Employment law bulletin 179: whistleblowing, compulsory retirement age

In the latest Hamers newsletter, our employment law expert Lynsey Howes analyses qualifying disclosures in whistleblowing claims, knowledge in disability claims and whether companies should have compulsory retirement ages. What do the courts say?

Disability discrimination: an important decision

Can an employer be held guilty of disability discrimination if they are unaware of the condition at the point of dismissal?

The Claimant was a newly employed paralegal at a firm of solicitors. Her performance was poor during the probationary period and she was dismissed. Following her dismissal, the Claimant raised a grievance which referred to her disability. The Respondent was duly notified by the grievance that the Claimant had a disability. However, it rejected her grievance and her appeal.

The Claimant brought a claim stating that her dismissal was discriminatory. She did not, however, complain about the outcome of her grievance or grievance appeal.

The Employment Tribunal dismissed the claim, making a finding that the Respondent did not know and could not reasonably have known about the Claimant’s disability at the point of dismissal.

The EAT agreed with the Tribunal, adding that as the grievance and grievance appeal did not form part of the claim which the Tribunal was deciding, these factors did not need to be taken into account. It was right for the Tribunal to limit its decision to the matters the Respondent knew about at the point of dismissal. The knowledge acquired by the Respondent after the dismissal, could not assist the Claimant in her claim.

This is an important decision about knowledge or constructive knowledge when dealing with a disability claim, but also a lesson about careful drafting of claims in the first place.

Worker status: delivery drivers

This is another example of the lengths needed to illustrate that a person is genuinely self‐employed and not a worker.

A moped delivery driver was permitted by use of an app, to release his slot to other delivery drivers. The company, Stuart Delivery Ltd, argued that this ability to release a slot to other delivery drivers who had signed up to and had been accepted as approved drivers was akin to providing a substitute to do the work, thereby making him self‐employed and not a worker within the meaning of s230 of the Employment Rights Act 1996.

The Tribunal rejected this argument and found that the Claimant was a worker. On the facts of the case, although the Claimant was permitted to offer his slot to other approved drivers, he did not know who would pick up the slot, nor if anyone would pick it up. If the slot was not filled by another app user, the Claimant would remain responsible for completing the deliveries allocated for that slot. If he failed to do so, he would face consequences for his failure to complete the allocated slot.

The EAT confirmed that on these facts the Tribunal had been entitled to find that the Claimant was a worker and not self‐employed.

Whistleblowing: Martin v London Borough of Southwark

The EAT decision in Martin v London Borough of Southwark gives a useful summary of what is needed for a protected disclosure to be a protected disclosure:

• There must be a disclosure of information;
• The worker must believe the disclosure is made in the public interest;
• That belief must be reasonably held;
• The worker must believe that the disclosure tends to show one of the matters in s43B(1)(a)‐(f)
• Employment Rights Act 1996 has been committed
• That belief must be reasonably held.

It is vitally important when looking at a whistle‐blowing claim (public interest disclosure) to have a structured approach. It was clear that the five point test would provide that clear structured approach. It is also a useful illustration for employers to bear in mind should they face allegations in a claim that an employee was a whistleblower.

The EAT was also clear that a disclosure of information must have enough factual content to be a disclosure and specifically that disclosure of information must be capable of tending to show one of the factors in s43B(1).

Retirement ages: Pitcher v University of Oxford and University of Oxford v Ewart

Will it be unlawful age discrimination for an employer to set a retirement age under an Employer Justified Retirement Age (EJRA)? Not always, but sometimes said the decision in Pitcher v University of Oxford and University of Oxford v Ewart.

Two decisions of the Employment Tribunal, with two different outcomes. In Pitcher, a history professor who was retired at 67 under the scheme was found not to have been discriminated against. Whereas in Ewart a physics professors’ dismissal under the same EJRA was found to be discriminatory.

The EJRA had three specific aims:

• Inter‐generational fairness;
• Succession planning; and
• Promoting equality and diversity

The EAT found that the decisions of both Tribunals had been correct based on the facts before it. In the Pitcher case the aims of the EJRA were found to be a proportionate means of achieving a legitimate aim. In the case of Ewart evidence was adduced which showed that there were few vacancies produced by the EJRA meaning the aims in the case of the physics department was not a proportionate means of achieving a legitimate aim.

The EAT apologised for its findings that both decisions, albeit conflicting, were sound, but was clear that its role was to rectify issues in the law, not to provide consistency for employers. On the facts both Tribunals had made legitimate and lawful decisions.

This shows the complexity and dangers of having a one size fits all scheme and employers would be wise, even where a policy is in place, to look carefully at each individual case on its particular facts.

And finally…

An employer in Scotland has been taken to Tribunal on the grounds of using the phrase “calm down, calm down” in reference to the comic sketch character portrayed by Harry Enfield during the 1990s.

The Claimant a bus driver, did not attend work for two days and sent a message expressing his disgust at what he saw as being mocked for his nationality. He was later dismissed for amongst other things his unauthorised absence on those days.

The Judge hearing the claim, made finding that he had not been discriminated against because of his nationality as the phrase used was related to him being from Liverpool not because he was English. Whilst the Judge acknowledged the phrase may be offensive, it was not related to his nationality.

The claims were dismissed. Although in this instance the employer was not found to have discriminated against the employee on the grounds of his national origin, this claim will still have resulted in legal fees being incurred and of course some significant publicity. On the whole, it is better not to take on comic characters when dealing with employee relations.

If any of the matters raised in this newsletter raise any questions, please do not hesitate to contact us. Bye for now.

Lynsey and the team.

To contact Lynsey or join the employment law mailing list, please email LHowes@hamers.com