Employment law
...distinction between the claimant’s condition, namely his delusional beliefs, and the impact of this on his ability to carry out day-to-day tasks.
too much of a change in her daily duties. Argos treated her concerns as a grievance and ultimately rejected it, informing her that she was to move into the new role. The claimant later brought claims to the ET, including unfair dismissal and failure to provide redundancy pay. The ET upheld her claim for constructive unfair dismissal. In forming their decision, they agreed that the new role offered had been significantly different to the old one and Argos had failed to properly assess how the 30% rule should be applied. The ET also found that as Argos had failed to properly consult with the claimant, it had breached the implied term of mutual trust and confidence. As the claimant had resigned in response to these breaches, she was constructively dismissed. The ET failed to deal with the redundancy pay issue, instead postponing this to a remedy hearing. Argos appealed on numerous grounds, arguing that the ET had failed to consider if the organisation had acted reasonably in the circumstances. Argos also stated that the ET had misinterpreted the law in finding the new role was not a suitable alternative role. The EAT agreed that the ET had carried out a fair, objective assessment as to whether Argos’s actions amounted to a breach of the implied term and had correctly concluded this amounted to a constructive dismissal. That said, as constructive dismissals are not always necessarily unfair dismissals, they had failed to properly consider if Argos had acted reasonably. A significant aspect of this decision was the ET’s failure to assess the suitability of the new role. The EAT explained that, from what it could see, the ET had not approached this in the correct way, and it was therefore unclear how they had
assessed the role was unsuitable. To this end, the EAT concluded that this needed to be revisited to confirm whether the dismissal was fair and what redundancy pay should be due to the claimant. The case was remitted to the ET for further consideration on this point. Sullivan v Bury Street Capital Ltd The EAT has considered whether a claimant suffering from paranoid delusions had a disability for the purposes of the Equality Act 2010. Mr Sullivan, the claimant in this case, developed paranoia in May 2013, later specifying that this caused him to deliberately avoid putting information into his work calendar, or deliberately giving misleading information. The chief executive became aware of this situation in July 2013, admitting that the claimant appeared to be in a “bad place psychologically”. Despite this, the two went on a business trip in September 2013, where the claimant’s condition appeared to be improving. Over the next few years, the claimant received psychological help for his condition and started to manage it much more effectively. However, the relationship between him and the chief executive began to break down, with continued discussions being had over his time- keeping and attitude. His paranoia did not affect him again at work until 2017, when a discussion over his remuneration was held. Following this, the claimant’s condition decreased significantly, leading to him
taking time off work. After being dismissed, he brought a claim to the ET for disability discrimination. The ET addressed whether he was disabled for the purposes of the Equality Act, ultimately concluding that he was not. They held that although there was a ‘substantial adverse effect’ present both in 2013 and 2017, it did not meet the definition of ‘long-term’. Following his improvement towards the end of 2013, this condition had not resulted in the relevant effect on the claimant. For example, he had been allowed to attend a business trip, which would not have been permitted if he were not fit for the task. The claimant appealed on numerous grounds. The EAT dismissed the appeal, finding that the ET had lawfully drawn the distinction between the claimant’s condition, namely his delusional beliefs, and the impact of this on his ability to carry out day-to-day tasks. Explaining that the effect of a condition can vary over time, they held that although there was a substantial adverse effect in 2013, and again in 2017, in neither case was it likely that the condition would last twelve months or more. The ET had correctly assessed the intermittent years where the condition had not had an adverse effect, taking evidence from medical professionals, and other employees of the respondent, to find that the claimant’s condition had improved between September 2013 and April 2017. The EAT also dismissed the claimant’s argument that his condition was likely to recur. This was because the law on recurring conditions relates to past disabilities; the claimant’s condition had continued throughout the period in question. Where an adverse effect does occur again at a later date, it does not mean that the ET automatically needs to conclude that the first occurrence was ‘likely’ to reoccur; they need only assess the situation with the evidence at hand. The EAT agreed that the adverse effects were unlikely to recur as the triggering events. n
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| Professional in Payroll, Pensions and Reward |
Issue 66 | December 2020 - January 2021
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