Case Law Special

Seamus McGranaghan from the employment team at O'Reilly Stewart Solicitors and Christine Quinn from Legal Island discuss 3 big NI cases that you need to keep on your HR radar!

1. Molloy v D&W Carlisle Ltd [2023] NIIT 25132/21
A failure to follow isolation guidance during the pandemic constituted gross misconduct due to health and safety failings by an employee.

2. McDade v Norman Emerson Group Limited [2023] NIIT 63140/22
A claim of unfair dismissal rejected where it was found that the claimant had livestreamed a video containing sectarian chanting.

3. Devine-Gallagher v Lidl (NI) Limited [2023] NIIT 23572/21
A case in which capability was a fair reason for a dismissal of an employee who had been off sick for a long period of time.

 Recording:

 Transcript:

Christine:  Good morning, everyone, and welcome to Employment Law at 11, sponsored by MCS Group. My name is Christine Quinn. I am a Knowledge Partner here at Legal-Island. In my previous life, I was a qualified employment solicitor. Most of my practice and career was spent in London, but I've also practised here in Belfast. I'm delighted to be part of the team here at Legal-Island now.

So, I'm joined as usual by Seamus McGranaghan, director and employment law expert at O'Reilly Stewart Solicitors. For those of you who don't know, Seamus and I worked together many moons ago in O'Reilly Stewart, so it's lovely to work with him again.

I'm delighted to be back again today after my break in July where my very capable colleague Julie took over, so thank you very much for doing that, Julie.

So, what are we talking about today? We're talking case law, specifically three cases that have come through the Northern Ireland tribunal system recently.

First one, the Molloy case we'll call it, the failure to follow isolation guidance during the pandemic. It's the first of many COVID cases that are starting to come through the tribunal.

We've then got the McDade case, which is an unfair dismissal claim, which was rejected regarding sectarian chanting on a live-streamed Facebook video.

And then we've got the Devine-Gallagher case, which is a case of a dismissal of an employee who was off sick for a long period of time.

What can we learn from these cases? We're going to find that out shortly. Don't forget to drop your questions in as we go, and I'll put them to Seamus as we work through the cases.

So, all the case links can be found in the Chat tab. That's the links to the case reviews on Legal-Island's Hub. The full decisions are also attached as PDF hand-outs if you want to have a look at those in full.

In the Chat tab, you'll also find a survey from our friends at the Labour Relations Agency. They're actually consulting about a possible name change for their organisation and they'd like your input. So if you have a moment, they would really appreciate that.

So, thanks as always to our sponsor, MCS Group. MCS help people find careers that match their skillsets perfectly, as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you are interested in finding out how MCS can help you, head to www.mcsgroup.jobs.

But first things first, we're going to get you guys involved and we'd like to know what you think about a few things. Maria is beavering around in the background. She's just going to bring up the first poll for us, hopefully. So, let's have a look at this. Do you monitor your employees' social media use? If you could select one answer. So "Yes, they know about it via our social media policy", "No, that's their business. We don't want to know", or, "Not officially, but I am friends with them on Facebook or LinkedIn or whatever, so . . ."

Let's see what you think about that. We can see all the votes coming in. Let's have a look at the results. So, 56% are saying, "No, it's their business. We don't want to know". Now, I can understand that mentality, Seamus, but I'm slightly surprised it's so high. What are your thoughts? 

Seamus:  Yeah, I'm surprised at that, actually. They must be all very good and restrained in relation to not looking up their employees' postings.

It's an interesting one, the 56% that they don't and don't want to know. I mean, I think that that's probably where most businesses are at, in the sense of what people do outside of their place of work is up to them.

But it is an interesting one with social media. A lot of people in businesses and places of work are encouraged by their employers to promote the business. And often if there are postings that the business puts up, they might like or share them in some form.

Certainly, then, there's that aspect of the wider audience on social media maybe having an understanding or certainly becoming aware that a person might be employed in a certain business if it's through their Facebook. Certainly on LinkedIn, everything is tagged specifically in relation to sort of your professional work life and things like that.

And then the question arises around where there is that association on social media, if the person posts something that isn't appropriate or is offensive or would cause difficulties, where then does that leave the employer if there have been those links or linkages made, particularly where the employer has encouraged employees to like and share things about the business, for instance?

Christine:  Well, let's see if we can maybe change some of the minds of those 56% when they hear about the McDade case a wee bit later.

So, let's have a look at the second poll then. This really relates to the Divine-Gallagher case that we're going to be talking about. So, how long does an employee have to be off work to be considered long-term sick? And you could select which you think the correct answer is. We've got "4 weeks. There's case law on this", "6 to 12 months. It's in the Disability Discrimination Act", or lastly, "It depends".

