being similar to a previous decision. Employers will also note that the material detriment test for employees to satisfy under regulation 4(9) is likely deemed higher than had previously been the case. Another relevant consideration for employers in a scenario such as this is that the changes to TUPE in January brought in change of location as a potential ETO reason.
Disregarding medical evidence
8 September 2014
A recent decision of the Employment Appeals Tribunal (EAT) provides a warning to employers that if they are to disregard medical evidence provided by an employee, they should consider getting their own medical evidence prior to making a decision to dismiss.
Many thanks to BusinessHR for this report on the EAT decision in the case of Perth & Kinross Council v Gauld.
Mrs Gauld, a solicitor, returned to work after a period of absence during which she had received treatment for cancer. She went off sick again, this time with work-related stress. While absent, she made allegations against her manager (which she subsequently withdrew) that the manager had caused her stress as she was unsupportive and had undermined her. The employer investigated this and found no evidence of this. It therefore commenced disciplinary action on the basis that the complaints were "unfounded and inappropriate" and "had no basis in fact". At the disciplinary hearing, Mrs Gauld produced a report from her clinical psychologist, who felt that she had returned to work too early and was suffering from post-traumatic stress. The manager did not accept that her actions had been affected by her illness, and dismissed her for gross misconduct. On appeal, Mrs Gauld submitted a more detailed report from her psychologist. This stated that her behaviour was due to over- sensitivity to perceived criticism which was common in those with cancer-related post-traumatic stress disorder. The appeal panel did not accept the psychologist's view although it did reduce her dismissal to dismissal with notice. Mrs Gauld succeeded in her unfair dismissal claim. The tribunal found that her employer had, on two occasions, disregarded her medical evidence without good reason, but had then failed to obtain its own medical evidence. This meant that the belief that the actions were unrelated to her condition were not reasonable, and her dismissal was not therefore a reasonable response. The EAT upheld the tribunal's decision.
Employment Tribunal can award costs of in-house lawyer
8 September 2014
Can an employer recover costs in respect of time spent by a legally qualified in-house representative?
Thanks to Daniel Barnett for bringing us Nicholas Hill’s case summary:
It has long been the position that such costs are recoverable (Wiggins Alloys Ltd v Jenkins [1981] IRLR 275) and the definition of 'costs' in the Rules of Procedure did not change the position.
The Claimant's claim was struck out as a result of his failure to comply with case management directions. The Employment Judge made an order for costs.
The Claimant/Appellant argued that the definition of costs, found successively in rule 38(3) of the 2004 Rules and rule 74(1) of the 2013 Rules, did not permit the award of in-house legal costs. He contended that the definition was exhaustive and the words 'fees, charges,
CIPP Policy News Journal
08/04/2015, Page 120 of 521
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