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Print articleQuarterly Case Law Update - January 2023
January, 2023 - Shoosmiths LLP
Redundancy pool
Deciding on which employees to include in a redundancy pool is usually straightforward. However, problems can arise, particularly where the pool includes just one person, as the case of Teixeira v Zaika Restaurant Ltd and another demonstrated.
Mr Teixeira worked as one of a team of ten chefs. He was the least experienced and the only non-specialist chef. In April 2020 he was made redundant due to the downturn in work resulting from the pandemic. However, he was given no warning or consultation, and he was the only one of the team of chefs that was selected for redundancy.
Mr Teixeira brought a claim for unfair dismissal, and it was found that his dismissal was procedurally unfair due to the lack of consultation. However, initially the Tribunal held that it was not unreasonable for him to have been placed in a pool of one and that he would have been dismissed had a fair procedure been followed. As such, they reduced his compensation by 100%.
On appeal, the Employment Appeal Tribunal (EAT) decided that being in a pool of one didn’t necessarily mean that dismissal was bound to happen. For instance, some warning and consultation might have resulted in a larger selection pool or have affected how selection for redundancy was made. Even if Mr Teixeira was still made redundant, the date of that redundancy might have been delayed if consultation had taken place. As such, some compensation was due to him and the case was sent back to the Tribunal for further consideration.
This case is an important reminder for employers to follow a fair process when handling redundancies. This applies not just in terms of how a redundancy pool is decided upon, but also in terms of the consultation that is carried out, even where there is just one employee in the pool.
Reasonable adjustments
Another tricky area for employers is the duty to make reasonable adjustments, in particular identifying when that duty arises and what amounts to reasonable, as the case of Hilaire v Luton Borough Council shows.
Mr Hilaire suffered from depression and arthritis. His employer underwent a restructuring process, as part of which he was required to apply and interview for a role. In view of his medical conditions, he was offered extra time and support to complete his application. However, he refused to attend the interview on the basis he was not fit to do so and provided a fit note in support. His employer attempted to clarify when he might be fit to attend, but he did not respond. They therefore set a deadline by which a decision would be made and contacted Mr Hilaire ahead of that deadline. However, Mr Hilaire explained that he was too ill to attend an interview. He was later dismissed by reason of redundancy.
Mr Hilaire brought a reasonable adjustments claim, stating that the requirement to attend an interview placed him at a substantial disadvantage and that it would have been reasonable to adjust the process so that he did not have to interview and was simply slotted into the role. His claim was initially rejected by the Tribunal. On appeal, the EAT considered the reason for his non-attendance at the interview. The EAT concluded that, on the evidence, the non-attendance was not related to his disability but rather because he had lost confidence in his employer and believed that the redundancy process was simply a way to dismiss him. As such the duty to make reasonable adjustments did not arise in relation to the interview process.
In any event, in what will be a helpful conclusion for employers, the EAT observed that whilst slotting Mr Hilaire into the role would have alleviated any disadvantage, it would have affected other potentially redundant employees and was therefore not reasonable even had the duty applied. Employers should be mindful that the duty to make reasonable adjustments is a duty to remove a particular disadvantage, not to give an advantage.
Disciplinary proceedings
Where a previous disciplinary process has been concluded, is it possible for an employer to rely on that previous matter? This was the issue in the case of Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust and others.
Dr Lyfar-Cissé was Associate Director of Transformation in an NHS Trust and her role involved improving race equality and chairing the Trust’s BME network. Following a disciplinary process, the Trust issued her with a final written warning for incidents of bullying and victimising an employee when she sought to interfere with the investigation of that employee’s sexual orientation discrimination complaint and for racial harassment and discrimination against another employee.
The Care Quality Commission also carried out an inspection of the Trust generally and concluded that bullying was rife at the Trust and therefore put another Trust in charge of management. The new Trust’s managing director felt that Dr Lyfar-Cissé was not a fit and proper person to lead on equality issues given the outcome of the previous disciplinary process. As a result, she was invited to a further disciplinary hearing following which she was dismissed on the grounds that her conduct had undermined her ability to perform in the leadership role.
Dr Lyfar-Cissé brought a claim for unfair dismissal arguing that the Trust should not have reopened the disciplinary proceedings once the final written warning had been issued. However, she was unsuccessful at both the original Tribunal and on appeal to the EAT. The EAT noted that an earlier disciplinary outcome can be part of the circumstances to consider when deciding whether a dismissal is fair. Whilst it is unusual to reopen disciplinary proceedings, there may be circumstances where it is appropriate to do so, for example as in this case where new management scrutiny, a heightened risk position and Dr Lyfar-Cissé’s continued refusal to accept any responsibility for the conduct she had been disciplined for all contributed to the fairness of the ultimate decision.
This is a helpful decision for employers. Although it will not always be fair to do so, it is reassuring to see the EAT recognise that there are situations, even if limited, where it is appropriate for an employer to reopen disciplinary proceedings.
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