So, let's see what you all think about that. Bearing in mind, there are two lawyers that have written these questions, so . . . Oh, okay, four weeks seems to be . . . 58% of people are saying four weeks, because there's case law. Seamus, are the 58% correct? 

Seamus:  Well, my view would be on it . . . certainly you do hear around four weeks' policies and procedures. Sometimes we'll often say four weeks for an entitlement to refer to occupational health. For me, the safer option is "it depends". Certainly you need to take individual circumstances when it comes to sick leave. You need to have an understanding of the employee's background in relation to their medical circumstances and things like that as well.

So I don't think it's a straightforward rule of thumb to say, "Oh, four weeks, box is ticked, it's long-term sick leave", and we do it. You do need to take things on an individualistic approach and just be careful around saying that it's automatically into that period.

People will look at two aspects. They'll look at the attendance policy and procedure as to what that says, and that will influence how you treat that period of absence and whether you need to go down an informal or a formalised route in relation to being in contact and staying in contact and things like that, looking to see when the employee might be fit and available to return to work again.

And then there's the other aspect of the pay. What's going to happen to my salary during that period? What does the policy and procedure say about that?

And sometimes people can tag that in to say, "Well, look, I get four weeks' full pay, and after that it must be then considered long-term sick leave because I get an enhanced sick rate for four weeks", or for six weeks or whatever it might be.

But you do need to be careful about that. You need to have some knowledge. And again, all of that is about engagement and communication with whether it's the HR department management and the employee themselves.

Christine:  Brilliant. Thanks very much, Seamus. And thanks, everyone, for joining in with those polls.

So, let's get started. Remember, do drop any questions you have for Seamus into the questions box as we go.

1. Molloy v D&W Carlisle Ltd [2023] NIIT 25132/21

So, let's have a look at the Molloy v D&W Carlisle Ltd. Now, this is the first of many COVID cases that's starting to make their way through the tribunal system. And I think what we need to do now is really put ourselves into the mind-set that we were in, in December 2020. That's certainly what the tribunal had to do.

December 2020 was extremely dark times. We were kind of into second lockdown. There was another variant being talked about. We didn't really know what that meant. There was mass testing. We were all getting a bit tired of doing Joe Wicks every morning. The banana bread was just not on the menu anymore. It was dark times and we have to remember the mentality of those times really, don't we, Seamus? 

Seamus:  Yeah, absolutely. I mean, I was away for a couple of days in July, and it sort of hit me then when I was away in July of how different it was this time even compared to last year. You were still sort of a lot on edge on how open and everything. I went to a concert and stuff like that when I was away as well, and it just occurred to me how things really have come a long way as to where we were.

But this was back . . . the circumstances of this case, this was a case that was heard in the tribunal just in March 2023, but it related to events that took place in and around September 2020, really from September to December 2020. So the initial incident was in September, and then the dismissal itself I think was on 30 or 31 December 2020.

So back at this stage, no vaccines, lots of talk about possible vaccines. And interestingly, this was a case that related to a break that the employee had in Ballymena. It was a time in Ballymena when there was a very surprising spike in cases particularly in Ballymena, and the time itself was lockdown.

But look, the case itself was a lengthy case of three days. There was a submissions here and then after that as well. It was a well thought case in terms of the circumstances, and when you read the judgement, you can see why. There are lots of interesting points, but if you take a step back from it, I think you can absolutely see the sense of the tribunal.

But essentially, you've got a claim for unfair dismissal. It's a failure to follow isolation guidance during the pandemic, and at that sort of early stages of the pandemic, and specifically around health and safety feelings by the employee.

So, the respondent, a wholesale distributor grocery business Ballynahinch, and the claimant had had lengthy service. That's another important point. He was employed from June 1999. He went into the business as a general assistant, and at the date of his termination, he was the general manager of the store.

The claim came to the tribunal in March 2021, so the dismissal was at the end of 2020. Claim came in March 2021, and the hearing then was two years later after that. So, just to get our timelines in place.

So, the tribunal then sort of . . . Judgement is very sort of straightforward and easy case to read and understand, but in particular there's a finding of fact section in the judgement that you'll normally always get in these cases. There was a particular point that the tribunal made in the findings of fact that the employee was employed as the general manager, and they actually set out excerpts from his contract of employment relating to the high standards that were required and the ethics of the organisation and the business.

So they gave consideration to that and also to the respondent's disciplinary code of conduct, and importantly another document, which was the COVID risk assessment document that the respondent had put together.

I'm not sure whether the GM had input in that or not, but just in terms of paperwork and documentation, always in these cases that's the important element of it.

So, the background was that the claimant and his partner had travelled . . . they'd taken an overnight stay in Ballymena on 10 September 2020. There was this spike that was reported from Ballymena on 11 September, and the town itself was placed then in a lockdown.

