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Monthly Knowhow Case Law Update

This note does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.

May 2017

This is a summary of some of the most important cases reported in April 2017. It is not intended to be a full analysis of each and every case and some cases reported this month are not contained in this summary. We have made an editorial decision about which cases to include to ensure that the document remains manageable. Instructions

Clicking on the Case name will take you to the actual case report.

Clicking on "read more" will take you to our PM summary and action points/commentary

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This edition includes:

"NEED TO KNOW" INDIRECT DISCRIMINATION 1. No "reason why" required when assessing disadvantage

Essop and other v Home Office (UK Border Agency); Naeem v Secretary of State for Justice Read more (p4) REDUNDANCY 2. No lesser standard of fairness when "selecting in" in redundancy context

Green v London Borough of Barking & Dagenham Read more (p5)

DISABILITY DISCRIMINATION 3. Requirement to sit a multiple choice test amounted to a failure to make reasonable adjustments and discriminatory treatment

Government Legal Service v Brookes Read more (p6) MATERNITY DISCRIMINATION 4. Is the application of a general policy unfavourable treatment due to maternity leave? Interserve FM v Tuleikyte Read more (p7)

"NICE TO KNOW" SOME OTHER SUBSTANTIAL REASON 5. Is it fair to dismiss a nurse with a legal right to work if concerns remain over true identity? Ssekisonge v Barts NHS Health Trust Read more (p8) DISCRIMINATION 6. Forced retirement under regulation A19 of the Police Pensions Regulations 1987 is not discrimination Harrod and others v Chief Constable West Midlands Police and others Read more (p9) APPRENTICESHIP 7. Compensation awarded where an apprenticeship is ended early due to redundancy Kinnear v Marley Eternit Ltd t/a Marley Contract Services Read more (p9)

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NATIONAL MINIMUM WAGE / SLEEPING IN 8. Appeals decided on whether National Minimum Wage (NMW) is payable when sleeping in Focus Care Industry v Roberts; Frudd v The Partington Group; Royal Mencap Society v Tomlinson-Blake Read more (p10) REPRESENTATION 9. £2 compensation for an employee denied his choice of representative Gnahoua v Abellio London Read more (p11) UNFAIR DISMISSAL 10. Allegations of gross misconduct do not need to be specifically categorised Adeshina v St George's University Hospital NHS Foundation Trust Read more (p11) UNFAIR DISMISSAL 11. Is it reasonable to dismiss for gross misconduct if witnesses were not interviewed? Moncrieffe v London Underground Read more (p12) SHARED PARENTAL PAY 12. Police force policy of paying statutory minimum shared parental pay is not discriminatory Hextall v Chief Constable of Leicestershire Police Read more (p12) UNLAWFUL DEDUCTIONS 13. Can an ET determine issues relating to the construction of a contract? Weatherilt v Cathay Pacific Read more (p13)

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"NEED TO KNOW" INDIRECT DISCRIMINATION 1. No "reason why" required when assessing disadvantage

Essop and other v Home Office (UK Border Agency); Naeem v Secretary of State for Justice Summary The Supreme Court has given its decision in the cases of Essop v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice. These judgments, delivered together, focus on indirect discrimination on grounds of: 1) race and/or age and 2) religion, respectively. Indirect discrimination requires a Provision, Criteria or Practice (PCP) which applies to all, but which puts people with a particular characteristic at a disadvantage when compared to others to whom the PCP applies. There is a defence available to employers that the PCP is a proportionate means of achieving a legitimate aim ("objective justification"). Facts In Essop, the claimants were all employed by the Home Office. They were required to pass a Core Skills Assessment test in order to apply for promotion. A report revealed that Black and Minority Ethnic (BME) candidates and candidates over 35 were statistically less likely to pass the test, but there was no reason proposed as to why this should be the case. The ET originally determined that the claimants had to show that the reason for the disparate impact of the testing process was something peculiar to the relevant protected characteristics of race/age. The Court of Appeal upheld that decision. In Naeem, the claimant was an imam working as a chaplain in the Prison Service and, because Christian chaplains had been salaried employees for longer than Muslim chaplains, their average pay was higher than Muslim chaplains. Naeem brought proceedings claiming the incremental pay scheme indirectly discriminated against Muslim chaplains. The Court of Appeal rejected the claim on the basis that it had to be shown that the reason for the disparate impact of the length of service criterion was something peculiar to the relevant protected characteristic of religion. Decision The Supreme Court has now addressed the question of whether reasons need to be provided to establish discrimination in relation to disparate impact. It determined that "in none of the various definitions of indirect discrimination is there any express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others". Furthermore, the PCP need not put every member of the group at a disadvantage. Essop's appeal was allowed on this basis. In Naeem, the Supreme Court went on to consider the objective justification defence. It determined that no court is able to change factual findings of an ET, only errors of law. The ET had found, as fact that the disadvantage suffered by Naeem (i.e. that it would take six years to be rewarded at the top of the pay scale) was no more than necessary to transition to the new pay scale. The PCP was therefore objectively justifiable and Naeem's appeal was dismissed. The Essop case has been remitted back to the ET. Action points/comments:

