This month’s 'In Brief' is a case law round up of the year and for that reason is bit less brief than normal! We’ve handpicked the Top 10 Cases from Northern Ireland of the last 12 months, so you don’t miss an important decision.

Click on any of the case names to be taken to a more detailed case review on the Northern Ireland Employment Law Hub.

Jason Elliott BL has also provided a helpful document pulling together all his case reviews from the last 12 months which can be accessed here:
Case Law Round-up from Jason Elliott, BL

Furlough

The takeaway from the following two cases is that furlough hasn’t changed everything. We need to go back to first principles – what does the contract say?

1. McClune v FORRME Ltd

An employee had taken a reduced salary on the basis she would receive a work van and fuel expenses. In June 2020 she was furloughed, and she raised her ‘salary sacrifice’ issue when her employer took the van saying she wouldn’t need whilst on furlough. She brought a claim for unlawful deductions from wages arguing that she should have received the money if she didn’t have the van.

The tribunal went back to the contract and decided that when the van had been taken, it was an implied variation to the contract. The tribunal agreed that she should have received the money in lieu of the van.

2. Hamilton v Babylife Ltd

The Claimant was employed February 2020. Unsurprisingly the business was temporarily closed soon afterwards due to Covid. The Claimant was retained and was working on the company website. There was no formal agreement on number of hours or on pay. Work on the website ended in April 2020 and there was no further work for the Claimant. She asked about the furlough scheme. However, the payroll application was made late, so she fell outside the furlough scheme. She brought a claim for unlawful deductions from wages. The tribunal went back to the contract – there were no guaranteed number of hours, so there was no breach.

Gross Misconduct

3. McEldowney v Randox Farming t/a CherryValley Farms

In this memorable case, a lamb died on a farm. The Claimant skinned it and put the carcass in cold storage. This was all done in full view of the farm manager. However, the Claimant was then disciplined for illegal butchering. The decision, following a disciplinary procedure, was one of dismissal.

The tribunal had to decide if his actions constituted gross misconduct. The tribunal concluded that there was no gross misconduct – he wasn’t trained, there was nothing in the contract on how to dispose of a dead animal. It was not wilful disobedience and therefore the dismissal was unfair. The tribunal also looked at ‘what if’ – would the dismissal have fallen in band of reasonable responses had it been gross misconduct? The answer was no – it was a first offence and there was no real harm to the employer.

4. Jasinskas v Sebden Steel Service Centre Limited

This case is interesting in that the final decision of the tribunal puts forward two views.  It makes its own decision that the procedure had been followed but goes on to say that even if they were wrong in making that argument the compensation would have been reduced to nil considering the conduct in question.    Indeed, there were serious flaws in the original process, yet this case demonstrates that the tribunal will look at whether the statutory dismissal procedure has been followed ‘in the round’ which looks at the appeal process as well.  This is not without foundation with a similar decision being reached by the EAT in Khan v Stripestar [2016].  For this reason, there may be some additional protection for Respondents through ensuring that any appeals process is conducted properly where the original disciplinary process may not have been.

Flexible Working

5. Lewis v Teleperformance

This case provides two very important takeaways.  The first is that Respondents should be mindful of the distinction between an informal application for flexible working and a statutory application.  Whilst the application here did not meet the third criterion, the Respondent should have examined the LRA guidance and outlined to the Claimant that it did not meet the statutory requirements.  The second takeaway is that even if an individual states they have resigned for a new role, the tribunal can and will look behind that remark to see why the Claimant was looking for a new role and if it can be attributed to a breach of contract/implied term of the contract then it can still suffice for the purposes of constructive dismissal.

Disability Discrimination

6. Claimant v Respondent [2020]

This case demonstrates the need to ensure that there is a proper basis for reasonable adjustments being made.  The Respondent in this case had followed the expert advice that they had been given and they were able to stand over the decisions that they had made.  The failure to get the promotion was a catalyst for many other issues relating to grievances and resignation.  However, the fact that the initial point was dealt with correctly meant that the Respondent was able to successful defend the action taken.

7. Edgar v Chief Constable of the PSNI

This case demonstrates the approach that must be taken when it comes to reasonable adjustments. It was found that the Respondents were aware of the disability and thus had to make reasonable adjustments. However, the tribunal gave weight to the organisational aims and operational matters of the Respondent. Whilst this may not apply to every Respondent, it does demonstrate that those matters can place limits on what adjustments would be regarded as reasonable. Therefore, as no alternative role could be outlined by the claimant or respondent it was held that the statutory duty had been complied with.

8. Byrne v Aware Defeat Depression

It should be a very simple objective of an employer to avoid the type of criticism that was faced by the Respondent in this case.  Failing to adhere to common sense procedures should put employers on notice to ensure that proper procedures are in place for all interactions with employees.  This should mean there are notes taken and certainty provided for employees.  The lack of certainty at the beginning led to this case snow-balling with the Claimant’s condition not being properly considered.

9. Harbinson v Hovis Ltd

The Claimant had a shoulder injury and was prevented from working for safety reasons.  The claim for disability discrimination failed as the comparator (someone who was not disabled and who was also prevented from working by Occupational Health) would not have been treated any differently from the Claimant as a disabled person.

10. Percy v Lenalea Electronics Ltd

The tribunal referred to the fact that it was unlikely that a person with a disability would discriminate against another person with a disability.  However, this rule does seem a bit general, and caution would advise not to rely too heavily on this. However, the decision of the Tribunal gave some useful insights into:

1. The meaning of ‘disability’;
2. The Claimant discharging the burden in a discrimination claim; and
3. An allegation against an individual making discriminatory remarks when they have the same or similar characteristics.

These cases and many more can be found in the Case Law section on the Hub.  You can also access a copy of our guidance for employers in making reasonable adjustments for disabled applicants and employees here.