The claimant had played football on the Sunday, the 13th, and he later that day developed a high temperature. And under cross-examination, he accepted that his high temperature could have been a symptom of COVID, but that wasn't accepted prior to the case.

The claimant attends for work on the Monday. That's the 14th. And then during that week, there appears to have been various reports from employees saying a few concerns around the claimant. It had been noted that he had been sweaty and he had a croaky voice. He'd been coughing. And I think some of these issues were raised by employees, and the claimant played it down and said that he maybe had a rough voice from singing activities that he was doing and things like that.

The claimant's case was that he didn't develop symptoms after 13 September, and he said that he developed this croaky voice because he had been singing along to a song. But he did present then for a test on Thursday, the 17th. So he came back into work on the Monday. He seems to have some sort of symptoms around that week. He goes to the test on the 17th.

And he said in his evidence that he booked the test as a precaution. Not because he had symptoms, but just simply because he was taking a precautionary view of it or a precautionary step.

The tribunal didn't accept that argument. They said if he went for a test, he went for a test because he was displaying symptoms and he knew that he was displaying symptoms. 

So, he goes to the test and he gets . . . He's off that afternoon, but he goes back into work on the Friday morning, which is 18 September, and he mixes with staff and customers. And then subsequently later in the morning, he gets the dreaded message text or email from the testing centre to say that he's tested positive.

Now, he removed himself straight away, and he notifies his employer that he has COVID, but this obviously created issues for the employer in the fact that they were saying that the guidance at the time was if you went for a test, you did not return to work. You waited until you got your result. And if your result was negative, you could return to work. If your result was positive, you had to self-isolate.

So, there was that important period that you had to self-isolate if you went to get a test, and what he did was he went and got the test, and then he went back into work the following morning. And that's the issue that the employer had had.

So, basically, then they started a disciplinary investigation on 5 October. They bring somebody in to do that independently. The employee is suspended on 9 October, and then he lodges a grievance on 16 October.

And in that grievance, he says, "This is the perfect opportunity for the employer to get rid of me". So early on in the case, he's flagging up that he thinks that the employer's looking to get rid of him.

Interestingly, the employer proceeds with a combined grievance disciplinary process that took place on 17 November. And then subsequently, he's notified of his dismissal on 30 December.

He does appeal that, but he doesn't appeal until 30 January, a full four weeks later, when he's notified at the time that he has five days to appeal. He gets the grievance outcome on 15 January and he obtains new employment on 1 February. So that's the timeline that we're looking at.

What the tribunal said was that they were satisfied from the evidence that the claimant knowingly attended for work while displaying symptoms and despite having taken a COVID test, and he was told to self-isolate, but he went back into work.

And they said that was a serious breach of the respondent's health and safety rules, looking back to that all-important COVID risk assessment document, and also linked in the code of conduct to that as well.

And they said they were satisfied it was reasonable for the respondent to conclude that the claimant's actions had the potential to bring the company into serious disrepute.

But they also said that the claimant's conduct was the principal reason for the dismissal, and that the respondent had a genuine belief . . . These are the [Rubin 00:16:34] principles set in the Rubin case, and you can get all that if you look at the tribunal case itself. So they believed that they had a genuine belief in the claimant's misconduct and that the respondent had reasonable grounds to sustain that belief.

They said the respondent had carried out a reasonable investigation, and they in fact praised the investigator in the judgement. They also said that the dismissal was within the bounds of reasonable responses. They said that the lives of others were placed at risk. And interestingly, they said also . . . they recorded the fact that the claimant at no state showed any remorse in respect to his actions.

So, lots of issues are covered in the case. I think some of the more interesting and nuanced ones were that aspect of . . . I do the grievance section at the postgraduate certificate at the University of Ulster. This is a good one to look at because what we have is we have the employer taking that overlap approach in relation to the disciplinary and the grievance, dealing with the two together.

Now, what they did was they dealt with the grievance in the morning, and they dealt with the disciplinary in the afternoon. They then issued the disciplinary outcome before they issued the grievance outcome.

But they were satisfied that the allegation that the employer wanted to get rid of them, that they were being opportunistic, all formed part of the one set of circumstances, and the tribunal didn't have any issue with that in this case.

There's an issue around lesser sanctions, and particularly there was an allegation that they just went for the jugular. They went for gross misconduct and summary dismissal and they didn't consider anything else. 

Really importantly, the tribunal referred back to the disciplinary invite letter, which specifically stated that that was one possibility amongst a number of possibilities, and the tribunal were satisfied in that basis that other sanctions were considered by the employer.

