduct in connection with the grievances he brought and for failing to follow management instructions. The employee appealed, unsuccessfully. He then brought an unfair dismissal claim to the Employment Tribunal (ET), which found that the decision was a fair dismissal.

The employee then appealed to the EAT, on the basis that the ET ruling had incorrectly held that his conduct was gross misconduct. The EAT found the conduct did not amount to gross misconduct, but accepted it was reasonable to dismiss the employee and that the BMA had sufficient reason to do so.

Advice for employers

This case shows how employers might be able to deal with an employee who raises multiple complaints which may be frivolous and vexatious. The case sets out 4 key questions to determine whether you are acting reasonably by treating the conduct as a reason for dismissal:

1.    Whether the employer had genuine belief in the misconduct?
2.    Whether it had reached that belief on reasonable grounds?
3.    Whether that was following a reasonable investigation?
4.    Whether the dismissal of the claimant fell within the range of reasonable responses in the light of that misconduct?

F Lee v R&F Properties

This case is another example of an employee who has mishandled interview questions, which can result in discrimination claims. Fong Fong Lee was offered a job as a senior marketing manager at a London property development firm R&F Properties; however, this offer was rescinded after she had resigned from her previous job to take up the new role.

During a meeting before her arranged start date, the firm’s Vice President asked her out of the blue how old her children were, she replied that they were four and nearly one. After this conversation, Lee was told that the job offer was withdrawn because of a headcount freeze from HR, which was decided independently of the interview.

After the meeting, the Manager wrote to the Deputy General Manager to enquire about the post, who replied that he needed to talk to HR headquarters and apply the role as a headcount. The Deputy Manager was then informed by HR that there was a freeze on headcount because of the effects on the wider property market in China and that he could not employ Lee. The VP confirmed to the Tribunal that he had no control over the decision, he was surprised and that it was unusual for HR to freeze headcount in this way. During the tribunal the Deputy Manager did not explain why he needed to talk to HR about headcount on this occasion and questioned why he had not checked the required headcount permitted prior to the recruitment process.

It was concluded that the job offer was withdrawn as a result of Lee’s sex; the tribunal stated that the same question would not have been asked if it was a man and it was unlikely that the offer was rescinded because of the property market in China. They found that it was more likely than not that the Deputy Manager gave the instruction to withdraw the contact of employment after she was asked about her children’s age.

Lee stated that the situation caused her panic, humiliation, stress and upset, as she saw sex as the reason the offer was rescinded. She was awarded £61,634.72 in compensation for financial loss and £29,963.10 for injury to feelings, a total of £91,597.82.

Advice for employers

This is another example of how employers can mishandle interview questions. It is crucial that employers know that discrimination laws apply to prospective employees, and this case highlights the need to strictly follow these laws during the hiring process. Asking candidates about their martial status or children is unacceptable. Even if the candidate is rejected for unrelated reasons, the act of asking leaves employers exposed to tribunal claims.

Bugden V Royal Mail

In this case Mr Bugden was employed by Royal Mail as an operational post grade worker from August 1994 to December 2019. He had 32 periods of absence, which amounted to 297 days in total between 2015 and 2019. Some of the absences related to long-term medical conditions, however many did not. The absence management policy was applied, resulting in the employee’s dismissal due to the regular and substantial periods of absence.

Mr Bugden brought a claim to an ET claiming this his dismissal was unfair and that he had been subject to disability discrimination. He claimed that his employer at the time did not make reasonable adjustments to accommodate his disabilities. He claimed that he was a disabled by reason of anxiety and depression, visual migraines, musculoskeletal disorders and bladder issues.

The employment tribunal found that discounting disability-related absences in this case would not have been a reasonable adjustment to make; Mr Bugden would have triggered the attendance management policy as a result of his repeated non-disability-related absences; and in view of the requirements of the attendance management policy, the decision to dismiss Mr Bugden fell within the band or range of reasonable responses.

The ET dismissed Mr Bugden’s claims, Mr Bugden then appealed to the EAT on the following grounds.

•    Ground 1 - The ET erred in law when dismissing the claim for breach of the duty to make reasonable adjustments, by failing to consider the possibility of redeployment as a reasonable adjustment. This should have been raised with the parties by the Employment Judge.

•    Ground 3 - The ET erred in law when dismissing the claim for unfair dismissal, by not taking into account the potential for redeployment as an alternative to dismissal, when determining if the dismissal was fair.
The appeal was allowed in part. On Ground 1 Mr Bugden argued that his manager contributed to his disability-related absences and redeployment should have been considered - this was dismissed. On Ground 3 Mr Bugden argued that the tribunal should have considered redeployment as a possible alternative to dismissal, regardless of whether it was raised by the parties - this was upheld.  

Advice for employers

When an employee is disabled, employers are under a duty to make reasonable adjustments for the disabled employee, and this includes altering attendance policies.

Redeployment is a potential reasonable adjustment; if a disabled employee is struggling with their current role, employers should consider if redeployment to another role is suitable or possible.