The judgement against Starbucks was made in mid-December, and there will now be a separate hearing to determine any compensation.
As a supervisor at Starbucks at Clapham Junction, in south-west London, Ms Kumulchew was responsible for taking the temperature of fridges and water at specific times and entering the results in a duty roster. She was accused of falsifying the documents after mistakenly entering wrong information. Acas provides guidance for employers on equality and discrimination. The Equality Act protects employees from discrimination - direct, including by association and by perception, indirect, harassment and victimisation - because of disability. For example, the dismissal of an employee because they are dyslexic could be potentially discriminatory.
Is pulling a sickie a breach of conduct? 18 March 2016
It may come as no surprise that the Employment Appeal Tribunal has held that pulling a sickie is dishonest and a fundamental breach of conduct.
With thanks to Daniel Barnett’s employment law bulletin for providing a summary of this case.
In Metroline West v Ajaj Mr Ajaj was a bus driver. He wrongly claimed to be more sick than he was, and surveillance evidence proved him to be exaggerating. The employment tribunal held that fairness of dismissal should be assessed based on traditional 'capability' considerations, i.e. when could the employee reasonably be expected to return to work based on his real (rather than exaggerated) symptoms. The Employment Appeal Tribunal (EAT) disagreed. It held (at para 54) that an employee who 'pulls a sickie' is dishonest and in fundamental breach of contract. The principal reason for dismissal of a malingering employee is conduct, not capability, and the procedures to be followed are the traditional British Home Stores v Burchell ones.
CIPP comment
British Home Stores v Burchell is a significant employment law case from 1978 and is where the ‘Burchell Test‘ comes from. This case set out some of the principles that an employment tribunal should follow in deciding whether a dismissal for misconduct is fair or unfair. To establish fairness in dismissal, the employer must demonstrate:
Belief employee is guilty of misconduct
Belief based upon reasonable grounds; and
At time of belief, it carried out as much investigation as reasonable
Disability and imputed knowledge 22 March 2016
Can knowledge by Occupational Health of a disability be imputed to the employer?
No, held the Employment Appeal Tribunal (EAT) in Gallop v Newport City Council .
With thanks to Daniel Barnett’s employment law bulletin which summarises the case:
The EAT found, following the Court of Appeal's guidance in CLFIS (UK) Limited v Reynolds , that knowledge cannot be implied, even where the fact of disability is already known within the organisation. The EAT opined that the focus of an employment tribunal's enquiry ought properly to be on the thought-processes and motivation of the decision-maker. The test is: did the decision-maker know of the disability and were they influenced by it? This decision conflicts with the EHRC Statutory Code of Practice on Employment at paras.5.17 to 5.19 which provide that employers will usually not be able to use the knowledge defence to a disability discrimination claim if an employer's agent or employee (such as Occupational Health) has knowledge. The Guidance is clear that knowledge is not imputed if it is gained by a person providing independent services to a worker, such as counselling.
CIPP Policy News Journal
25/04/2016, Page 83 of 453
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