A few interesting cases to digest:

“Pulling a sickie” – it’s a risk that may result in dismissal: Metroline West Ltd v Ajaj; Ajaj v Metroline West Ltd (EAT)

This case provides a valuable recap for employers that suspect an employee is faking illness.  This case reaffirms that “pulling a sickie” is misconduct, rather than a capability issue.

The Employment Appeals Tribunal confirmed that when an employee makes up, or exaggerates the effects of, an injury or illness to take fraudulent sick leave then the employee is fundamentally breaching the implied term of trust and confidence and can be dismissed for misconduct.

As with any dismissal, in order for it to be deemed fair in law there must be a reasonable investigation and a reasonable and fair procedure followed. This case acts as a reminder that an employee on sick leave does not hold all the cards and mutual respect is a two-way street.

Perhaps the most controversial decision to come out of the Employment Appeals Tribunal last year is the case of: Pendleton v Derbyshire County Council and another (EAT) where religious discrimination was at issue

The Claimant, who was a teacher, was dismissed after she refused to end a relationship with her husband who was convicted of sex offences on the basis that her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith. The Employment Tribunal found that she had been unfairly dismissed but dismissed her discrimination claim, considering that no particular “disadvantage” had been shown.  Disadvantage being the legal test i.e.) has an employee been placed at a disadvantage due to his/her religious beliefs.  It was held that the Claimant would have been dismissed irrespective of whether she held a religious belief in the sanctity of her marriage vows. The Claimant appealed and was successful in her discrimination claim.

In this instance the Employment Appeal Tribunal (EAT) held that the dismissal of a teacher, who is Christian, because of her refusal to end her marriage with a convicted sex offender, was religious discrimination.  The EAT surprisingly suggested that a person of faith who believes in the sanctity of marriage can be placed at a “particular disadvantage” if the employer requires him or her to end a marriage with a convicted sex offender.

Another interesting case which is the first employment law decision on shared parental leave is the case of Snell v Network Rail:

When shared parental leave was introduced (last year), one of the biggest concerns amongst employers was whether enhanced contractual maternity policies meant that the same enhancements would have to be adopted for those on shared parental pay.

The general consensus was that employers that enhance maternity pay but not shared parental pay could be risking a sex discrimination claim from a man. Network Rail went one step further by differentiating between the mother and partner in the provision of enhanced shared parental pay.

The employment tribunal concluded that paying a male Network Rail employee only the statutory minimum shared parental pay, while his wife (also a Network Rail employee) received full pay, was blatantly discriminatory.  It might be time to dig out these policies to check that you are not opening your business up to a Tribunal claim.