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created. The respondent had a standard rule that employment would be ended if there were more than seven days of sickness absence during probation. A three-month review was carried out by her manager on 13 November where her performance, attendance and conduct were viewed as satisfactory. She already had six days of absence but her manager was advised to make allowances for her disability. On 15 February 2013, her sixth- month review was held. Three examples of reports were used to support the finding that her performance was unsatisfactory and her manager recommended dismissal. The respondent extended the probationary period, introduced a performance improvement plan (PIP) and agreed further reasonable adjustments. Her second PIP meeting was held in June. Two weeks later, her manager reported that the claimant had not met performance objectives despite reasonable adjustments and support being in place. At this stage, the claimant had taken an additional seventeen days of sickness absence and was not producing reports of a suitable standard. The claimant was given four weeks’ notice to terminate her employment on 9 August 2013. She appealed the dismissal. Her appeal was dismissed; not for absence but because of the poor standard of her reports. The claimant made various claims to tribunal in relation to the PIP meeting. The ET found that during this meeting the manager had asked the claimant whether she was intelligent enough to understand a spreadsheet. The claimant replied along the lines that Albert Einstein was autistic but no one questioned his intelligence. Her manager’s manager also referred to the claimant as constantly rude although she believed this to be due to her personality and not her disability. When considering if there was discrimination arising from disability, the ET found that her manager’s comments were not because of her disability; he made them because of frustration at her lack of understanding of the spreadsheet and medical evidence suggested her disability had no impact on her ability to understand these. Similarly, the senior manager’s comments about rudeness were viewed by her as an observation about her personality and were not connected to disability. This led to their conclusion that there was no harassment because the
The early conciliation scheme was introduced by parliament to require an attempt to resolve disputes before they reach the tribunal. The legal framework of early conciliation requires the prospective claimant to give information about “that matter” to ACAS (Advisory, Conciliation and Arbitration Service) before presenting an application to start “relevant proceedings relating to any matter”. The ET decided that an early conciliation certificate can cover future events. The claim form presented by the claimant relied on matters that were raised as a breach of the implied term of mutual trust and confidence. This matter was notified to ACAS as part of the early conciliation process and only issues regarding a failure to deal with the grievance appropriately and the constructive dismissal fell after the date of the early conciliation process. The ET decided there was a connection between the matters in dispute at early conciliation and those contained in the tribunal claim form; the fact that resignation occurred afterwards did not mean it could not be covered by the earlier early conciliation. The EAT determined it was important that parliament had used the word ‘matter’, rather than ‘claim’ or ‘cause of action’, as this is broad and can cover the precise facts of the claim but also other events at different times or dates or involving other people. Similarly, the phrase “relating to any matter” will present the tribunal with a question of whether the proceedings started by the claimant relate to any matter in respect of the information provided to ACAS. It was also noted that there is also no requirement to notify ACAS of the actual dispute or facts of the matter itself; only the details of the prospective parties need to be provided. The EAT gave example of a situation where the employment relationship has deteriorated because of discrimination and, at this point, the matter is notified to ACAS. A later termination of employment is an additional factual matter that may or may not be related to the earlier matter; this is a question to be determined by the ET in each individual case. Therefore, the ET’s decision that the dismissal was related to the matters included in the early conciliation, meaning the early conciliation certificate covered this future event, was a correct conclusion to reach and the appeal was dismissed. n
conduct was not related to her disability. On appeal, the EAT confirmed that the question is whether the conduct is related to the protected characteristic. This is a broad test which needs to look at all the evidence, not just the harasser’s perception of their conduct. It is likely that any harasser will not view their conduct as harassing and will not volunteer that their conduct was, in fact, because of the protected characteristic. The question is whether, objectively, the conduct relates to the disability by looking at the overall picture. The case was remitted back to tribunal to review this issue, along with others.
...early conciliation certificate can cover future events...
Compass Group UK & Ireland Ltd v Morgan An important point of procedure relating to early conciliation has been heard at the EAT. The issue in question was whether an early conciliation certificate can cover future events. The claimant transferred to the respondent from her previous employer, with service from 29 September 2008. The claimant had an acute anxiety disorder which the respondent was aware of. The claimant alleged that she was instructed to work in a less senior position at an alternative location in September 2014. She brought a grievance against the respondent on 13 October 2014. Solicitors were instructed in November and early conciliation concerning a breakdown of trust in the employer started on 14 November 2014. A certificate of completion of early conciliation was issued on 3 January 2015. The claimant resigned on the 18 March 2015, two months after early conciliation ended, and lodged an ET claim for constructive unfair dismissal on 20 March 2015. The respondent contended that the constructive dismissal could not be presented because the dismissal had not occurred at the time of the conciliation, therefore the requirement to undertake early conciliation had not been fulfilled.
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Issue 26 | December 2016/January 2017
| Professional in Payroll, Pensions and Reward |
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