This issue around a predetermined decision, if you read the decision itself, it is really an interesting point because there was a witness that was . . . Now, she was a reluctant witness. It was done over witness summons. But she gave evidence that the director did say to her, after all this was over, "I want the claimant gone". And that was a key part, I assume, of why the claimant pursued and pushed the case at the time. But the tribunal wasn't swayed by that. 

I think the tribunal's view has been here, "Look, bottom line, there's been disregard in relation to the circumstances and the guidance that had been issued, the health and safety and the risk assessment", and that was probably the overriding position. But they said that there was no evidence deduced to show a nexus between that comment and the claimant's dismissal.

And then the other interesting point was just around the appeal. The claimant was offered a right of appeal. He did put an appeal in, but it was a month after he was given the decision, and he was 25 days past the date when he should have lodged it.

When I read the case, I thought, "Oh, that's interesting as to what the tribunal might do here", because my advice would probably be proceed with the appeal in any event in case an automatic unfair dismissal follows through on the failure for the employer to follow the three-step procedure.

But the tribunal were satisfied that the appeal had been served well out of time, 25 days later. And interestingly, they also say that there was no reason provided by the claimant for not appealing within the five-day limit. So, bit of an interesting lesson there in relation to that as well.

The tribunal regarded that delay as significant, and they said that they considered the statutory dismissal procedure had been followed by the respondent in the process itself. So for me, I think that that was interesting.

Christine:  Sorry, Seamus, just to clarify. So the respondent opted not to hear his appeal, and that was kind of okay as far as the tribunal was concerned? 

Seamus:  Yes. The respondent didn't reply to the appeal whenever it was lodged. They did offer the right of appeal, and the claimant submitted it late, and then they didn't proceed with it.

And whether or not there was knowledge that he'd got another job on 1 February, I don't know the circumstances of the role. There are no mitigation details in the decision at all, but the tribunal's view was that that wasn't . . . It didn't result in an automatic unfair dismissal. They were satisfied that the procedure had been followed. The onus was on the claimant either to lodge the appeal in time or give a reasonable excuse as to why it wasn't.

Christine:  Yeah, that's a very interesting point because I definitely would have erred on the side of caution and probably said, "No, I think we should probably give it a hearing", but very interesting that that wasn't the case here.

I suppose, Seamus, I'll just wrap up with a few takeaways on the Molloy v Carlisle case.

So, I think my first takeaway would be having and following a good disciplinary procedure pays off. It all comes down to the training of the managers involved in it. Don't just have it in a nice piece of paper. Make sure they know what they're doing, and it seems that they did know what they were doing in this instance.

Second takeaway would be keeping that good paper trail. Don't just do the right thing. Be seen to do it and prove you've done it as well.

And then my third takeaway is really about the offhand comment made by the director of, "We want rid of this guy at the end of this". To me, a lot of people would think that has doomed the case, but because their procedure was so spot on and because their paper trail was so good, somebody making kind of an emotional comment at the wrong moment didn't doom the case.

Obviously, less than ideal and we'd prefer directors to not do that, but they managed to get away with it in this instance because the rest of their procedure was so good.

So, I think those are my three takeaways on that, Seamus. 

Seamus:  Excellent. 

2. McDade v Norman Emerson Group Limited [2023] NIIT 63140/22

Christine:  Okay. So, let's have a look at the McDade case then. So, this was a highly publicised case in the media, which of course is some of the reasoning for the decision in the end. It's regarding a Facebook live post of a party or a get-together at an Orange Hall. And without going into the details, because it is a fairly emotive case, there was sectarian chanting and it was specifically in and around the death of a young woman, essentially. So, that's why it got such a reaction from the media. So, Seamus, do you want to tell us a wee bit more about it? 

Seamus:  Yeah. Well, look, this was a case that was heard at the Industrial Tribunal just here on 16 and 17 May of this year, so a fairly recent case and very much, as you say, a highly publicised case of just a straightforward case of unfair dismissal. No other claims involved whatsoever.

And the respondent, Norman Emerson Group Ltd, is a family-run business that's been operating in Northern Ireland for over 75 years around the Mid Ulster area. It provides stone, sand, and other building materials, a wide range of customers, and services the entire community inside and outside of Northern Ireland. And it is a mixed workforce. So, that's the background to the respondent.

The claimant was an HGV driver. He'd been employed by the respondent for eight years up to the dismissal, which was 10 June 2022.

And the tribunal noted that the claimant had a forward-facing role and that he was the face of the company when it came to delivering the products that the company was selling. So the claimant was specifically meeting and interacting with the customers. And again, the tribunal noted that it was a mixed workforce. 

So, basic background, 20 May 2022, the claimant live-streamed a video on Facebook, and it was a clip of around 31 seconds, and it showed a group singing a sectarian song, which mocked a young woman who'd been murdered on our honeymoon. And the Facebook account identified the claimant as being an employee of the respondent. So, the claimant did have on his Facebook that he worked at the respondent's place of business.