This case reinforces that there is no need to evidence the "reason why" there is disadvantage caused by a PCP. It is enough that an individual with a protected characteristic (and the group with that protected characteristic) is disadvantaged. Back

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REDUNDANCY 2. No lesser standard of fairness when "selecting in" in redundancy context

Green v London Borough of Barking & Dagenham Summary Ms Green (G) had been employed by the London Borough of Barking & Dagenham (Council) until she was dismissed on the grounds of redundancy in August 2014, following a selection process. She claimed automatically unfair dismissal and unfair dismissal at ET, but her claims were dismissed. G appealed to the EAT. Facts G had been employed by the Council for six years, working in a team of three people all doing very similar roles. A fourth person worked in a similar role in a different team, but at a lower grade. G was a member of, and a steward for, Unison. In October 2012, the Council started a restructure process which would result in redundancies. Within G's team, it was proposed to delete the three roles and create two new posts, for which there would be a competitive process comprising an unseen written test and an interview. The lower grade role was removed and the incumbent employee was assimilated into a higher grade role as there was a high match between the previous and the new roles. G did not appeal this decision at the time. Then, the three candidates for the two roles undertook a selection process, with G scoring lowest out of the three in both interview and written test. The written test was based on a real life example of work that one of the other applicants had worked on, thus giving her prior knowledge. However, the Council had determined that this was not a detriment to G, as no knowledge of the area was required. G was not offered one of the two roles. As her interview and assessment had occurred after the other similar role had been filled, she was out of time to appeal that she had not been considered for that role. G appealed against the redundancy, but the Council took the view that this was "not a redundancy selection but an assimilation process" and therefore there was no right of appeal. G brought claims to the ET that she had been automatically unfairly dismissed under section 152 of the Trade Union Labour Relations (Consolidation) Act 1992 (TULRCA), contending that she had been selected for redundancy on the grounds of her union activity, and also for unfair dismissal under section 98(4) of the Employment Rights Act 1996 (ERA). The ET dismissed both the claims. It accepted that her dismissal was by reason of redundancy and not her trade union activities, and therefore the automatically unfair claim was dismissed. It also determined that, in terms of fairness, it should not follow the guidance laid down in Williams v Compair Maxam Ltd as "those principles did not apply because the question was not why the Claimant had been selected for redundancy as much as why she had not been appointed to one of the remaining positions". It instead followed Morgan v Welsh Rugby Union as if that case had been a proposition of law. G appealed to the EAT on the grounds that the ET had misdirected itself as to applicable law; that its decision was inadequately reasoned; and that the ET failed to consider it as a redundancy case, instead approaching it as a reorganisation and appointment to a new post. G contended that the ET should not have elevated Morgan to a point of law, and by doing so, it lost sight of the need to apply the statutory test of fairness in s98(4) ERA. G also argued that the ET erred in considering that the consultation with unions and individuals was adequate and that the process was fair, particularly when considering the prior knowledge on the subject of the written test by one of the applicants. Decision The EAT allowed the appeal in part. It dismissed the claim on automatic unfairness as, although the reasoning was not explicit, it was implied that she was dismissed for reasons of redundancy and that the dismissal was not related to her trade union activities. However, when considering fairness, the EAT upheld G's appeal. The ET had decided it did not need to determine fairness on the Williams lines, as this was not, in its opinion, a traditional

