Dobson v North Cumbria Integrated Care NHS Foundation Trust (UKEAT/0220/19)
The Claimant was employed by an NHS Foundation Trust (the Trust) as a community nurse. She was a mother of two disabled children and only worked on Wednesdays and Thursdays. The Trust asked its community nurses to work flexibly, including occasional weekends. The Claimant refused due to her childcare commitments and was dismissed. She brought a claim for unfair dismissal and indirect discrimination. In a landmark ruling it was held that Employment Tribunals must take into account the fact that women carry the greater burden of childcare responsibilities, particularly in respect of indirect discrimination claims.
Employers should always consider personal circumstances, including childcare when it comes to varying an employee working patterns. It is evident from this ruling that by dismissing an employee on the basis of their inability to work varied or flexible hours will leave employers at risk of indirect discrimination claims and unfair dismissal claims. It is important to take legal advice when varying contract terms to reduce risks associated with claims.
Gavli & Anor v LHR Airports Ltd (UKEAT/0012/21)
The Claimants were dismissed as passenger service operatives. At the disciplinary hearing they were presented with generalised allegations that they had bullied, harassed and intimidated new starters (i.e. they were not presented with specific allegations of who they had allegedly bullied nor the specific conduct that was alleged to constitute bullying). The Employment Tribunal found the dismissals were unfair. The employer had failed to articulate what the Claimants were said to have done wrong and further had failed to identify what had been alleged which ultimately impacted on the fairness of the investigation.
This case highlights the importance of ensuring that employees subject to disciplinary hearings understand the allegations made against them. It further demonstrates that if employers are faced with a tribunal claim that they are able to clearly and specifically articulate why they chose a particular outcome over another.