employment case law
a question of applying the general test associated with an unfair dismissal – the ‘band of reasonable responses’ is not apt. The test includes a focus on the employee and their situation, and the employer should not make the decision on what they think is reasonable.
Wright v North Ayrshire Council The EAT has highlighted a common misinterpretation seen in recent case law with regard to the event that is labelled a constructive dismissal. It has declared that a ‘repudiatory breach’ need not be the ‘effective’ or ‘principal’ cause in an employee’s resignation, it must merely play a part in it. Wright was employed by the respondent, North Ayrshire Council, attending to the welfare of care home residents. She had been employed by the Council for just under seven years from December 2003 to November 2010, upon which date she resigned. Prior to the resignation the claimant had been through difficult personal issues, with the death of her mother followed by the ill health of her partner who, in time required her as a carer. Wright’s shift pattern did not allow her the time she needed to fulfil her caring responsibilities. She lodged three separate grievances, of which the Council failed to deal with two, and the third time she attempted to alter her shift work, provided a very delayed reply. A misguided allegation of theft also took place in which the appellant was treated ‘very badly’. After her resignation, she brought a claim for constructive dismissal – where the employer’s behaviour fundamentally breaches the employment contract that the employee is entitled to resign and claim they have been unfairly dismissed. In order to obtain a finding of constructive dismissal, Wright would have to establish that the Council’s actions, or lack of, fundamentally undermined the unemployment relationship. Though the above satisfied the tribunal that there was a breach of the contract by the Council, the debate was whether Wright’s resignation was in response to the breach. The tribunal found that the claimant had not been unfairly dismissed and had resigned on the grounds that she could not cope with both full-time employment and the care of her partner. The effective cause of resignation was not the employer’s
...DREW’S COMMUNICATIONS WITH HIS COLLEAGUES WOULD BE HEAVILY INFLUENCED BY HIS FAITH AND WOULD INCLUDE RELIGIOUS REFERENCES
actions but Wright’s inability to cope. The EAT found that the tribunal sought for ‘the’ cause i.e. the effective cause rather than ‘a’ cause of the resignation, dismissing the fact that the breach had impacted Wright’s decision. The EAT determined that the tribunal in question had misinterpreted previous authorities on the topic, and had sought to determine whether the behaviour of the employer was the principal cause in the Wright’s resignation. The test had been wrongly applied. Regardless of whether or not the breach was the principal cause, if a repudiatory breach by the employer has taken place and this breach has provided just cause for the resignation of the claimant, it has satisfied the terms of an unfair constructive dismissal. The original tribunal decision was
overturned and the appeal was allowed, as although not the principal cause of her resignation, a repudiatory breach by the employer had taken place and had negatively impacted the employment relationship. The aforementioned was enough to establish unfair constructive dismissal.
Attention has been drawn to the incorrect interpretation and this case has highlighted that there is only a need to determine the behaviour of an employer being a causal factor rather than an effective or principal cause.
Drew v Walsall Healthcare NHS Trust The EAT has held that an employee had not been treated less favourably than other employees by reason of his religious beliefs. After identifying the correct comparator, the EAT found that the employer would have treated other employees of a different religion in the same way as they had treated him and
therefore, he could not substantiate an allegation of religious discrimination. Dr Drew was employed by the Walsall Healthcare NHS Trust as a consultant paediatrician from January 1983 until his dismissal in March 2011. He had been praised for his clinical skills and had provided many years of dedicated service to the children of Walsall. He was clinical director of the paediatric department from 2001 to 2008.
Drew is a practising Christian; and the tribunal found that his faith is very important to him. The paediatric department of the Trust was found to be a multicultural and multi-faith department. Several instances occurred when Drew’s communications with his colleagues would be heavily influenced by his faith and would include religious references. This included circulating a prayer which he described as a personal inspiration and including religious references in his professional communication. After an internal review which recommended that Drew cease to use religious references in his professional work, he raised a grievance on the basis that his references were purely expressive and not religious. Further investigations and recommendations ensued which Drew disagreed with. Eventually, one investigation recommended disciplinary proceedings. These proceedings subsequently resulted in Drew’s dismissal. He claimed at tribunal that he had been treated less favourably on the grounds of his religion. The tribunal decided that he had not been. The EAT agreed with the original tribunal. They decided that the comparator put forward by Drew was not the correct person to compare himself against. The tribunal had identified correctly a hypothetical comparator as someone whose relevant circumstances were the same as those of Drew apart from his protected characteristic, being an ‘orthodox Christian’. Therefore, it was found that had the Trust encountered another employee who used references to their own belief system in their professional work – significantly whether a religious belief or not – they would have been treated in the same way. The EAT said that the tribunal had been entitled to draw the correct comparator and were also entitled to conclude that such a comparator would have been treated in the same way.
PP PayrollProfessional 31
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