August 31, 2018

U.K. Employment Law Update: Notice of Termination, Disability Discrimination and Summary Dismissals

When Is Notice of Termination Effective?

In Newcastle Upon Tyne NHS Foundation Trust v Haywood [2018] UKSC 22, the U.K. Supreme Court upheld last year’s Court of Appeal decision, reported by us here, that where an employment contract is silent on when notice is deemed effective, it takes effect when the employee reads it or, if earlier, when they had a reasonable opportunity to do so.

As a reminder, in this case Ms Haywood was on holiday when her employer sent notice of termination by recorded delivery and standard post to her home address, which she read on her return from holiday a few days later. The issue that arose was whether notice was deemed effective when it was delivered to her home or when she read it. The Supreme Court has now confirmed that it was the latter. 

In light of the uncertainty that can arise when sending notice by post, employers should, where possible, deliver notice personally. It is important to note, however, that this case concerned contractual rights only and that different rules apply when determining the “effective date of termination” for the purpose of statutory employment claims.

The Latest on Discrimination Arising From Disability

In City of York Council v Grosset [2018] EWCA Civ 1105, the U.K. Court of Appeal considered whether discrimination had occurred where an employer dismissed a disabled employee for misconduct when it was unaware that the misconduct had been caused by the disability.

Mr Grosset was an English teacher in a secondary school. He suffered from cystic fibrosis (a disability under U.K. discrimination law) and the school had for some time made reasonable adjustments to his working pattern on account of his condition. When a new head teacher was appointed, however, changes were implemented which led to an increase in Mr Grosset’s workload. This caused him to suffer from stress, which in turn exacerbated his cystic fibrosis. During this period of stress, he showed an 18-rated film to a class of minors which ultimately led to his dismissal for gross misconduct.

Mr Grosset claimed that he had been discriminated against because he was dismissed for an act that had been caused by his disability. The school argued that it had not discriminated against him because at the time of the dismissal it did not know that his disability had caused that act.

The Court of Appeal held that Mr Grosset had been discriminated against because of “something arising from” his disability, namely he was dismissed for showing an adult rated film to a class of minors, which was an act of misconduct caused by his disability. Whether or not the school had been aware that Mr Grosset’s misconduct had occurred in consequence of his disability was irrelevant.

In light of this decision, any employer looking to take disciplinary action against a disabled employee would be well advised to obtain medical advice on whether the misconduct might have been caused by the employee’s disability.

Summary Dismissal Where There Is No Single Act of Gross Misconduct

In Mbubaegbu v Homerton University Hospital NHS Foundation Trust UKEAT/0218/17, the Employment Appeal Tribunal (EAT) considered whether a summary dismissal for misconduct had been fair where there was no single act of gross misconduct. 

Mr Mbubaegbu was a surgeon at Homerton University Hospital for 15 years with an unblemished record. The Hospital introduced new rules to address departmental dysfunctionality and informed consultants that their compliance would be monitored. An external HR investigation found events of non-compliance by Mr Mbubaegbu and four other consultants, which led to disciplinary action against them. Mr Mbubaegbu was the only consultant to be summarily dismissed for gross misconduct. He brought a number of claims, including for unfair dismissal, which were dismissed by the Employment Tribunal. Mr Mbubaegbu appealed to the EAT in respect of the unfair dismissal claim on the ground that there had been no single act of gross misconduct.

The EAT dismissed the appeal, holding that it was possible for a series of acts to be sufficiently serious to undermine the term of trust and confidence implied in all employment relationships, whether or not there was any single act amounting to gross misconduct. The EAT held that the implied term of trust and confidence had been undermined because some of Mr Mbubaegbu’s activities had been grossly careless and negligent, amounting to a pattern of unsafe behaviour with increased risk to patients.

Although this case will be welcomed by employers, they should exercise caution before dismissing any employee where there is no clear act of gross misconduct; whether a dismissal is fair will always depend on the facts of a particular case.

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