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made in the public interest, this does not have to be their predominant motive in making the disclosure. Applying these factors to the case, the court found that the disclosure concerned deliberate wrongdoing in the form of misstating accounts to the value of around £2–3 million. Although the accounts were internal, they would be used to calculate the statutory accounts of a substantial and prominent business. Therefore, the ET had been correct to come to the conclusion that the disclosure had been made in the public interest and the appeal was dismissed. Elmore v The Governors of Darland High School and another The EAT has considered whether a dismissal is procedurally unfair when an employer fails to include reasons for upholding the original dismissal decision in the appeal outcome letter. The claimant had a long-standing career as a maths teacher and had been employed at the school since September 2002. In 2013, the Welsh School Inspectorate carried out an inspection at the school and found the school’s performance in mathematics was consistently lower than the performance in similar schools. They made a number of recommendations for the school to improve the quality of teaching and assessment in this subject. After appointing a new head of maths, a number of the claimant’s lessons were observed. The observers were concerned with her performance and the exam results in January 2014 showed that her class had performed particularly poorly. The claimant was placed on a capability procedure; her teaching was assessed as ‘adequate’ and she was required to achieve the target of one lesson of eight assessed over twelve months being assessed as ‘good’. The claimant was offered support and encouragement but she failed to reach the required standard. The school decided that dismissal was appropriate in all the circumstances as she was unlikely to improve. The claimant appealed and the original decision was upheld by the appeal panel. The outcome letter did not set out the panel’s reasons for upholding the original decision to dismiss but did say that her performance continued to fall below the
The claimant was a branch manager in an engineering business. The business had been struggling to make a profit and was continually reviewing whether they could make cost savings. The claimant was absent from work from October to December 2014 because he was receiving treatment for renal cancer; a disability under the Equality Act 2010. During the absence, the company realised that they could absorb his responsibilities in other job roles which would make a cost saving of around £40,000 each year. After a consultation process, the claimant was made redundant in April 2015. He made a number of claims including a claim of discrimination arising from a disability under section 15 of the Equality Act 2010. The ET judged that when considering a section-15 claim, the ‘something’ arising from the disability does not have to be the only, or main, cause of the employer’s action; it is simply required to be the effective or operative cause. In this case, there was a link between the disability- related absence and the dismissal because his absence allowed the company to observe the way his work was dealt with and showed they could manage without him. However, this was not the same as saying the claimant was dismissed because of his absence; and, therefore, the claim was dismissed. The claimant appealed on the basis that the ET had not applied the correct test to decide the claim. The EAT dismissed the claim as they found the tribunal had drawn the correct distinction between the context within which the redundancy occurred and the matters that caused the decision. The EAT commented that, in many cases, the disability-related absence will be the effective cause of the conclusion that the employer can manage without that particular employee; however, this does not mean that there will no cases where the absence is merely part of the context and not the effective cause. In this case, the absence provided the occasion on which the employer was able to identify they could do without the employee but this could have been identified in other ways during other circumstances. Therefore, on these particular facts, it was open to the ET to determine that the cause of the claimant’s dismissal was the view that the employer could manage without him and not his disability-related absence. n
standards and there was no assurance that a further period of support would improve this. The claimant brought a claim of unfair dismissal. The ET found that the capability procedure was fair as the employer had set a realistic and reasonable standard for the employee to reach and had been given adequate supervision and encouragement to reach this. Examining the appeal letter, the ET determined that by upholding the original decision the appeal panel accepts the decision and the reasons for the decision made at the earlier stage. Looking at the procedure as a whole, they felt the decision to dismiss was both procedurally and substantively a decision that fell in the band of reasonable responses so was fair. The decision was appealed on the ground that, in the absence of reasons in the appeal letter, the appeal cannot be classed as a properly considered appeal. The EAT did criticise the outcome letter for not providing reasons for the decision to uphold the original decision as it was a career ending letter for a long-standing member of staff; however, they viewed that the letter set out the appeal panel’s decision and the grounds for making this decision. The EAT highlighted that the question to be considered is whether the ET’s conclusion was open in the circumstances of the case. Taking in to account all the facts, the EAT reiterated that there was no doubt the claimant’s performance was below the required standard; the capability process was robust and fair; and there was no fresh evidence or new arguments raised at the appeal stage. In these circumstances, without evidence to suggest otherwise, the appeal panel can be seen as sharing the same view as the dismissal panel when reaching the same decision. Charlesworth v Dransfields Engineering Services Discrimination arising from a disability occurs when an employer treats a person unfavourably because of something arising as a consequence of their disability. Claims usually occur in this area when employers make decisions which take in to account disability-related absences. The EAT have considered whether a redundancy made after sickness due to a disability was discrimination arising from a disability.
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Issue 33 | September 2017
| Professional in Payroll, Pensions and Reward |
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