Employment Bulletin - April 2019

In this issue:

  • A non-discriminatory explanation for an action does not necessarily exclude the possibility of a discrimination claim
  • Long term disability benefits will not cease to be provided by an employer purely because the employee is capable of taking up some kind of paid employment.
  • Should peripatetic teachers engaged by schools be recognised as workers and offered worker protection as opposed to being self-employed?
  • Should an employer suspend Disciplinary Investigations pending the outcome of a police investigation?
  • Adverse Treatment, Constructive Dismissal and Sexual Orientation Discrimination
  • Discrimination arising from disability: employee’s mistaken belief and her disability
A non-discriminatory explanation for an action does not necessarily exclude the possibility of a discrimination claim.

The Court of Appeal (‘CA’) in the recent case of Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust has ruled that a discrimination claim could be made out even where the respondent’s explanation for the dismissal was non-discriminatory.

The decision has confirmed that each case will ultimately turn on its individual facts and, although there may be cases where the Employment Tribunal (‘ET’) finds a “complete explanation” for the acts complained of which are innocent in the sense that they are untainted by racial considerations, this was not the case on this occasion

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Long term disability benefits will not cease to be provided by an employer purely because the employee is capable of taking up some kind of paid employment.

An Employment Appeal Tribunal (‘EAT’), in the case of ICTS Limited v Visram has ruled that where an employee is entitled to receive disability benefits until his “return to work”, the benefits shall continue until he could return to the same job with the employer.

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Should peripatetic teachers engaged by schools be recognised as workers and offered worker protection as opposed to being self-employed?

The ruling of a recent preliminary hearing, Scott v Chigwell School, could affect the employment rights of thousands of peripatetic teachers across the UK.

The Employment Tribunal (‘ET’) has ruled that, in her work as a Visiting Music Teacher, Mrs Scott:

  • Was not an employee within the meaning of s.230(1) Employment Rights Act 1996;
  • Was a worker within the meaning of s.230(b) Employment Rights Act 1996;
  • Was an employee within the meaning of s.83 Equality Act 2010

However, in her work with ensembles and other ad hoc work, including performances and chaperoning, Mrs Scott was neither an employee, nor a worker and nor an employee in the extended sense under the Equality Act 2010.

This development means that as a Visiting Music Teacher, Mrs Scott is afforded certain rights and protections such as holiday pay, national minimum wage, whistleblower protections and protection from discrimination under the Equality Act 2010.

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Disciplinary Investigations pending the outcome of a police investigation

In the case of North West Anglia NHS Foundation Trust v Gregg, the Court of Appeal considered the question of whether an employer must postpone a disciplinary hearing pending the outcome of a police investigation. The conclusion in this case was no, there was no requirement to postpone.

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Adverse Treatment, Constructive Dismissal and Sexual Orientation Discrimination

Was adverse treatment of a gay head teacher constructive dismissal and sexual orientation discrimination? Yes, held the EAT in Tywyn Primary School v Maplin.

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Discrimination arising from disability: employee’s mistaken belief and her disability

In iForce Ltd v Wood the EAT held that a disabled employee’s mistaken belief that moving workstations would exacerbate her osteoarthritis, which led her to refuse to obey an instruction resulting in a written warning, did not establish unfavourable treatment because of something arising from a disability under section 15 of the Equality Act 2010.

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The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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