The video clip went viral, it provoked strong condemnation, and the respondent carried out an investigation. The claimant was suspended, and there was a dismissal that was followed. The claimant was dismissed on 10 June 2022.

The claimant didn't appeal the dismissal. That's set out in the judgement. But he lodged the claim in the tribunal then on 11 August. So, dismissal on 10 June, claim was lodged on 11 August.

A couple of interesting matters in this. Everyone, I'm assuming, will know and be aware of the details of what happened and the circumstances. It was widely publicised. But for me, a couple of the interesting things on this were the tribunal . . . which you often do see set out, but it's set out in quite a lot of detail within this judgement, is the credibility of the witnesses.

So, the claimant was the main and I think only witness for himself. His representative might have given some evidence. I'm not quite clear about that. But the tribunal were strongly critical of the claimant and they didn't consider him as a credible witness at all.

But on the other hand, the tribunal found the respondent's witnesses to be very credible. Tribunal recorded in its judgement that the respondent's witnesses gave clear, consistent, and credible evidence, and it said that they approached their duties seriously and conscientiously.

So, there's no doubt whenever you're dealing with clients on these matters, you're always saying, "Look, the tribunal panel, they're human beings. They make judgements. They see people giving their evidence. They see how they're giving their evidence. They have to weigh it up and they have to make a decision". And the credibility issues are always something that is around tribunal cases.

Often, the tribunal will find both sides are very credible. And again, in the last case that we'll look at, there didn't seem to be any issues in relation to credibility of the witnesses, but on this one, it was a big factor.

The finding of facts in itself that the tribunal recorded, they said that the important thing to the respondent and to the tribunal was that the claimant chose to live stream the event and didn't stop the streaming when the song started or when the song continued, and that that had caused outrage and significant reputational damage for the respondent.

It's clear that the reputational damage element was important, and the decision records various complaints, condemnation, media interest in the case. There was contact made to directors in the company by customers to say that they wouldn't engage with them again, that they wouldn't place orders. And also, staff had said if the claimant continued to be employed there, they would leave.

So very motive and around all of that, but that was all circumstances that the tribunal took into account during its decision.

The claimant attended the investigatory and the disciplinary meeting unattended. He'd no accompaniment there. There was a dispute around whether the claimant had admitted the allegations.

The respondent's view was that he had admitted the allegations during both the investigatory and the disciplinary. The claimant said no, that he didn't admit it. He acknowledged the allegations, I think was the way that it was put. He acknowledged the allegations, but he didn't say that he was either guilty or not guilty of them. But the tribunal made a clear finding that he had accepted at both meetings . . . that he had admitted the allegations.

There was an examination and consideration by the tribunal of the company handbook, and what the company handbook said. Tribunal found that the dismissal was fair, and it was well within the bound of reasonable responses.

They don't beat about the bush in relation to their decision at all. What they say is that they were satisfied that the respondent believed in the guilt of the claimant in relation to the disciplinary charges, and the respondent had reasonable grounds for that belief.

The tribunal actually went on to say that it was beyond a reasonable argument in relation to the respondent's position when it came to its belief and the continued belief in relation to the allegations that had been placed against the claimant.

So a fairly clear decision from the tribunal in relation to it. It's certainly a robust decision.

There are lots of interesting points in the judgement, specifically around issues that arose during the hearing and how the tribunal dealt with that and things like that as well.

But I think the big thing for me is it's the issue of social media, and just interesting around sometimes employers are encouraging their employees to post, to like, and share those sorts of . . . Even if it's a company seal within a retail business, you'll see employees liking and sharing that.

But at the same time, there is the concern that an employee could do or say something that would be offensive or, like this case, cause widespread condemnation.

So I think, for me, really important that if you're an employer, you do have some form of social media policy and procedure in place. I think that you need to provide training in respect of your social media. If you're asking your employees to like and share parts about the business, you definitely need to make it clear about what the expectations are when it comes to use of even their own personal social media at that stage.

And again, it has to be a living and breathing position. It's not good enough . . . just what you had said at the start there, Christine, or in the last case. It's just not good enough to have a policy and say, "Here's our policy". It needs to be a policy that is explained, that there's training provided in relation to it, and that it's renewed to make sure that it is up to date.

The way that social media moves and how the quick pace of it all comes around, that definitely needs to happen.

And for this case, the reputational damage . . . I think we talked about that not on our last podcast, but the one before that. Reputational damage was clear in this case, and it was clear that there was an impact on the business as a result of the employee's actions. 

Christine:  Brilliant. Thanks, Seamus. So, I think my takeaways on the McDade case are, again, have a good disciplinary procedure, use it well, and keep that paper trail and make sure your managers are on it and understand it.

