TUPE and Indirect Discrimination in Anne & Others v Great Ormond Street Hospital
EAT confirms leaving transferred staff on inferior terms can amount to indirect discrimination, even under TUPE.
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Case Study
In the recent case of Mr K Riggott -v- Cemex UK Operations Ltd: 1306401/2020, an employment tribunal has upheld a claim for unfair dismissal brought by an operative.
Mr Riggott had been accused of failing to apply due care and attention whilst driving the wheeled loading shovel, resulting in him hitting a stationary lorry and causing damage to it.
The lorry driver, who was employed by a third party, knew that he required permission from the claimant before entering the yard, however, he had not waited for authorisation. As such, the claimant would not have expected another vehicle to be present in that location.
The yard was noisy on the day in question and the claimant had been focussing on avoiding a collision with a different vehicle to his left whilst reversing. The claimant applied the brakes when he saw the lorry but was too late.
Although the employer accepted that the lorry’s presence in the yard was unauthorised, the respondent decided to terminate the claimant’s employment on the grounds that they believed he should have seen the lorry.
The claimant appealed the decision.
The appeal took place virtually via Skype and the claimant stated that the connection was poor. He was denied the chance to bring a witness to the appeal hearing as he had not done so at the disciplinary stage. He had decided against using a witness at the first stage as he had been led to believe that he would just receive a warning so therefore it was not required.
Case Study
The tribunal found that the dismissal was unfair because a reasonable employer would not have dismissed, given that:
The tribunal found that the appeal hearing lacked fairness because the appeal officer had approached the matter with a ‘closed mind’ as evidenced by the decision to not permit the claimant to bring a witness.
This case shows the importance of ensuring that sufficient weight has been placed on mitigating circumstances when considering whether to terminate employment. Employers would be well advised to ask, “to what extend do mitigating circumstances reduce the culpability of the accused employee?”
In the case highlighted, the evidence of recklessness was weak as the employee had taken care to avoid a different lorry in a busy yard, it was expected that the lorry would be there as it lacked authorisation, and he had applied the brakes in an attempt to avoid a collision.
The full case can be read here: https://www.gov.uk/employment-tribunal-decisions/mr-k-riggott-v-cemex-uk-operations-ltd-1306401-slash-2020
Should you require advice on conducting a disciplinary procedure, our team of employment lawyers can provide advice from the initial investigation through to any appeal outcome.
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