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redundancy selection case. It expressly stated it was following Morgan. In doing so, the EAT determined that the ET looked to Morgan "as providing the solution to the case as if it laid down a rule of law" whereas in fact Morgan makes it clear that a court should be directed back to s98(4) ERA "unvarnished". The ET should have been asking itself whether the Council had acted within the range of reasonable responses, keeping in mind the principles of s98(4) at all times. The ET had failed to address a number of questions which arise under s98(4), such as composition of the selection pool and the right of appeal. The case was remitted back to a fresh ET. Action points/comments:

The principles in Williams are to: o seek to give as much warning as possible of impending redundancies; o consult the union and seek to agree the criteria to be applied in selecting

employees; o seek to establish criteria which so far as possible do not depend solely on the

opinion of the person making the selection but which can be objectively checked; and

o seek to ensure the selection is made fairly with these criteria and consider any representations the union make as to such selection.

The Morgan case was based upon appointment to new roles following a restructure from a pool of existing employees, and the criteria must reflect a known job performed by known employees over a period. In this case, the redundancy arose from a much wider collective redundancy situation, unlike in Morgan. However, Morgan also stated that the ET must apply s98(4) ERA to this question. The ET in this case failed to do so.

Applying s98(4) requires the ET "not to stand itself in the shoes of the employer but to test the employer's decision at each stage of the process against the range of reasonable responses open to a reasonable employer in the particular circumstances of the case"

The EAT also commented that the ET's reasons in this case did not follow a clear structure, leading to clear conclusions. Back

DISABILITY DISCRIMINATION 3. Requirement to sit a multiple choice test amounted to a failure to make reasonable adjustments and discriminatory treatment.

Government Legal Service v Brookes Summary Ms Brookes has Asperger's Syndrome and was denied a different form of testing as a reasonable adjustment for an application process for the Government Legal Service (GLS). She claimed indirect discrimination, discrimination arising from disability and failure to make reasonable adjustments at ET. The ET found her in favour; GLS appealed. Facts Ms Brookes (B) has Asperger's Syndrome. She applied to GLS for a training contract, and was required to sit an online situational judgment multiple choice test (SJT) as the first stage. B had contacted GLS in June 2015 in advance of the application process opening to let them know reasonable adjustments would be required due to her disability, requesting that she be able to answer the test with short form answers as her Asperger's meant that she "lacked social imagination and would have difficulty in imaginative and counter-factual reasoning in hypothetical scenarios". She was told on 30 June that taking the test in an alternative format was not allowed, but time allowances and some other adjustments were. The application process opened on 1 July 2015, and B contacted GLS again on 28 and 29 July expressing concern about the SJT. She took the test, and failed with a mark of 12 out of 22 (the pass mark was 14).

B brought a claim to the ET of indirect discrimination, discrimination arising from disability, and failure to make reasonable adjustments. The ET decided that there was a Provision, Criteria or Practice (PCP) in the requirement to sit and pass an online SJT, and that this placed B at a substantial disadvantage compared with a person who is not disabled. The ET also found that, although the PCP had a legitimate aim (testing a competency required of lawyers to make

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effective decisions), the means of achieving it were not proportionate, as GLS could have accepted B's proposal to answer the questions in a different way. Her complaint of indirect discrimination succeeded, as did her other claims. GLS appealed to the EAT.