Secondly, I would say have a social media policy. It aids understanding, avoids confusion. Make sure your workforce knows and understands that.

And that leads me into my third takeaway. Train your employees on the use of social media. Once they put something out there, it's there forever. So, do they want to have to consider whether they're mentioning their employer on Facebook? Do you want to consider whether Facebook is the appropriate place for advertising your business, or is LinkedIn more appropriate? There are a lot of things to consider in social media, so make sure you and your employees understand it and are trained on it.

Maria is very helpfully going to drop into the chat just a link to Legal-Island's social media training. If you do want to have a look at that, I'm sure Debbie over in our eLearning Department would be very happy to hear from you and will help you out if you do want to avail of that training.

But I think, as you say, Seamus, it needs to be a living and breathing policy that everyone understands properly and knows how to use.

Brilliant. Thanks. I think that wraps up the McDade case then, Seamus. So, let's have a look at Devine-Gallagher v Lidl.

3. Devine-Gallagher v Lidl (NI) Limited [2023] NIIT 23572/21

So, I picked this case because I think it's something that comes up a lot. When I was in private practice, there were always a lot of calls about people who are on long-term sick and there's a lot of fear and kind of . . . You don't want to do the wrong thing here, and, "Oh, what if they're disabled?" And that brings an extra element into it.

There's kind of a perception that there's not a lot you can do and your hands are tied and the law won't assist you if it comes to the point where you do have to dismiss an ill employee. And I think this case is really helpful in illustrating that it is possible to do it in a fair way.

So, do you want to tell us a wee bit more about it, Seamus? 

Seamus:  Yeah, sure. I agree, a really interesting case. A really helpful case for anybody that might have that circumstance where they have an employee off on long-term sick leave and significant long-term sick leave and might be looking at what they can do, whether the contract is at a frustrated point where they need to look at termination and all those sorts of issues.

Exactly same as me, these sorts of issues come across the desk all the time. So it's a really helpful judgement that gives sort of a bit of clarity around what it is that you might want to be looking for.

So, the case itself relates to the capability. The respondent's position was that there was a dismissal that took place, and that the dismissal was fair because it was on the grounds of capability, which is one of the fair reasons for dismissal, and on the basis of the employee had been off sick for a long period of time.

So, this hearing took place . . . it was quite a lengthy hearing. It was 5 through 9 September, 28 through 30 November, and I think it concluded around . . . The evidence concluded around 5 December, and there might have been some submissions then after that.

And the claim is related to two aspects really. One was unfair dismissal, and the claimant's allegation was that the decision to dismiss her from her employment was premature as the respondent didn't wait long enough for her to recover from surgery. And the respondent relied upon capability as the fair reason for the dismissal.

And then the second aspect of the claim was disability discrimination. There were lots of various elements to the discrimination claim. We had direct discrimination, harassment, failure to make reasonable adjustments, victimisation. 

There's lots of on-going content within the decision about those latter aspects, but I'm sort of more going to focus on the unfair dismissal and then just the direct discrimination claim.

Interestingly, the respondent didn't concede the disability at the start of the substantive hearing itself, so it was all at that point up for the fight.

Claimant was employed . . . she was a deputy logistics manager. She worked in the warehouse for Lidl, and she commenced her employment November 2003, and her dismissal date then was September 2020. The ET1 was in on 20 January 2021.

So, the role that she performed, she managed staff, and then there was a hands-on role element as well. She was sort of moving a lot of stock around and there was use of a forklift-type truck and things like that as well.

The significant issue for the claimant was that her back problem had been caused by her duties, and the respondent's failure to provide reasonable adjustments from 2018 to 2019 were why she had ended up at the point of where she was at.

So, she ultimately had to go for surgery in respect of her back, and she was blaming her duties with the respondent on the back injury, and also that they didn't make reasonable adjustments for her.

But the tribunal didn't accept that. Certainly, the tribunal did not go into any kind of detail to the claimant's medical history, but what they said was that the medical evidence that they had wasn't supportive of that view that the claimant was making.

The tribunal, you can see that certainly they were very accepting of the claimant's back injury, and there's sympathy within the decision about that. They said that sadly the claimant had a very serious back injury requiring an operation in October '19. The operation was unfortunately not successful and the claimant had to go then under further surgery in August 2020.

But essentially, time-wise what we're looking at, the claimant went off on sick leave on 30 June 2019, and had her operation in October '19, but never returned back to work following the time that she was off. So from 30 June 2019, she never returned to work again.

