What are the issues of redundancy after a period of absence

I read an article recently concerning the case of Charlesworth v Dransfields Engineering Service Limited (2017) UKEAT/0197/16/JOJ.

The case relates to a redundancy situation back in 2014 but the appeal was not heard by the Employment Appeal Tribunal (EAT) until January 2017. The situation is one that we have frequently given advice on; an employee was absent from work for some time, and this absence allowed the respondent to identify the possibility of restructuring the business in a way that deleted the absent employee’s post from the business and therefore saved costs (something like £40,000 in this case).

The employee (Charlesworth) who made the claim was employed by the respondent (Dransfields Engineering Service Limited) as a Branch Manager. Importantly the business was not achieving any level of profitability. The claimant developed renal cancer and was absent for two months due to having an operation. As you will be aware from previous Broadcasts the condition of cancer is automatically a protected characteristic in terms of disability.

After the period of illness the employee returned to work fit and was able to fulfil his role, however the employer, having undertaken a review, commenced consultation over the proposal for redundancy for the Branch Manager and unfortunately he was eventually dismissed on the ground of redundancy.

The case went to an Employment Tribunal (ET), at which the claimant argued that this was a sham redundancy in that there was no redundancy situation, and that the real reason for the dismissal was because of the disability. This claim was rejected by the ET. The ET found that the possibility of a restructuring that would enable cost savings to be made became apparent as a result of the claimant’s absence. However, the ET concluded that the claimant’s absence resulting from his disability was not an operative cause of his dismissal for redundancy.

The claimant appealed his case to the EAT on the basis that the original ET had failed to apply the correct causation test when dealing with Equality Act 2010 s.15. It was submitted that a cause or influence (however significant) is sufficient to constitute or to fulfil that requirement that it is “because of something arising in consequence of the disability“. It was argued that any cause, even if it does not operate on the mind of the putative discriminator and is therefore not an effective cause, is sufficient to satisfy section 15.

The EAT held that the causation requirement in Equality Act 2010 s.15 involved a two-stage approach.

  1. There must be something arising in consequence of the disability;
  2. The unfavourable treatment must be because of that something.

The question raised by the appeal was whether something less than an operative cause or influence is sufficient to satisfy the requirement that the unfavourable treatment is because of the relevant something. To the extent that it was being argued that a mere influence is sufficient, such an argument was not accepted by the EAT. The statute requires the unfavourable treatment to be because of something; nothing less will do. Provided the something is an effective cause (though it need not be the sole or the main cause of the unfavourable treatment), the causal test is established.

In this case, the ET had expressly accepted that in considering an Equality Act 2010 s.15 complaint it is not necessary for the claimant’s disability to be the cause of the respondent’s action, and that a cause need not be the only or main cause provided it is an effective cause. The EAT stated that there was no error of law in the ET’s approach.

The ET was entitled to ask whether the claimant’s absence, which it accepted arose in consequence of his disability, was an effective cause of the decision to dismiss him. To put that question another way, as the tribunal did, was the claimant’s sick leave one of the effective causes of his dismissal?

The ET accepted that there was a link between the claimant’s absence through illness and the fact that he was dismissed, the link being that his absence afforded the respondent an opportunity to observe that it could manage without anybody fulfilling the claimant’s role as Branch Manager. Nevertheless, the ET said that was not the same as saying that the claimant was dismissed because of his absence. This was a case where, on the facts found by this tribunal, it felt able to draw a distinction between the context within which the events occurred and those matters that were causative.

It is worth noting that the EAT commented that there will doubtless be many cases where an absence is the cause of a conclusion that the employer is able to manage without a particular employee and in those circumstances is likely to be an effective cause of a decision to dismiss even if not the main cause. This, however, does not detract from the possibility in a particular case or on particular facts, that absence is merely part of the context and not an effective cause.

If you have any employee concerns and would like to speak to me please contact the office on 01522 81 5100 and they will be able to direct you.


Slips, trips & falls

In 2002 20.2% of all reportable injuries were as a result of slips, trips and falls; this is second only to Manual Handling injuries which were at 36.9%. By 2010 this number has increased to 37%, with 28% of all fatalities in the workplace being as a result of slips, trips and falls. By 2012 slips, trips and falls accounted for 53% of all major reported injuries.

Regretfully, the Co-op has been heavily fined following an accident in which a customer was killed in a slipping accident. In July 2015 74-year-old Stanley May visited the Truro branch of the Co-op. In the chilled food aisle there was a wet area of flooring where water had been leaking from a faulty sandwich chiller. Mr May slipped over, striking his head. He died two days later in hospital.

We all know that it is not uncommon to see a slippery floor in a supermarket; this can be for a number of reasons; cleaning activities, dropped fruit, product spillages or leaking equipment. In my experience supermarkets, in general, act very quickly in dealing with any spillages and will have a supply of mops and buckets, wet floor signs, matting, etc. at the ready. However, in this case in Truro the chiller had been leaking for 44 hours prior to the accident but customers had been allowed unrestricted access to the area.

