An Employment Tribunal held that the employer had imposed a “provision, criterion or practice” that she be able to get back to work and perform her essential duties, and that they had failed to make reasonable adjustments to enable to do so by failing to act on the medical advice they had received. Croft Vets appealed, largely unsuccessfully, to the EAT ( Croft Vets Ltd & Ors v Butcher) , who agreed that requiring her to be able to return to work was a PCP, and accepted that it was possible for payment for private psychiatric treatment to be a reasonable adjustment. An appeal against a finding of constructive dismissal did succeed because the allegation had never, in fact, been raised before the ET. This case does not establish a general principle that employers must pay for private treatment, but in this case the payment was for: “ a specific form of support to enable the Claimant to return to work and cope with the difficulties she had been experiencing at work ”.
Extension of Time - Unfair Dismissal
14 November
If a Claimant asserts that he did not have mental capability to bring a claim in time, does a tribunal have jurisdiction to hear a claim brought as soon as the Claimant was able to, if it was brought outside of the time limit?
Yes, on the facts of this case, according to Norbert Dentressangle Logistics Limited v Mr Graham Hutton.
Daniel Barnett reports:
The Employment Judge concluded that it was not reasonably practicable for the Claimant to have presented the claim within the three month time limit. This was on the basis that the Claimant remained unwell and he was having significant difficulty as he explained it. The Employment Judge relied upon the Claimant's graphic description of his inability to function normally. The Employment Judge then turned separately to look at the second question, that of whether the claim was brought within a reasonable time thereafter. It was the Claimant's position that he dealt with the claim as soon as he felt able. The Employment Judge had no reason to doubt the Claimant's credibility and accepted this.
The EAT concluded that it was reasonable for the Claimant to delay beyond the initial period, on the basis that it accepted this evidence.
Repayment Clause: Unenforceable Penalty?
15 November 2013
Can a tribunal consider whether a repayment clause is an unlawful penalty?
Yes, holds the EAT in Cleeve Link Ltd v Bryla .
Daniel Barnett’s Employment Law Bulletin summarises the case:
The employer had paid money for fees and air flight to the agency which recruited the employee from Poland. The employment contract stated that such fees and costs could be deducted from the employee's wages, on a sliding scale which reduced over time. The employee was summarily dismissed for gross misconduct 12 weeks into her employment, whilst the clause was still in effect. The employer set the fees off against outstanding salary, and she brought an unauthorised deductions claim.
CIPP Policy News Journal
16/04/2014, Page 123 of 519
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