But really helpfully, there were a lot of Occupational Health reports. Again, the tribunal go into some detail on that, but not a massive amount. But we know that she had her first surgery in October '19. There was an Occupational Health report in January 2020 that said that the claimant was not fit for work. Second back operation, then, on 4 June 2020. No, sorry, in between that time, there was a second operation required and there was an Occupational Health report on 4 June 2020 that said that she was going to have to have another operation.

A capability hearing took place on 18 August 2020. Interestingly, again, that was done by telephone because of COVID and because of restrictions at the time, but the tribunal didn't have any criticisms in relation to that.

The claimant did allege that she was vulnerable at the time and the respondent was being opportunistic and things like that, but the tribunal didn't accept that.

Second back surgery then on 20 August 2020, and the dismissal was on 24 September. There was a grievance and there was an appeal lodged that went upheld. But essentially what happened was after the appeal was lodged, the respondent sought a further Occupational Health report, and it said that it would take the claimant somewhere between 12 to 18 months to return to work, but there was no guarantee that she would return to work at the time. 

And interestingly, then, we have an Occupational Health report in January 2020, June 2020, and then a further one in November as well, after the dismissal takes case.

And the tribunal ultimately found that the reason relied upon by the respondent for the dismissal was capability, and that they appeared to be happy that the medical evidence was clear that the claimant wasn't fit for work and she was unlikely to be fit for at least another year after that.

The tribunal found that the dismissal was fair, and that it was within the bound of reasonable responses.

And then they went further into the discrimination, and the tribunal said that the dismissal didn't amount to direct discrimination. They said the factual reason for the dismissal was that the claimant was unfit for work. The claimant had not been dismissed because of her disability, and disability was the context, but not the cause of the dismissal. And I thought that was quite . . . that lifted off the page for me, those words "the disability was the context, but it was not the cause of the dismissal".

The tribunal ultimately found the claimant had been absent for work for 1.5 years, so a year and a half out of work, and no reasonable prospect of her returning to work within a reasonable period.

And you'll often hear me say that. "Oh, it's a reasonable period". And you say to me, "What is a reasonable period?" and I'll say, "It depends on the circumstances of each case". But here, you can see a clear process where the tribunal are satisfied with the respondent's manner of dealing with this case.

So, just to go back over that, she'd been absent for a year and a half, she'd had the second surgery, and the OH report said it's going to take at least 12 to 18 months for her to be able to return back to work, but there wasn't a guarantee of that.

And interesting points out of it, again, are the aspect of the meetings taking place during COVID, and that was acceptable by telephone. So, we might see further cases coming through from the tribunal and judgements whereby there have been these amendments made in relation to adjustments for meetings and things like that because of COVID. The tribunal appear to be of the view that certainly, in these circumstances, it was acceptable.

And also, then, that the tribunal were really . . . Well, they commended the appeal officer for going back to get a further Occupational Report after the dismissal and in advance of dealing with the appeal itself. They reported that that was beyond what most employers would do, and that they wouldn't go back to get a further report. And I think that really stewed in the respondent's favour when it came to looking at the overall considerations, and particularly then leading into that discrimination aspect as well.

Those other claims of victimisation, failure to make reasonable adjustments, they all fell away on the basis that the direct discrimination wasn't there. But the tribunal do go into that in detail, and there's lengthy content about all of those claims as well, which are interesting to read.

I think the key points for me on this one are you need to take each case on its own circumstances. You can't just simply apply a number of weeks and say, "There we go. We've hit the trigger, and now we are in a position where we can dismiss". 

There's no specific timeframe in relation to what is an adequate time to be absent before you can look at dismissal. The key aspect of that has to be medical evidence. If you don't obtain medical evidence on a capability dismissal, you're going to be in difficulties for the vast, vast majority of cases.

And you need to read the medical evidence, you need to give it consideration, and if the medical report is saying that they won't be fit for a further 12 to 18 months, you need to weigh that up in relation to what the circumstances of the absence are.

Really important, you need to have a policy and procedure in place and you need to follow it. The tribunal in this case examined the policy and procedure in place and obviously went through the various steps in relation to that.

And then just that aspect of covering all your bases. Just because you've got a medical report . . . And sometimes that happens more recently with COVID and everything like that. I've had employers come to me and say, "Oh, here's our medical report that we got six months ago. Can we now dismiss?" And my advice is, "You need a new report. It was six months ago. You can't stand over that".

They get really frustrated and say, "Oh, this is going to take another three months to deal with", but I think this case is a real clear indication that whenever you're making that decision, your medical evidence needs to be up to date. 

Christine:  Brilliant, Seamus. I'm just going to do a few takeaways from this case and then we've got some questions. I'm a bit mindful of the time, but hopefully people will hang around to hear the answers to the questions.

So, my takeaway really from the Devine-Gallagher case is a series of reports from Occupational Health is extremely helpful. I think this is like almost a master class in how to do it correctly, this case. They were really well organised and they did it right.