Management had initially taken the correct approach by attempting to stop the leak at source. Engineers had been called in when the machine broke down, but it had continued to leak. Staff had also put up a wet floor sign. However, the prosecution explained that the wet area of flooring extended beyond the sign so this appears not to have been adequate as a means of risk control.

Any risk assessment should examine the hazards associated with those at risk; visitors, young people, employees, etc. and in any public place, like a supermarket then the risk assessment should be extended to consider the elderly, disabled, people pushing prams, etc.

In this particular case the supermarket should have done more and the Co-op pleaded guilty to a charge of failing to protect members of the public, under section 3 of the Health and Safety at Work etc. Act 1974. It was fined £400,000 and ordered to pay prosecution costs of £50,000.

As the statistics above show, slips and trips are the single most common cause of major injury accidents in UK workplaces, therefore wet floors need to be treated seriously and with urgency.

There is a logical order in which to control and then eliminate the hazard.

  1. Fixing the leak
  2. Removing the source
  3. Contain the liquid in a tray
  4. If the wet floor cannot be avoided, or if there will be a delay in making the area safe, staff should follow pre-determined procedures.
  5. Following the clean-up, the floor should be left as dry as possible and then a wet floor sign displayed.

If you would like more advice on employee or health & safety issues please contact Andrew Tomlinson on 01522 815100.


What is a days pay?

I was recently asked the question … “How do I calculate a days pay?”

Apparently an employee had used up their holiday entitlement but had then been offered the opportunity of going to a Test match at the Oval for the day. The employee had asked for this day to be counted as “unpaid leave” and the employer had no objections to this but was confused as to how to calculate a day’s pay.

My immediate thought was to do a simple calculation;

52 weeks in the year multiplied by 5 days per week gives 260 working days, therefore one day of unpaid leave is simply 1/260 x annual salary.

However, before I answered the query I thought it best to do some research, and I found that this calculation was used in Hartley v King Edward V1 College 2017; in this case it was a deduction from pay following a one-day strike.

The Court of Appeal had also used the same 1/260 approach as I had, but I found that the employees involved had appealed this method to the Supreme Court.

The Supreme Court overturned this calculation and held that, in the absence of any express contractual wording to the contrary, the correct rate of deduction is 1/365th of the employee’s annual salary. It also stated that this 1/365th approach does not apply where an employee on an annual contract has a set hourly rate rather than a fixed salary.

For more information about human resources or to discuss a particular employee issue please contact Andrew Tomlinson on 01522 815100.

Head of Human Resource at Nicholsons Chartered Accountants Lincoln HR


Homeworkers – do you regularly work from home?

In terms of Health & Safety there is a difference between an employee who is a “homeworker”, and an employee who “works from home”.  So what is the difference and why is the difference so important?

A homeworker is an employee who regularly works from home and as a result they should be treated the same way as other employees. The homeworker would typically have their home as their permanent working base. Full risk assessments of all work activities must be undertaken, including appropriate Display Screen Equipment risk assessments by a competent person. Any hazards highlighted by the risk assessment process must be addressed so that the level of risk can be reduced as much as possible or “so far as is reasonably practicable”. Failure to follow this may lead to homeworkers being injured or suffering from ill-health.

An employee who “works from home” is someone who has their permanent place of work situated away from their home but, at times, just happens to undertake work at home. This is typical of the employee who takes a file home to read in the peace and quiet of their home, possibly in the evening after dinner.

To help identify the hazards associated with the “homeworker” it may be helpful to have a check list of all typically associated hazards and more importantly the appropriate ways of consistently controlling each activity and how to control or reduce risks to an acceptable level. You should ensure that your document only addresses “significant” hazards, i.e. any hazard that could, and more importantly is likely to, cause an accident or injury.

You may require the assistance of a competent health & safety practitioner.

When assessing the hazards, as with all risk assessing, you do not need to include activities that simply do not need to be there. However, keep in mind that if there is any chance of your employee being unaware of the safe way of doing something, then you will need to make it clear what the safe way is. As with any risk assessment, any control measure can only be to the level of “so far as is reasonably practicable”.

Listing every single hazard will be impossible; however, you should be able to document all “significant” hazards that are likely to be identified with your employee working at home. Please remember that you may have a list of generic risks associated with homeworking but as with all risk assessments you need to examine whether any individual, peculiar risks are present. The risk assessment should take into consideration the actual tasks that your homeworkers carry out on your behalf. I would recommend that these risk assessments are carried out in conjunction with the individual homeworker so that the requirement are fully understood.

Head of Human Resource at Nicholsons Chartered Accountants Lincoln HR