June 2013 UK case law highlights: what employers need to do

Important decisions from the tribunals and appeal tribunals this month covered disciplinary investigations, compulsory retirement ages and age discrimination, and multiple grievances and victimisation. Below we provide brief summaries of the decisions and highlight three important lessons for employers who are dealing with these matters.

  1. Ensure that a disciplinary investigation is sufficiently thorough
  2. Gather supporting evidence if relying on a particular aim to justify a retirement age
  3. Remember that a dismissal because of protected acts (eg multiple grievances) will amount to victimisation

1. Ensure that a disciplinary investigation is sufficiently thorough

In Miller v William Hill Organisation Ltd, the EAT has reminded employers dealing with allegations of criminal behaviour to carry out a sufficiently thorough investigation that takes into account both evidence against the employee and evidence that may exonerate the employee. How far an employer should go in terms of an investigation will depend on the circumstances of the case, including the time it will take, the expense involved and the consequences for the employee if he or she is dismissed. In this case, the employer should have examined the whole of the CCTV footage that was relevant to the alleged misconduct.

In City and County of Swansea v Gayle, the employer conducted covert video surveillance on the claimant when it suspected that he was playing squash during work time, while claiming payment for being at work at the time. The employment tribunal found that the use of covert surveillance in the investigation was unnecessarily thorough. However, the EAT disagreed and held that an unnecessarily thorough investigation is unlikely to make a dismissal unfair unless the nature of the investigation makes the dismissal unfair in some other way.

2. Gather supporting evidence if relying on a particular aim to justify a retirement age

In the final chapter of the long-running case of Seldon v Clarkson Wright & Jakes, which related to the justification of a compulsory retirement age for partners in a law firm, the employment tribunal has concluded that a requirement for partners to step down at 65 was justified.

Although this tribunal decision is fact sensitive and based on circumstances that arose before the abolition of the default retirement age on 6 April 2011, it highlights the need for employers to carefully weigh up their own needs, those of the retirees, and those of staff coming up through the ranks. An employer that is relying on a particular aim to justify a retirement age should back this up with supporting evidence. For example, if the aim is to retain less senior staff, the employer should be prepared to present concrete evidence that those members of staff are likely to leave if opportunities for promotion are restricted.

3. Remember that a dismissal because of protected acts (eg multiple grievances) will amount to victimisation

In Woodhouse v West North West Homes Leeds Ltd , the EAT has held that where multiple grievances are made in good faith, albeit they are ill founded, they are protected acts for which the employer cannot subject the employee to a detriment, eg dismissal. Employers will no doubt sympathise with the employer in this case, where the claimant raised multiple internal grievances and employment tribunal proceedings against his employer, all raising allegations of race discrimination, over a period of four years. However, the case is a reminder that, provided a grievance or tribunal claim is not made in bad faith, it will amount to a protected act for the purposes of victimisation even where it is ill founded or forms a series of multiple grievances or claims.

Claimants argue that nut allergy and eczema are disabilities A round-up of links to stories about employment tribunal rulings reported in the week beginning 17 June 2013, including tribunal findings that a serious nut allergy and severe eczema are disabilities under the Equality Act 2010.

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