Second takeaway is for a safe dismissal, you must demonstrate that there will be a continued long-term absence and have your paper trail of your evidence of this.

And third, I think it's worth bearing in mind the onus is on the claimant to prove that the discrimination occurred, not on the respondent to prove that it didn't. I would've got a lot of clients saying to me, "Oh, but I'm not discriminating and it's very unfair of them to bring this case". They're completely entitled to bring the case, but they also have to prove that case. And I think that's something you should always bear in mind.

Let me just have a quick look at these questions. So, we've got . . . Let me see. Let me just pick out the Devine-Gallagher ones. I think that'll be the easiest. "Can I ask if someone has a disability which prevents good attendance at work, e.g., they are off for large periods due to depression about other illnesses? Would this also fall into a capability dismissal?"

Seamus:  Potentially. Potentially it would do, if you're looking at that aspect of frustration of the contract. The contract is a contract where the employer provides work and the employer contracts to do the work, and where the employee isn't in a position to do the work, then you're looking at potential frustration of the contract.

I mean, it's likely that the person will have a disability if they've been off for that lengthy period of time, and if there are mental health issues over a broad period of time, it's likely that it'll be discrimination. The requirements are there to provide reasonable adjustments. They are what they are. They are reasonable. You don't have to move mountains in relation to it. They're reasonable adjustments that need to be made.

But even with the reasonable adjustments being made, if the absence is still at a point where the contract is open to frustration, then you might be looking at the point to say, "Is this person going to be in a position to provide us with consistent and continuous service?"

And if that's not the situation, you could potentially be at the point of looking at frustration of the contract and terminating the contract, but you would need to have very clear evidence and the bar is set quite high there for employers in a tribunal setting. You need to have clear medical evidence that the person isn't going to be able to provide continuous service over a period of time, and you need the medical evidence to see that.

Tip for that for me is always when you're obtaining your Occupational Health report, very quickly people can do the tick box exercise and tick, tick, tick, tick, tick, and then there's a little small box for you to put in maybe additional queries.

I like to prepare sometimes for clients an addendum to that and really set out the proper background of the case and make sure that the Occupational Health assessor, whether it's a doctor or a nurse or whoever it is, has the clear background that you need them to have in relation to the case and also the queries and the questions that you want answered.

You need to be careful about that, Christine, because under GDPR and subject access requests, the employee can ask for those. So you can't just surreptitiously stick something in and hope that you get a good answer with it. You always need to do that on the basis that that might end up as evidence in a tribunal, number one, and also that the employee might request it. And they are entitled to sight of it if they do.

So, you take a straightforward approach. You're entitled to ask your questions, but I always think that that's much more helpful than just ticking the box and sending the request back. If you put a bit of effort in, you tend to get a bit better response. 

Christine:  Brilliant. Thanks very much, Seamus. And just a quick question relating back to the Molloy case at the start. Did the same investigator hear both the grievance and disciplinary in that case, or did they switch? 

Seamus:  I'm not sure. I don't know if the judgement would clarify that. I know that it was an independent third party. I'm not sure whether it was the same person. I think that it might have been, but certainly the tribunal didn't . . . If it was, the tribunal didn't have any issues with it because they praised the investigator.

Christine:  And that's one of those . . . that's another big question that we get a lot. I tended to err on the side of caution because that's what I do, and I would've maybe tried to split it up to have different investigators. But I know that that's not always correct. That is the more cautious approach to take.

Sorry folks, there were loads of questions today. We're just not going to get through them all. Clearly, particularly the last case, long-term illness and dismissal seems to be a big thing, so it's definitely something that I'll be flagging up here at Legal-Island that you want more answers to that.

So, thanks for all the questions, but we're going to have to call it a day. Thank you very much, Seamus.

You'll see up here on the screen just a bit of information. Our Annual Review of Employment Law is coming up again in November. Seamus and I will be there. We will be there in person, which will be nice. But if you prefer to stay at home or in the office, you can also log in for the Annual Review. So, you've got the two options this year, but we'd love to see you there. Seamus will be there talking about banter in the workplace.

And Legal-Island, as you know, does eLearning training and we've got an HR Toolkit, which provides comprehensive training to assist HR professionals in Northern Ireland. The details are there. If you want to drop debbie@legal-island.com an email, she will fill you in with some more details on that.

Employment Law at 11 will be back in September, first Friday in September.

You can also catch us on podcasts on Spotify, Amazon Music, and something else, which I can't remember. The other one.

And in the meantime, if you want to drop me or Seamus a message, we are on LinkedIn.

But thanks very much for listening. Thanks, Seamus. And thanks, Maria, for all your help in the background. We'll see you again soon.

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