Important case law developments – January 2018

(1)    Discrimination based on a perceived disability found as unlawful

In the case of Chief Constable of Norfolk v Coffey, the Employment Appeal Tribunal (EAT) upheld the decision made in the Employment Tribunal that a police officer did suffer direct discrimination because of a perceived disability.

This came after Lisa Coffey’s employer refused her a transfer as there were concerns that she would end up on restricted duties, this was due to her hearing loss being slightly below the medical standard for police recruitment.

In this judgement the EAT held that Norfolk Constabulary was wrong to have denied an application for a transfer from Lisa Coffey because of her hearing impairment.

The employer’s decision in this case suggested that he perceived his employee to be suffering from a progressive condition, which could advance and as a result, have a substantial impact on her ability to conduct day-day activities. Under the Equality Act 2010, this amounts to the statutory definition of ‘disability.’

Employers should note from the decision in this case that disability discrimination works in the same way as any other form of discrimination.

The EAT stated that: “There would be a gap in the protection offered by equality law if an employer, wrongly perceiving that an employee’s impairment might well progress to the point where it affected [his or her] work substantially, could dismiss [him or her] in advance to avoid any duty to make allowances or adjustments.”

(2)    Employer found vicariously liable for an employee’s disclosure of personal data

The High Court held in the case of Various Claimants v Wm Morrisons Supermarket Plc, that the employer was vicariously liable for a rogue employee who deliberately released personal data of other colleagues.

Where there is an adequate connection between the employment relationship and wrongdoing, employers will be held liable for acts committed by the employee under the doctrine of vicarious liability.

This case decision submits that where an employer has done as much as reasonably possible to prevent the misuse of data, they may still be held responsible for the employee who misuses it, even in the event that the misuse has been predetermined to damage the employer.

Since this ruling, Morrisons have announced that they will be appealing the decision and have been given leave to appeal to the Court of Appeal.

(3)    Pre- termination negotiations

In the case of Basra v BJSS Ltd, the Employment Appeal Tribunal established that the Employment Tribunal had been wrong to rule out evidence of pre-termination negotiations governed under s11a of the Employment Rights Act 1996 when concluding the effective date of termination of an unfair dismissal complaint. Where negotiations occur prior to the termination of employment, statutory exclusions will apply and therefore, cannot be invoked until the final termination date has been confirmed.

The decision in this case emphasizes the importance of ensuring the wording in any form of communication with employees is carried out carefully, whether on an open or without prejudice basis.

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Please note, the information in this article is for guidance purposes only and it is therefore advised that employers seek legal advice before embarking on any enforcement action.