In this round up of recent cases, we consider a Court of Appeal decision that a nurse had been unfairly dismissed for making lewd comments; an Employment Appeal Tribunal (EAT) decision on whether an uplift can be applied to funds paid pursuant to an oral employment tribunal (ET) judgment; and a ruling by the Deputy Pensions Ombudsman regarding the tapering of lump-sum redundancy payments for those aged between 57 and 60.

Lewd behaviour did not justify dismissal

The Court of Appeal, overturning the decision of the EAT, has held that the employment tribunal was right to find that a nurse was unfairly dismissed for making inappropriate comments whilst straddling a patient in order to restrain him (Bowater v NW London Hospitals NHS Trust).

Ms Bowater was forced to undertake an improvised method of restraint on a patient who was fitting, in order to allow a doctor to administer an injection and while doing so made a lewd comment.  The employer deemed the remark to be inappropriate and dismissed her for gross misconduct. The Court of Appeal placed particular importance on the context in which the remarks were made, noting that this was a particularly stressful experience occurring at the end of a 12-hour shift.  Ms Bowater had in fact been under no obligation to step in and help, as she was on her way out the door when the incident occurred. The remarks were not directed at the patient, and there were no members of the public present to hear the comments.

The Court of Appeal re-iterated that it is up to the tribunal to reach its decision based on whether it thinks dismissal was within the band of reasonable responses open to a reasonable employer. The tribunal in this case had clearly demonstrated their awareness of the context in which the events took place and that they were aware of the appropriate test to apply. 

Payment of agreed award did not prevent uplift

The EAT has held that, when a payment is made pursuant to a tribunal judgment and is therefore not an interim payment, it does not reduce the amount of the award to which an uplift can be applied.

In University of the Arts London v Rule, Mr Rule brought a successful race discrimination and unfair dismissal claim against his former employers.  Prior to the remedies hearing, the University made interim payments of around £65,000 to Mr Rule. At the remedies hearing, the tribunal delivered an oral judgment (later to be confirmed in a written judgment) setting out the full extent of the sums to be paid to Mr Rule. It also provided for an uplift of 45% under a section of the Employment Act, which has subsequently been repealed.

There was an adjournment to allow the parties to calculate the figures for loss of earnings, pension and interest.  A figure was agreed and then, on the day of the resumed hearing, the respondent arranged (without the knowledge of the claimant) for the full outstanding amount, less the uplift, to be transferred to the claimant by bank transfer. When the hearing re-commenced, the respondent submitted, relying on Tim Arrow & Sons v Onley that, as all the compensation had been paid, there was nothing outstanding to which an uplift could be applied.

The Tribunal saw through this somewhat underhand attempt to avoid having to pay the uplift, ruling that the amount on which an uplift was to be applied was the whole amount set out in the oral judgment, minus the interim payments.  This case confirms that a respondent cannot "ambush" a claimant by making last second payments in order to avoid or minimise the effect of an uplift.  The EAT also confirmed that a claimant is entitled to refuse payment, hoping to preserve any future uplift.   Although the applicable statutory provisions in this case relating to uplift have since been repealed, the case still has relevance to employers as similar provisions exist allowing an uplift of up to 25% to be awarded if an employer has unreasonably failed to follow the ACAS Code of Practice on Disciplinary and Grievance procedures.

Tapered reduction of contractual redundancy payment amounts to age discrimination

The Deputy Pensions Ombudsman has ruled that the tapered reduction of lump-sum redundancy payments for those aged 57 and over was unjustifiable age discrimination under the Employment Equality (Age) Regulations 2006 (Determination in complaint by Mr D Johnson).

Mr Johnson, a civil servant aged 57 years and one month, was entitled to a lump sum payment of six months' final pensionable pay, under the Civil Service Compensation Scheme, when he was made redundant in April 2007. However, a policy was in place that provided for the tapering of the payment progressively to zero between the ages of 57 and 60 and his payment was reduced accordingly.  The Ombudsman upheld his complaint, seeing no reason not to reach the same decision as the employment tribunal in another case relating to a former civil servant (Wallis v The Cabinet Office).  In that case the employment tribunal had not been satisfied that there was a legitimate aim for the tapering and that, even if there had been, tapering was not a proportionate means of achieving it.  Tapering seemed merely to be a cost-saving exercise, which did not on its own amount to justification.

This case highlights the differences in timescale within which complaints must be brought. Claimants to an employment tribunal must lodge a complaint within three months of leaving employment, but the limitation period for a complaint to the Ombudsman is three years. Employers should be aware that the option of a complaint to the Ombudsman will be available to the employee where the tapering measures are linked to a pension scheme.  The Deputy Ombudsman held that Mr Johnson's failure to complain to the employment tribunal did not bar his complaint to the Ombudsman.

Employers should note that in some circumstances it may be possible to justify the tapering of lump sum redundancy payments.  If it can be shown that there was a legitimate aim, for example trying to ensure that employees nearing retirement age do not receive a windfall, then, if they amount to a proportionate means of achieving that aim, the measures may be allowed to stay in place (see, for example, the decision in Loxley v BAE Systems). However, to date, it has proved to be difficult for employers to succeed in justifying such schemes.

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