As our regular readers will know, here at ViewHR we like to keep an eye on interesting cases that have been heard by the Employment Tribunals (ETs) and the Employment Appeals Tribunal (EAT), so that we can identify key judgements that may impact upon our clients.
In this latest blog we look at the implications for employers of recent cases involving spare food and debilitating migraines.
Mortey v DPD Group
This case concerns Mr Mortey, a DPD depot operative, who was dismissed after taking home unclaimed food at the end of his shift, rather than placing it in the general waste skip. The employer had obtained a CCTV recording of Mr Mortey taking the food, and Mr Mortey did not deny doing so. However, Mr Mortey claimed unfair dismissal, stating that managers had previously given him permission to take unclaimed food.
The ET found that senior bosses responsible for Mr Mortey’s dismissal “did not carry out a reasonable investigation into the circumstances” of the incident. Whilst they did not determine whether or not there was actually a culture of unclaimed food being taken home at the DPD depot in question, they were satisfied that the investigation undertaken was insufficient to determine whether this was the case. As such, the ET found in Mr Mortey’s favour.
The case provides an important reminder that whilst the camera may not lie, it may also not tell the full story. Even with video evidence of potential employee misconduct, it is still important to undertake a full investigation to ensure that all relevant factors are taken into account prior to making a decision.
Doran v Pearl Holdings
This case concerns Miss Doran, a former employee of Pearl Holdings. Miss Doran was at work one day when she experienced a debilitating migraine. Miss Doran suffered from migraines regularly (approximately once a week), and her symptoms included weakness, nausea, severe pain, and dizziness. Her symptoms were so severe that she would sometimes need to lie down on the floor.
In February 2021, Miss Doran became very unwell with a migraine attack whilst at work. Her employer refused to allow her to go home, and instead sent her to lie on the floor of the stockroom for approximately two hours. No medical assistance was offered or sought, and Miss Doran was eventually collected from work by a friend, who found her unable to speak and with a degree of paralysis affecting her ability to move.
The employee was signed off sick for 14 days, and when she was well enough to return to work, was informed by text: “No hours available Mary… unfortunately I think you need to possibly step down from the role with all the health issues you have currently, also the impact not only to yourself but the store team and having to step in at short notice your level of sickness is very high, and the unpredictability of your health and safety is worrying for you and myself, when your sick note is up I won’t be able to guarantee you hours”.
Miss Doran was awarded £15,998.96 by the ET because how she was treated arose in direct consequence of her migraines, which met the definition of a disability under the Equality Act 2010. The employer was also found not to have made reasonable adjustments in respect of her disability.
This case provides a number of important reminders for employers. First, persistent illnesses may meet the definition of a disability under the Equality Act; an employee does not have to be unwell every single day to be legally classed as disabled. Second, reasonable adjustments are a legal obligation, even if viewed by the employer as inconvenient. And last but not least, Miss Doran had only been employed a short time when the above events occurred, however, because her claim related to disability discrimination, the usual threshold of two years of service for an employee to bring an ET claim did not apply in this case.
Readers may also have heard that there has been a recent Supreme Court judgement regarding the calculation of annual leave for term-time employees. For those interested to learn more, we have a feature blog on this topic coming soon, so watch this space!
If you are an employer and would like support with any of the topics considered in this blog, please do not hesitate to contact a member of the ViewHR team today.
