Our legal team has compiled a rundown of employment law cases – including the background and decisions made – that HR and employee relations professionals should be aware of.

Approaching mitigation of loss in unfair dismissal cases

Edwards v Tavistock and Portman NHS Trust

Background: When an employee wins an unfair dismissal case at the Employment Tribunal, the compensation awarded usually includes loss of earnings resulting from the dismissal. However, the Tribunal may reduce the amount of compensation if the employee has not made reasonable efforts to mitigate their loss of earnings by finding alternative employment, such as actively applying for suitable jobs and attending interviews.

Facts: The Employment Tribunal in Edwards v Tavistock and Portman NHS Trust decided that Mr Edwards had failed to mitigate his loss of earnings and applied a percentage reduction to Mr Edwards’s compensatory award to reflect this.

On appeal: The EAT found that the Employment Tribunal had been wrong to do this and confirmed that the Tribunal should have identified what steps Mr Edwards should have taken to mitigate his losses; any by failing to determine the date on which those steps would have led to a new job and, thereafter, to reduce the amount of compensation by the amount which would have been earned.  The EAT confirmed that it is the employer’s burden to demonstrate that the employee has failed to take reasonable steps to mitigate their loss.

Comment: This case serves as a helpful reminder to employers. The concept of mitigation of loss can often by overlooked when a claim is first received. However, it is an area which the employer can tactically use as part of settlement negotiations by considering where an ex-employee has failed to mitigate their loss. It can also reduce the award made if the case is lost.

Practical Tips for HR: As soon as an employee brings a claim, the employer should gather evidence of the job market in the relevant sector (as this information is not always easy to secure retrospectively). Recruitment consultants can be contacted and lists of vacancies obtained. This information can then be used in settlement discussions with ACAS (especially if the employee is claiming that they are struggling to find work and are going to have on-going loss of earnings) and, ultimately, if a finding of unfair dismissal is made, as part of a submission to demonstrate that the employee has failed to take reasonable steps to mitigate their loss. Being able to point to vacancies which the employee failed to apply for will help the Tribunal in its consideration of what steps were reasonable for the employee not to have taken. This can help employers limit the amount of compensation owed to employees.

How to judge whether misconduct ‘arises from a disability’

McQueen v The General Optical Council

Summary: A recent EAT decision helps employers struggling with how to assess whether behaviour ‘arises in consequence of a disability’.  It makes clear that distinctions can be drawn between behaviour arising from a disability and misconduct.

Background: Under section 15 Equality Act 2010, ‘discrimination arising from a disability’ occurs where an employer treats a candidate or employee ‘unfavourably’ because of something arising in consequence of a disability and the employer is not able to objectively justify that treatment.

This form of discrimination recognises that it is often the knock-on effect of a person’s disability which leads to problems in an employment context, rather than the disability itself.

As an employer, it is not always easy to know what behaviour ‘arises from’ a disability. The words ‘arises from’ a disability’ have been described by the Employment Appeal Tribunal themselves as ‘deliciously vague’ (Land Registry v Houghton, 2014).

Facts: In McQueen v The General Optical Council, Mr McQueen was employed as a registration officer. He suffered from dyslexia, Asperger’s syndrome, neurodiversity and hearing loss. He was disciplined for a pattern of aggressive behaviour at work.

Mr McQueen brought a claim against his employer alleging that he had been treated unfavourably for this aggressive behaviour, which he claimed arose from his disabilities. The medical evidence stated that his disabilities meant that he was more likely to lose control when stressed. Despite this, the employment tribunal decided that the aggressive behaviour which led to the alleged unfair treatment was not something which arose from Mr McQueen’s disabilities at all. 

Held: The EAT agreed that this assessment could stand. It noted that the test of whether behaviour ‘arises from’ a disability is a wide one and does not require the disability to be the sole or main reason for the behaviour. It found that there was no need for the ET to look at multiple factors contributing to the behaviour in this case as they had concluded that the disabilities had no impact on the behaviour – so did not ‘arise’ from them at all.

Comment: There are some useful points which can be taken away from this case:

• Employers do not have to accept an employee’s self-assessment of their impairment and what arises from it. Obtaining occupational health support can provide a more objective view.
• It will not always be possible to reach a clear-cut conclusion that behaviour does not ‘arise’ from a mental impairment. It does not have to be the only reason for the behaviour in order to ‘arise’ from it. Exercise caution where the position is unclear.
• Employers will not necessarily be liable even if they treat an employee unfavourably for something arising from a disability provided they can show the treatment was a ‘proportionate means of achieving a legitimate aim’. This is an important caveat, especially in cases where it is unclear whether the conduct ‘arises from’ a disability.

Drafting settlement agreements

Meaker v Cyxtera Technology UK

Summary: A recent Employment Appeal Tribunal decision highlights the importance of careful drafting when making offers of settlement to an employee.

Facts: In Meaker v Cyxtera Technology UK, Mr Meaker’s employer sent him a letter on 5 February 2020 which was marked ‘without prejudice’. The letter said there would be a mutual termination of Mr Meaker’s employment on 7 February 2020 but did not make the termination subject to contract. No agreement had actually been reached with Mr Meaker. The letter went on to make an offer of an ex gratia payment to the employee if he signed a settlement agreement. Mr Meaker did not sign the settlement agreement.

Held: The Employment Appeal Tribunal held that this letter was a dismissal letter and that the employee’s employment ended on 7 February. The fact that the employee did not sign the settlement agreement did not change this. 

Comment: This case is a reminder to employers of the need for careful drafting when making offers of settlement to an employee. Be explicit that the full offer (including termination of employment) is conditional upon signing of the agreement. Without this, a dismissal would undoubtedly be considered unfair if a former employee brought subsequent tribunal proceedings against the company. If employers draft offers which are conditional upon the signing of a settlement agreement, then, if the offer is not taken up, the employer still has the possibility of dealing with dismissal openly (and fairly).

Ironically, in this case, something which was obviously an error on the part of the employer actually assisted their case, as an effective date of termination of 7 February meant that the employee’s unfair dismissal claim was out of time.

Less favourable treatment of part-time workers

Ministry of Justice v Dodds

Facts: The claimants in the Employment Tribunal had been chosen as representatives of judges at various levels who had brought similar claims. Each of the claimants occasionally sat as judges at a higher level than their usual position (known as ‘sitting up’). For example, circuit judges were asked to ‘sit-up’ as high court judges on occasion. They claimed that, when sitting up, they were part-time workers and should not be treated less favourably in terms of pay than comparable full-time judges in the higher court. Their pay was lower than that for full-time judges in the higher court and they didn’t get a pro-rata uplift for the time they spent ‘sitting up’. The ET found in their favour.

Held: However, the Employment Appeal Tribunal disagreed with these findings. In particular, the EAT did not agree that the judges were part-time workers in the roles which they were asked to ‘sit-up’ in in higher courts. They therefore could not claim less favourable treatment as part-time workers and compare their rate of pay whilst ‘sitting up’ with that of permanent full-time judges in the higher court. Crucially, the EAT considered that acting-up in a higher court on occasion was not a distinct employment which could be looked at separately from their main role.

Comment: If a different decision had been made, this could have had far-reaching consequences for all employers with employees whose role may, on occasion, involve them acting up in a higher (and better paid) position. Employers would be faced with either: having to increase the pay of such persons every time they temporarily took on some more senior duties, or avoiding them having to act-up at all (something which could make life very difficult practically speaking). Therefore this appears to have been a sensible decision based on its potential ramifications.