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March’s top five employment law cases

1 Apr 2019 By PM Editorial

People Management takes a look at the most read tribunals of last month – from cyber attack accusations to flexible working woes

1. Trainee emergency call operator racially discriminated against during drug investigation 

A trainee emergency call operator was awarded £16,000 after he was racially discriminated against by his former employer during a drug investigation.

Jerry Ogbonna was suspended without pay just five days into his employment with Partnership of East London Cooperatives (PELC) after his employer accused him of consuming and distributing illegal drugs to his colleagues. He had in fact been using off-the-shelf caffeine supplements.

The tribunal ruled that the subsequent investigation did not properly identify what drugs or substances were consumed or by whom, or even ascertain the legality of the drugs in question, and said Ogbonna, who is black, was subject to suspension, investigation and an “unjustifiable disciplinary hearing” in circumstances under which no white comparator would have faced the same.

2. Employee with depression awarded £35,000 after being denied flexible working

An employee with depression was awarded £35,677 after he was denied flexible hours by his employer. The employment tribunal (ET) ruled his employer, the Department for Work and Pensions, had failed to comply with its duty to make reasonable adjustments by not taking into account an employee’s changing circumstances when deciding whether to reinstate flexible working.

Chris Hargreaves, who worked as a case manager from February 2016 until his dismissal in November 2017, was initially taken off flexible hours because he was regularly late but asked to be put back on after his depression worsened. Judge Keevash ruled Hargreaves’ circumstances had “changed considerably” since the initial period of flexible working, as he had been prescribed new medication and started cognitive behavioural therapy treatment.

3. Woman who could not access emails about redundancy while on maternity leave was not discriminated against, rules EAT

A woman on maternity leave was unfavourable treated, but not discriminated against, during a redundancy exercise after her employer sent an important email to an address she could not access, the Employment Appeal Tribunal (EAT) ruled.

Emma Pease, who worked as a health trainer for South West Yorkshire Partnership NHS Foundation Trust, was on maternity leave when she was identified as one of several employees at risk of redundancy. However, as she did not have her work laptop with her while on maternity leave, she did not receive the email notice of potential new job postings that required her to return a form to HR as soon as possible.

The EAT upheld a previous ruling that this amounted to unfavourable treatment by her employer. However, it overruled the initial ET’s verdict that it also amounted to discrimination as, although Pease’s treatment would not have happened if she hadn’t been on maternity leave, the ET had not considered whether her maternity leave was the reason why she was unfairly treated.

4. Railway worker was not entitled to 20-minute breaks, Court of Appeal rules

The Court of Appeal ruled against a railway signal box worker who claimed his inability to take an uninterrupted break at work amounted to a breach of his rights.

David Crawford worked as a signal box worker for Network Rail in Surrey and Sussex. The majority of the boxes were manned by a single person, meaning when working alone he was unable to take a single 20-minute uninterrupted break.

Under Working Time Regulations (WTR) 1998, adult workers are entitled to an uninterrupted rest break of at least 20 minutes after six hours’ work, however individuals working in key services such as transport and utilities are treated as “special cases” where employers need to provide an equivalent period of compensatory rest. 

The EAT had previously found, although Crawford might be able to take shorter breaks on some shifts, he was in effect always on call during daytime shifts in the week, meaning it would not be possible for him to have one continuous 20-minute break. This was overruled by the Court of Appeal, which said there was no reason in principle why a break had to be for an uninterrupted period of 20-minutes.

5. Cinema employee accused of encouraging ‘cyber attack’ was automatically unfairly dismissed, tribunal rules

A customer service assistant who encouraged workers to ‘cyber picket’ her employer’s websites as part of strike action was automatically unfairly dismissed, an employment tribunal ruled. 

Kelly Rogers was dismissed for gross misconduct after she suggested colleagues at Picture House Cinema block-book seats online they did not intend to buy, temporarily preventing them from being sold. However, because Rogers was acting as part of her union during strike action, she was protected by Trade Union and Labour Regulations.

Employment Judge Morton said because the majority of the reasons given for Rogers’ dismissal referred to “[her] participation in the activities of an independent trade union at an appropriate time”, the dismissal was automatically unfair.  

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