Reward insight
The judge found it surprising that an employer at the beginning of a genuine consultation process would place a long- serving employee on gardening leave with no work and no contact. The EAT agreed with this view and decided that a consultation process which is described as insensitive and perfunctory cannot also be characterised as reasonable. Therefore, the dismissal was allowed and the case was sent to a different tribunal to decide whether an insensitive consultation process resulted in the claimant being unfairly dismissed. Salvation Army Trustee Company v Bahi The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) protect employment in circumstances where there is a service provision change and the activities are carried out by another person which are fundamentally the same as the activities carried out before the change. The EAT has assessed the meaning of ‘activity’ when determining whether there was a TUPE transfer. Coventry City Council provided services to homeless people in the city through external providers. Bahi and three other employees worked at CCL which provided ‘accommodation-based support’ for service users over the age of eighteen. Support workers were available from 9a.m. to 5p.m. and provided help on benefits, filling in forms, budgeting and money management. They would also provide help on how to access education and work and addressed issues such as mental health and substance misuse. The support provided by CCL was based at 41 units of accommodation in ten houses around Coventry for a period of up to two years. In reality, most were expected to stay for a maximum of twelve months and many moved on to private accommodation after six months. The Council decided that they were going to merge support for the homeless and ex-offenders to achieve a quicker supported return to private accommodation. They put out a tender for this service and the Salvation Army Trustee Company (SAT) were successful. SAT acquired a large hostel premises to provide accommodation units for service- users over the age of 25 for up to 112 days. The hostels were staffed overnight and support workers were available from
7a.m. to 7p.m. The service was operational from 1 April 2014; CCL, Bahi and her colleagues argued that their employment transferred to SAT by virtue of there being a service provision change. ...length of a period of sickness absence does
a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to- day activities. The claimant was employed as a design and technology teacher from January 2008. From 2010, the claimant presented numerous sick notes to his employer containing conditions such as ‘leg pain and stress’ and ‘ankle pain and stress’. From 2013, the sick notes simply contained ‘stress’ or ‘stress at work’. An occupational health assessment was carried out which found that the claimant took no medication for stress and he was mentally and physically able to perform his role. The report found that there were outstanding management issues at work which caused the claimant’s stress and left him feeling unable to return to work. The claimant made numerous tribunal claims containing over ninety allegations including a claim of disability discrimination. When examining whether the claimant was disabled, the ET drew a distinction between a mental impairment, protected under the Equality Act, and a reaction to life events. The ET decided that the employee’s stress was due to his unhappiness at his perceived unfair treatment and there was little or no evidence that the stress had a negative effect on his ability to carry out normal activities. The ET found that the employee was not disabled and also commented that the length of a period of sickness absence does not bind the ET to finding conclusion. They commented that there will be a class of cases where stress as a reaction to circumstances is likely to become entrenched and the person will not give way, compromise or return to work. Yet, in other respects, the stress causes little or no apparent adverse effect on normal day-to-day activities. Therefore, stress alone will not be classed as a disability. The employer succeeded in bringing a costs order against the claimant for more than £100,000. The EAT found that the claimant had acted unreasonably in bringing and pursuing his claims and, even though he was currently unable to pay costs due to being off work, there was no reason why his future earning capacity should not be taken in to account when making a decision on costs. n that the employee is disabled. The EAT agreed with the ET’s
not bind the ET to finding that the employee is disabled
At the ET, the definition of ‘activity’ was discussed at length. The ET explained that the definition could not be too general but also not too narrow that changes in premises, the nature, quantity and timing of activities would result in activities not being fundamentally the same. In this case, the activity before and after the change in contractor was “the provision of accommodation-based support for homeless men and women and the input of a support worker to facilitate the individual returning to private accommodation as soon as possible”. The service was fundamentally the same before and after the change because slight differences in age of service issuers, having a single point of referral, and shorter period of support or location of accommodation were not fundamental changes. Therefore, there was a service provision change and the employment transferred to SAT. SAT appealed the decision. The EAT agreed with the approach of the ET and found there was no error in law. ‘Activities’ in the legislation needs to be given its ordinary, everyday meaning and can be determined through using contractual documents, the actual work undertaken and the requirements of the contract provider. A narrow focus on activities needs to be avoided or the purpose of the SPC provision in TUPE regulations would be defeated. Herry v Dudley Metropolitan Borough Council The EAT have considered whether stress is classed as a disability. Under the Equality Act 2010, a person is disabled if they have
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Issue 28 | March 2017
| Professional in Payroll, Pensions and Reward |
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