Decision The EAT dismissed the appeal. It commented that the ET's reasoning was "impeccable and beyond reproach". Although it acknowledged the expert view that "some people with autism may perform such tests well, on account of typical logical thinking", some people with Autistic Spectrum Disorder or Asperger's Syndrome would not, and B was one of these people. Just because others with similar disabilities had not requested the reasonable adjustment did not mean that B was not personally disadvantaged. The decision - that GLS should pay compensation and a recommendation that it write a letter of apology and review its procedures for those with a disability to allow greater flexibility in psychometric testing - was upheld. Action points/comments:

As we always say, careful consideration of adjustments is required. While not all will be reasonable, an assessment process is required to establish this. Back

MATERNITY DISCRIMINATION 4. Is the application of a general policy unfavourable treatment due to maternity leave? Interserve FM v Tuleikyte Summary Ms Tuleikyte (T) worked for Interserve FM Limited (I), and started maternity leave in June 2013. Her wages were too low to qualify for statutory maternity pay (SMP) and as a result of I's policy that those absent for three months without pay were considered to have left the business, she was incorrectly marked as a leaver in October 2013. She claimed for maternity discrimination at ET, and the court found there had been a single act of discrimination. I appealed to the EAT. Facts T commenced maternity leave from I on 17 June 2013, but due to her low earnings from the employment, she did not qualify for SMP. A new manager took over her team while T was on maternity leave, and he subsequently marked her as having left I's employment on 14 June 2013, as I had a policy that any person who is absent and without pay for three months would be deemed to have left employment. When T received her P45, she phoned to discuss the issue, and was told that it would be sorted out in a return to work meeting. At this meeting, new hours could not be agreed and T decided not to return to work. The mistake was therefore not corrected. T claimed for maternity discrimination under s18 Equality Act (EqA). To be unlawful under s18, the unfavourable treatment must be because the Claimant was exercising, or seeking to exercise, the right to maternity leave. The ET found that a single act of discrimination had occurred when T had been marked as a leaver in October 2013. Decision The EAT agreed that I's actions in deleting T from the employment lists was unfavourable treatment, and also that this was as a result of the blanket policy which treated all employees who have been absent from work and without pay for three months as a leaver. The EAT disagreed with the ET's assessment of whether this treatment was 'because of' her maternity leave. What were the reasons or grounds for the treatment? There are two approaches taken by courts in these decisions, one is the "criterion" approach, and one is the "reasons why" approach. In criterion cases, "where the criteria is inherently based on or indissociably linked to the protected characteristic, it or its application constitutes the reasons or grounds for the treatment complained of, and there is no need to look further". The ET held that this was a criterion case, as although the policy is a blanket policy, if it is applied to women absent on maternity leave it is unfavourable treatment. The EAT disagreed. The policy had two separate criteria, that a person has to be absent for three months and has to be without pay for three months to be marked as a leaver. The two parts must be considered cumulatively as part of a single policy. The policy is, on the face of it, neutral and not directed at a particular group, although it may have a particularly disadvantageous effect on women. The

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ET was wrong to conclude that the claim fell in the "criterion" category. "This is not a case where the Respondent applied the unfavourable treatment because of a blanket policy or criterion that was inherently based on or necessarily linked to pregnancy or maternity." The EAT held that if that was the case, all women on maternity leave would have their names deleted, and the policy would not apply to others absent for reasons other than maternity leave. If T's absence on maternity leave formed part of the reasons or grounds for her having her name deleted, then it is a "reasons why" case, and the ET should have considered the mental processes of the discriminator. The case was remitted back to the same ET. Action points/comments:

The approach taken under s18 of the EqA should be the same as taken in a s13 direct discrimination case, it must first be determined whether it was due to an inherently discriminatory criterion, and if it is not, the court must look at the reasons why the decision was taken. Back

