Change of plan – redundancy four months after TUPE transfer was for ETO reasons

The claimant in Davies v Droylsden Academy was a venue lettings manager for a company which provided premises services for schools. She was the manager responsible for Droylsden Academy's premises.  In the summer of 2014 the Academy decided to take the contract in-house and told the claimant at a meeting in September that after the TUPE transfer there would be no role for her as her job would be done by existing school staff.

The TUPE transfer took place on 1 November but no arrangements were made for her to take up employment (nor did she attend work at the Academy because she was allowed to remain at home); she was not given any instructions, or paid as she should have been. Meanwhile her role was being performed by three members of Academy staff. She was made redundant in March 2015.

The Tribunal concluded that the transfer was not the sole or principal reason for the dismissal (if it had been, it would have been automatically unfair). The Academy did not want to have a dedicated manager for the lettings business once it was taken in-house, preferring to distribute the claimant's management duties among existing members of staff. That amounted to an organisational change that would result in the loss of a dedicated manager as part of the Academy's workforce. The dismissal was therefore for an ETO reason – an organisational reason entailing changes in the workforce. The redundancy process was fair.

In the EAT, the claimant argued that she was pre-selected for redundancy by the Academy's Principal who did not want her after the transfer. Her main duties had been allocated to an existing member of staff in the run-up to the transfer and although there was a lengthy process following the transfer at the end of which the Academy's HR consultant took the decision to make her redundant, her fate was sealed before the transfer.

Somewhat reluctantly, given the way she had been treated at the time of the transfer, the EAT rejected this argument. The Tribunal's reasoning had been clear – the reason for her dismissal related to her role being redundant as a result of the restructure; and this was an ETO reason.

The fact that no arrangements were made for the claimant to take up employment and she was not paid did not mean that her employment had not transferred. The Academy may have been in breach of contract entitling the claimant, if she chose to do so, to resign and claim constructive dismissal. The EAT commented that a claim may well have been successful – but the claimant did not resign.

It was clear that the HR consultant made her own assessment of the situation and took the ultimate decision to dismiss. The fact that three existing members of staff had carried out the role since 1 November and that the claimant had not performed any of those duties formed the underlying basis for her conclusion that the role was no longer needed.

The EAT also agreed with the Tribunal that the Academy's decision that the pool for redundancy should be limited to the claimant, rather than broadened to include other members of staff who were performing the lettings management function alongside their existing duties, was a reasonable one. Lettings management formed only a small part of their roles, in contrast to the claimant, who was in the unique position of being solely a lettings manager. 

No half measures – duty to make reasonable adjustments not limited to complying with request for compressed working

The claimant in The Home Office v Kuranchie spoke to her employer about her disability (dyslexia) and how she had to work long hours to enable her to get her work done. In response her manager said he would arrange for her to have specialist equipment at her desk. The claimant then emailed her manager requesting a flexible arrangement whereby she worked compressed hours – a 36-hour week over four, rather than five, days. She said that at this stage she believed that this was the only adjustment that would be required. The request was approved. 

When she later brought a claim for disability discrimination the Tribunal found that the employer had a practice of giving the claimant the same volume of work as her colleagues. This placed her at a substantial disadvantage compared to her non-disabled colleagues because, in order to complete her work, and due to her disability, she had to work longer hours than they did. The employer should have made the reasonable adjustment of reducing her workload in order to remove this disadvantage.

In the EAT, the employer argued that the Tribunal should have taken a holistic approach to the question as to whether they had made reasonable adjustments, rather than just accepting that they should have made that particular adjustment. Neither the dyslexia report the claimant had shown to her employer, nor the claimant herself, had suggested a reduced workload.

The EAT rejected this. It was clear that the steps taken by the employer did not remove the disadvantage; so the critical question was whether the adjustment identified – reduced workload – was a reasonable adjustment. It didn’t matter that it had not been suggested by the claimant before the Tribunal hearing.

This case is a neat illustration of the heavy burden on employers in reasonable adjustment cases. It is not up to the employee to suggest adjustments – the duty to make reasonable adjustments falls on the employer. And in the tribunal, once the claimant or tribunal has suggested an adjustment that should have been made, the employer must prove that it was not reasonable.

Nowhere to hide – employee who shared confidential information could not rely on his union rep protection

Metrolink RATPDEV Ltd v Morris was a case about section 152 of TULRCA – dismissal for taking part in trade union activities is automatically unfair.

The claimant was a Workers of England Union representative at the company. In June 2014, as part of a restructuring exercise, 14 employees were evaluated at an assessment day, to determine whether they should be offered one of 12 customer service team leader positions. Of the five candidates who failed the assessment, four were members of the claimant's trade union. A formal collective grievance about the assessment exercise, raised by the claimant in his capacity as union rep, was resolved at a meeting in July.

In August 2014 someone took a photograph of confidential notes about the assessment exercise in a diary belonging to the claimant's line manager, without his knowledge or consent. One of the four who failed sent a copy of the image to the claimant, apparently at the claimant's request.

An investigation was conducted and ultimately the claimant was dismissed for gross misconduct because he had stored and shared confidential information. The Employment Tribunal decided that the claimant was taking part in trade union activities by storing the information and raising it on behalf of members and that therefore his dismissal was automatically unfair under section 152.

The EAT overturned the Tribunal's decision.  Not every act carried out for trade union purposes falls within the scope of section 152, as the ACAS Code of Practice on time off for trade union activities makes clear. Dismissal for the retention of unlawfully obtained information is not generally protected. If the unlawfulness played a small part in union activities, or if the element of unlawfulness was not deliberate, then storing and sharing unlawful material might not lead to the loss of section 152 protection. But in this case the reason for the dismissal was that the claimant had stored and used or disseminated information that was private, confidential and had been taken from the manager without his permission – in effect, stolen.

The chronology was also important – the grievance about the restructuring had been resolved before the claimant received and stored the information. The claimant was well aware that the material that he had received was confidential and he knew how seriously the company regarded confidentiality – just before the disciplinary investigation leading to his dismissal there had been an inquiry into Twitter postings from his wife containing information sensitive to the business, in respect of which the claimant had (the Tribunal found) not been entirely exculpated.