Employment law

Dependant's leave

Qua v John Ford Morrison (2003) The Times, 6 February

This appears to be the first case in which a right to dependant's leave, provided by section 57A of the Employment Rights Act 1996 as amended, has been considered by the Employment Appeal Tribunal (EAT).

The EAT made several general comments, noting, for example, the following matters:

- The right to take time off does not give employees the right to do more than provide reasonable assistance necessary to deal with the immediate crisis;

- In determining whether action is 'necessary', relevant factors include the nature of the incident which has occurred, the closeness of the relationship between the employee and the particular dependant, and the extent to which anyone else was available to help;

- In determining what is a 'reasonable' amount of time off, an employer should always take account of the employee's individual circumstances;

- However, an employee is not entitled to unlimited time off work, even if in each case there is compliance with the notice requirement and a reasonable amount of time off is taken on each occasion;

- In determining what is a 'reasonable' amount of time off work, the disruption or inconvenience to the employer caused by the employee's absence is irrelevant.

A tribunal dealing with such a case should ask itself the following questions:

- Did the applicant take time off or seek to take time off from work during working hours? If so, on how many occasions, and when?

- If so, on each of those occasions did the applicant as soon as reasonably practicable inform the employer of the reasons for the absence; and inform the employer how long the absence was expected to last; if not, were the circumstances such that the employee could not have informed the employer of the reason until after returning to work?

- If the applicant had complied with those requirements, then the following questions arose: did the employee take, or seek to take, time off work to take action which was necessary to deal with one or more of the five situations listed in the statute? If so, was the amount of time off taken or sought to be taken reasonable in the circumstances?

- If the applicant satisfied the latter two questions, was the reason or principal reason for the applicant's dismissal that the employee had taken, or sought to take, that time off work? If this final question was answered in the affirmative, the applicant was entitled to a finding of automatic unfair dismissal.

Refusal of job offer

Hudson v George Harrison Ltd (2003) The Times, 15 January

The EAT ruled that it would not be appropriate for a tribunal to adopt a test equivalent to the 'band of reasonable responses' test familiar from unfair dismissal cases, when considering whether an offer of alternative employment had been unreasonably refused for the purposes of section 141(2) of the Employment Rights Act 1996.

The proper approach to 'reasonableness' in this context remains that identified in Executors of JF Everest v Cox (1980) ICR 415, so that the employee's conduct was to be judged, looking at it from her point of view, on the basis of the facts as they appeared, or ought reasonably to have appeared to her at the time the decision had to be made.

Pay during notice period

Scotts Company (UK) Ltd v Budd [2003] IRLR 145

Employees who are incapable of work through illness or injury during their notice period are nevertheless entitled to be paid a week's pay for each week of their statutory minimum notice period.

The editor of the IRLR describes this principle as 'well known', although this is perhaps debatable.

But certainly there has been little discussion of section 87(4) of the Employment Rights Act 1996, which provides that the right to payment 'does not apply in relation to a notice given by the employer or the employee if the notice to be given by the employer to terminate the contract must be at least one week more than the notice required by s86(1)'.

The EAT has confirmed that, accordingly, where the employment contract specifies a notice period at least one week in excess of the statutory minimum notice period, liability under the statute to pay during sickness is avoided.

Not surprisingly, the EAT described this as 'odd'.

Disability discrimination

Power v Panasonic UK Ltd [2003] IRLR 153

A tribunal found that an employee failed to show that she was disabled within the meaning of the Disability Discrimination Act 1995 because the depression from which she was suffering was caused by alcohol abuse.

The tribunal relied on regulation 3(1) of the Meaning of Disability Regulations 1996, which provides that addiction to alcohol is not to be treated as an 'impairment' for the purposes of the 1995 Act.

The tribunal considered that this should be given greater weight than the secretary of state's guidance, which provides: 'It is not necessary to consider how an impairment was caused, even if the cause is a consequence of a condition which is excluded.

For example, liver disease as a result of alcohol dependency would count as an impairment.'

The EAT ruled that the tribunal, which commented that the 'core issue' was 'did the applicant become clinically depressed and turn to drink, or did these events lead to alcohol addiction, producing depression?', had erred.

It is not material to a decision as to whether a person has a disability to consider how the impairment which they have was caused.

What is material is to ascertain whether the disability falls within the scope of the Act or whether, where it is relevant, it is an impairment which is excluded by reason of the regulations.

There is no conflict in this respect between the regulations and the guidance on matters to be taken into account in determining questions relating to the definition of disability.

Whistleblowing

Darnton v University of Surrey [2003] IRLR 133

The EAT allowed an appeal against a tribunal's finding that an employee had not made a 'qualifying disclosure' because his allegations were not factually correct.

A 'qualifying disclosure' within section 43B(1) of the Employment Rights Act 1996 means any disclosure of information which in the 'reasonable belief' of the worker making it tends to show a relevant failure.

For there to be a 'qualifying disclosure', it must have been reasonable for the worker to believe that the factual basis of what was disclosed was true and that it tends to show a relevant failure, even if the worker was wrong, but reasonably mistaken.

Protected disclosure

London Borough of Harrow v Knight [2003] IRLR 140

The EAT held that a tribunal was wrong to find that, after he had made a 'protected disclosure', an applicant was unlawfully subjected to a detriment in that his employer's chief executive failed to answer his letters concerning an investigation into his allegations, which contributed to a breakdown in his health.

For liability to be established, the tribunal had to find that the applicant had not only made a protected disclosure, but also that he had suffered some identifiable detriment, that the employers had 'done' an act or omission by which he had been 'subjected to' that detriment and that the act or omission had been done by the employer 'on the ground that' he had made the identified protected disclosure.

The 'ground' on which an employer acted in victimisation cases requires an analysis of the mental processes (conscious or unconscious) which caused him so to act.

It is necessary to show that the fact that the protected disclosure had been made caused or influenced the employer to act (or not to act) in the way complained of.

Merely to show that 'but for' the disclosure, the act or omission would not have occurred is not enough.

The tribunal had not considered the chief executive's mental processes and the case was remitted for reconsideration.

By Martin Edwards, Mace & Jones, Liverpool