"NICE TO KNOW" SOME OTHER SUBSTANTIAL REASON 5. Is it fair to dismiss a nurse with a legal right to work if concerns remain over true identity? Ssekisonge v Barts NHS Health Trust Mrs Ssekisonge (S) is a nurse, and was employed by Barts NHS Health Trust (Trust) from 7 March 2011. She came from abroad, and had been given indefinite leave to remain in the UK and granted citizenship. The Home Office raised concerns about her identity in 2007, before her employment with the Trust, alleging she had a different origin, name and date of birth. In 2013, the Home Office revoked her right to citizenship due to her identity (although she retained indefinite leave to remain). S did not inform the Trust, although she was required to. In 2014, the Disclosure and Barring service (DBS) informed the Trust that S's DBS certificate had been revoked, leading the Trust to suspend her. Following an investigation by the Trust's Counter Fraud team, there was a disciplinary meeting and S was dismissed as her identity could not be verified. Her appeal failed, and S brought a claim to the ET. The ET found that S had been dismissed for some other substantial reason (SOSR) and the dismissal was within the band of reasonable responses in the circumstances. S appealed. The EAT determined that although the ET had not separated out the two stages of analysis required under the ERA - by determining whether the reason justified dismissal and then considering reasonableness - it had considered them. As S was a nurse there were reasonable grounds on which to base concerns about her true identity. The ET did not fall into legal error. It was a sad case, but the ET was entitled to find that there had been a detailed investigation, and that the Trust had a right to consider the importance of her being able to verify her identity. The Home Office refused to do so, and therefore the Trust could take this into account. It accepted a different employer may have made a different decision, but there is a risk with employing a nurse whose identity could not be verified. The appeal was dismissed. Comment The EAT stated that the position may well have been different had S been an office worker or worked in retail, for example. As a nurse, the Trust had to be able to complete thorough checks and verify her identity. S has been refused leave to appeal to the Court of Appeal. Back

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DISCRIMINATION 6. Forced retirement under regulation A19 of the Police Pensions Regulations 1987 is not discrimination Harrod and others v Chief Constable West Midlands Police and others This class action against five separate police forces concerned the compulsory retirement of police officers who had reached 30 years of service, and qualified for a pension of two thirds average pensionable pay (APP). Under regulation A19 of the Police Pensions Regulations 1987 (regulations), forces are able to require the retirement of such officers if it is in the "general interests of efficiency". The majority of officers reaching 30 years service retire voluntarily; this case relates to those who did not wish to, but were required to under the regulation. Following the comprehensive spending review in 2010, police forces were required to cut 20% from their budgets over four years. This cut could not be met by reducing estate, vehicles or civilian staff numbers alone, and therefore a reduction in police officer numbers was required. The forces in question relied on reg. A19 to force retirement on anyone who met the criteria of 30 years service and the requisite APP. The claimants took the case to ET, claiming indirect discrimination. The ET found that there was a PCP requiring officers to retire after 30 years service, and that this was not a proportionate means of achieving a legitimate aim, as the forces could have considered alternative methods (offering part time work, career breaks, and asking if they were planning to leave). On appeal, the EAT allowed the appeal and dismissed the claims. The case was referred to the Court of Appeal. The Court of Appeal dismissed the appeal. The ET should not have looked at an alternative scheme for saving money. The method of selection of officers of over 30 years service was lawful, as under the regulations selecting anyone with fewer than 30 years service would be unlawful. The actions of the police forces in question were legitimate. The PCP of reducing headcount by using the power under reg. A19 had to be justified, and the method had to be a proportionate means of achieving a legitimate aim. The aim was "maximum practical reduction in ... numbers of officers" and there was no other legal way to reduce numbers on a mass basis. Comment: In his assenting comment, Lord Justice Elias also noted that the ET had erred as there is no assumption that an employer should be obliged to minimise dismissals and take reasonable steps to avoid them, stating "…there is no general legal obligation to that effect. It is not the job of Tribunals to question management decisions in that way, and they are not equipped to do so." Back APPRENTICESHIP 7. Compensation awarded where an apprenticeship is ended early due to redundancy Kinnear v Marley Eternit Ltd t/a Marley Contract Services

Mr Kinnear was an apprentice roof tiler with an apprenticeship due to run until November 2018. He successfully completed his initial six month period, and received a contract signed on 17 October 2014 for a fixed period of four years. In June 2016 he was made redundant on the basis that there had been a downturn in the industry. He attempted to find work, but the job vacancy situation was poor, in particular there were no vacancies for apprentices. He made a claim to the ET for breach of contract and was awarded £25,000 (the maximum that could be awarded for such a claim at ET). He had 122 weeks of his apprenticeship left to run. The ET also acknowledged that the lack of a qualification might disadvantage him in the future. Comment: This is a reminder of the additional protections which can apply to apprentices. Getting the contract right (and the correct apprenticeship model) is important. For more information on the apprenticeship levy and the types of apprenticeship agreement, please see the recording of the webinar delivered by Pinsent Masons Employment Team in March. Back

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NATIONAL MINIMUM WAGE / SLEEPING IN 8. Appeals decided on whether National Minimum Wage (NMW) is payable when sleeping in Focus Care Industry v Roberts; Frudd v The Partington Group; Royal Mencap Society v Tomlinson-Blake These three appeals to the EAT were considered together, due to the similar nature of the claims. Focus Care Industry v Roberts - Focus Care Agency (F) provides supported living services, and provides two members of staff – a waking night worker and a sleep-in night worker. The sleep-in night worker is not obliged to be awake, but assists with any emergency that may arise. Mr Roberts (R) was told at his interview that the sleep-in rate was £25 per night. However, his contract stated that any overtime pay would be at £7.15 per hour. There was nothing in any contractual documentation which stated that the waking and sleeping workers would be paid any differently. Although Focus contended that the £25 per night sleep-in fee would have been discussed at interview, the later written contract specifically superseded any prior oral contract, and made no mention of a sleep-in rate, only an hourly rate and an overtime rate. The ET expressly found that R was unaware of his rights to be paid in accordance with the contractual rate until his employment had ended. There was no agreed variation, and R did not waive any breach. The ET concluded that R was entitled to be paid at contractual rate. The EAT dismissed Focus Care Agency’s appeal, but did comment that they did not have to address the ground of appeal in relation to NMW, grounds 1 and 2 (on the contract) having succeeded. If it had, it commented that it would not have been able to uphold any conclusion on NMW as the multifactorial evaluation necessary had not been evidenced. Frudd v The Partington Group - Mr and Mrs Frudd (F) were a joint receptionist/warden team at a caravan park, and were required to stay on site as part of their contract. They were provided with a caravan to stay in. They were on call during the night on a repeating pattern, and would receive a fee of £8.50 per person per call out if required to attend a caravan. The ET dismissed their claim for NMW under the exception in rule 32(1) ‘unless the worker is at home’. The ET determined that unless they were actually out on a call, they fell under the exception, and therefore no NMW was required. The EAT found that the ET had not identified particular factors as to the nature of the contract, whether they were obliged to stay at the caravan site throughout their shift and the nature of their responsibilities while sleeping in. The EAT allowed the appeal and remitted the case to a fresh ET. Royal Mencap Society v Tomlinson-Blake - Ms Tomlinson-Blake (T) was required to sleep-in at a house caring for two men with substantial learning difficulties, and was paid a rate of £29.05 for the night. She was obliged to remain in the house on shift, and to keep a ‘listening-ear’ in case her support was needed. The need to intervene during the night shift was "real but infrequent" occurring six times in the previous 16 months. T claimed that she worked simply by being present in the house and the ET accepted this. Mencap had a regulatory obligation to have someone on the premises and T had to determine whether to intervene in issues using her professional judgment. The ET undertook a ‘multifactorial evaluation’ to decide whether she was doing time work, and concluded she was. The EAT dismissed Mencap’s appeal. There was no error of law. Comment: The court determined that a multifactorial evaluation is required when determining whether NMW is payable on sleeping in. No single factor is determinative and the relevance and weight of particular factors will vary with and depend on the context and circumstances of the particular case. The factors (from paragraph 44 of the judgment) are:

The employer’s particular purpose in engaging the worker may be relevant to the extent that it informs what the worker might be expected or required to do: for example, if the employer is subject to a regulatory or contractual requirement to have someone present during the particular period the worker is engaged to be present, that might indicate whether and the extent to which the worker is working by simply being present;

The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer may be relevant. This may include

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considering the extent to which the worker is required to remain on the premises throughout the shift on pain of discipline if he or she slips away to do something else;

The degree of responsibility undertaken by the worker may be relevant;

The immediacy of the requirement to provide services if something untoward occurs or an emergency arises may also be relevant. In this regard, it may be relevant to determine whether the worker is the person who decides whether to intervene and then intervenes when necessary, or whether the worker is woken as and when needed by another worker with immediate responsibility for intervening. Back

REPRESENTATION 9. £2 compensation for an employee denied his choice of representative Gnahoua v Abellio London Mr Gnahoua (G) was a bus driver at Abellio London Ltd (A). He was dismissed for gross misconduct at a disciplinary hearing on 31 July 2015, following allegations of using an iPad while moving a vehicle. A has a zero tolerance policy on the use of electronic devices at the wheel, and the outcome is dismissal. G was represented at the disciplinary hearing by a member of the Unite union. He had also joined the PTSC union shortly before his disciplinary, and on submitting an appeal, decided he would be accompanied by a representative of the PTSC. A had a policy that two members of the PTSC, who G wished to accompany him, were banned from representation at Abellio disciplinary or grievance meetings. The two were brothers - one was a previous employee, dismissed for harassment and intimidation who was later represented at ET by his brother, where the judge awarded costs of £10,000 against them after striking out the claim for vexatious conduct due to the falsification of a date on a witness statement in which "the brothers must have been complicit". A confirmed they were happy for G to be represented by the union, but not by either of the two brothers. G wished to have one of the brothers as a representative, and the issue remained unresolved, culminating with G attending the appeal hearing unaccompanied. The appeal hearing, conducted in a "considerate and thorough fashion" confirmed the dismissal. G made claims to the ET, most of which were dismissed as out of time or because they had no reasonable prospect of success. This left a claim for breach of section 10(2)(a) and 12(1) of the Employment Rights Act (ERA) 1999, relating to G's right to be accompanied at his appeal hearing. The ERA gives an employee rights to be accompanied by anyone they choose, if they fall within the prescribed list, and a union representative is covered by this. The ET was bound to follow the case of Toal v BG Oils Limited, which concerned a very similar situation. The ET concluded that A had breached G's right to be accompanied by his chosen union official, and that this is an "unfettered right to choose". However, the ET could not criticise the actions of A. It determined that although the breach occurred, there was no loss or detriment to G, and therefore nominal compensation of £2 was granted. Back UNFAIR DISMISSAL 10. Allegations of gross misconduct do not need to be specifically categorised Adeshina v St George's University Hospital NHS Foundation Trust Ms Adeshina (A) a pharmacist, was working in HM Prison Service, employed by St George's University Hospital NHS Foundation Trust (the Trust). She was involved with a project to re-organise the pharmacy services at Wandsworth Prison, but did not agree with the process, and obstructed it. The Trust invited her to a disciplinary meeting due to her unprofessional behaviour and attitude. A was dismissed for gross misconduct, and appealed. The appeal process took a considerable amount of time, but the decision was upheld. A claimed at ET for unfair dismissal, wrongful dismissal and racial discrimination. The ET found that although there had been flaws in the original disciplinary process, these had been rectified by the appeal process, and the dismissal was fair. The EAT agreed.

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A appealed to the Court of Appeal, on the grounds that the misconduct found against her was incapable of justifying dismissal, and that it was "an essential requirement of fairness that the nature of the complaint be spelt out". The Court of Appeal dismissed this. A had full information of her alleged misconduct from the Trust, and there was no requirement for final categorisation to give her the opportunity to meet the case against her. A also submitted that it was "inherently unfair for more serious findings to be made by way of appeal than had been made by the original decision maker". The Court of Appeal again dismissed this argument. Although the initial decision maker had used "milder language" than the appeal panel, the same allegations were proved. Even if the appeal panel had found more serious misconduct than the disciplinary panel, the Court commented that this would not necessarily make the dismissal unfair. The appeal was dismissed. Comment: this is a long running case, which we initially covered in August 2015. The Court of Appeal has confirmed that there is no need for specific characterisation of each allegation against a type of gross misconduct if the case is understood. It also confirmed that it would not be necessarily unfair for an appeal panel to find more serious misconduct. Back UNFAIR DISMISSAL 11. Is it reasonable to dismiss for gross misconduct if witnesses were not interviewed? Moncrieffe v London Underground Mr Moncrieffe (M) was dismissed after claiming a wallet found in a London Underground train belonged to him, despite another driver having lost a wallet in the train earlier. An investigation found that he had falsely claimed the wallet was his, and he was summarily dismissed. M claimed for unfair dismissal at ET, and was subject to a criminal charge, (He was subsequently acquitted.). There were discrepancies in how the wallet was described, and what the contents were, and two possible witnesses were not interviewed, but nonetheless the ET determined that the investigation had been conducted reasonably. The unfair dismissal claim was dismissed. M appealed to the EAT, claiming that the allegations were serious and had grave consequences for his future employment, and that therefore there needed to be clear evidence from the investigation. He submitted that the ET had erred in concluding the investigation had been reasonable when two potential witnesses had not been interviewed. The EAT dismissed the appeal. The ET had not erred in concluding the investigation was reasonable. The judge agreed that the allegations were serious, commenting "I do not understand why any distinction should be made between a pharmacist or a man who repairs trains. A finding of gross misconduct is a serious matter and a serious impediment to the future of any working man or woman." There should be no heightened test for professional people, and any ET must look very carefully at the investigation. However, although witnesses were not interviewed, the EAT commented that "there is a limit to what is reasonable" and that not investigating further did not mean the review was not reasonable. Back SHARED PARENTAL PAY 12. Police force policy of paying statutory minimum shared parental pay is not discriminatory Hextall v Chief Constable of Leicestershire Police This "bold and ingenious" claim was an attempt to gain male police officers a right to an enhanced rate of shared parental pay (ShPP). Mr Hextall (H) made claims asserting that he had suffered direct and indirect sex discrimination, and making an equal pay claim under the EqA. Women in the police are offered an enhanced rate of maternity pay, which is higher than the statutory rate of ShPP. H selected a comparator for direct discrimination, a police constable who had recently given birth and was on enhanced maternity pay. The ET held that this comparator was in a materially

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different position, and a more valid comparator would be a woman who is receiving ShPP, who is the wife or civil partner of a woman who has given birth. This comparator would have been treated in an identical manner. In addition, the EqA allows in s13(6)(b) that "where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth". The direct discrimination claim failed. The ET also found that the suggested PCP, that is paying only the statutory rate of pay for those taking a period of shared parental leave, failed as it did not cause particular disadvantage to men. The equal pay claim failed due to s13(6)(b) above, but also because a claim would require a woman to have a corresponding clause in her contract which is more favourable than the claimants. Here, the contracts are identical. Comment: The ET did comment that if the indirect discrimination claim had been valid, the PCP would have been difficult to justify, as it appeared to come down to costs. "An employer cannot be heard to say "we can't afford not to discriminate". Back UNLAWFUL DEDUCTIONS 13. Can an ET determine issues relating to the construction of a contract? Weatherilt v Cathay Pacific The EAT clarified that an ET is entitled to determine issues relating to the construction of the contract or the implication of any term of the contract, a decision that did not follow the recently decided case of Agarwal v Cardiff University, which the EAT confirmed dealt with different provisions of the ERA. Mr Weatherilt (W) is a pilot. Under his conditions of service, he receives a basic salary plus entitlement to "Hourly Duty Pay" (HDP) and "Excess Flying Pay" (EFP). On two days while rostered to undertake flights he became sick and unfit for duty. His sick pay includes his basic salary and overnight allowances, but does not include HDP and EFP. He claimed unlawful deductions from wages. Payment of HDP and EFP are included in Schedule 2 of the Cathay Pacific 2008 Conditions of Service. Sickness allowance is governed by paragraph 27 of the same document. The ET decided that HDP and EFP were not encompassed by the phrase "Salary, allowances and benefits which that Officer would have earned under normal circumstances". (para 27.2(a)) Schedule 2 was intended to govern the extent to which HDP and EFP was paid in all circumstances. The EAT concurred with the ET, and held that the ET is entitled to determine these issues. The appeal was dismissed. Back

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