Channel Islands Employment Law Update: January 2022

• Published date: 01 February 2022
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Contract of Employment, Discrimination, Disability & Sexual Harassment, Unfair/ Wrongful Dismissal, Employee Benefits & Compensation, Employment and Workforce Wellbeing
• Law Firm: Ogier
• Author: Ogier

Jersey

Disability discrimination: no disadvantage to deaf resident in the provision of property services

In Kathleen Fortun v G4S Secure Solutions (Jersey) Limited, ¹ the Employment and Discrimination Tribunal (the Jersey Tribunal) found that the claimant was not treated less favourably than a non-disabled comparator and her complaint of direct discrimination failed.

The claimant was dissatisfied with the way her residential parking complaint was handled by the respondent, alleging that they refused to communicate with her by email and that they closed her complaint without resolving it and refused to engage with her any further.

The Jersey Tribunal determined that (i) the claimant was disabled within the meaning of the Discrimination (Jersey) Law 2013 (the Discrimination Law) and (ii) that the respondent did provide services to the claimant within the scope of the law (despite having no direct contract with the apartment residents) and that in providing those services, the respondent was obliged to act in a manner that is consistent with the Discrimination Law.

The Jersey Tribunal went on to consider whether the respondent had a duty to make a reasonable adjustment where a provision, criterion or practice puts a disabled person at a substantial disadvantage. The claimant asserted that the respondent wanted to speak to her on the phone which was not possible due to her hearing loss. However, the Jersey Tribunal found that there was no substantial disadvantage - the respondent was clear that it was willing to communicate by email; it did not suggest that telephone was the only mode of communication and the claimant had either misread or deliberately misinterpreted the respondents reply.

The Jersey Tribunal also highlighted that the obligation to make a reasonable adjustment in the provision of services only applies if the service provider knows or reasonably should have been expected to know about the disability. As a result, it was not discriminatory to suggest a phone call when the respondent did not know at that time that the claimant was deaf. A reasonable adjustment was made in that all later communications from the respondent made it clear that email communication was acceptable.

The Jersey Tribunal also considered whether closing the parking complaint was direct discrimination (less favourable treatment because of a protected characteristic, in this case that the claimant was treated less favourably than a comparator in identical circumstances who is not deaf). However, having been unable to obtain any further information from the claimant that would allow action to be taken in relation to the parking issue, the Jersey Tribunal concluded that the respondent was entitled to close the complaint and refuse any further communication.

Interestingly, this case was heard on the papers alone with no hearing, potentially a "reasonable adjustment" in the provision of the Jersey Tribunal's services.

Further investigation could be "dispensed with" in case of gross misconduct justifying summary dismissal

In Gordon Mullan v Newtel Limited, ² the Jersey Tribunal rejected the claimant's claims for unfair dismissal, wrongful dismissal, breach of contract for failing to follow company disciplinary procedure, unlawful deduction from wages and accrued but unpaid holiday pay.

In summary, the claimant's position was that he witnessed the respondent's company van being damaged in an accident when it was being driven by another employee who had no driving licence. On informing the respondent of the accident, the claimant said that he was instructed to report that he was driving the van so that an insurance claim could be made. The claimant alleges that, when he refused, he was given an ultimatum of either resigning with a settlement agreement (with a sum of eight weeks' pay) or being subject to a disciplinary investigation. He rejected the settlement and was then summarily dismissed.

The respondent denied the claim. As part of its investigation into the incident with the van, the respondent discovered that the claimant had encouraged and invited the junior member of staff to drive the van, he gave inconsistent accounts of his conduct and, it is alleged, lied to the respondent during the investigation procedure. The claimant also covertly recorded meetings with the respondent having been told that it was not permitted and lied about his actions in that regard. As a result, the respondent said that the claimant was summarily dismissed for gross misconduct.

The Jersey Tribunal rehearsed the arguments surrounding the right not to be unfairly dismissed and its own role in determining whether the employer has acted in a manner in which a reasonable employer might have acted in the circumstances of the case - and specifically that it is not for the Tribunal to substitute its own opinion for that of the employer - citing the relevant authorities in the decision of the Royal Court in Voisin v Brown [2007] JLR 141, which was considered in JT (Jersey) Limited v Wood [2016] JCA 183.

The Jersey Tribunal found that the respondent did undertake an investigation process in relation to the accident, including taking statements from the claimant and the driver of the van. The claimant was also invited to attend a meeting to discuss the incident with his representative. The Jersey Tribunal considered that the respondent had a genuine belief that the claimant was guilty of gross misconduct and had reasonable grounds for that belief from the evidence it had obtained from the investigation conducted. The Jersey Tribunal agreed that lying to the employer, encouraging junior employees to break the law potentially putting members of the public at risk, and covertly recording meetings were "acts clearly amounting to gross misconduct justifying summary dismissal".

The Jersey Tribunal concluded that, while the claimant may have expected a further investigation following his rejection of the settlement offer, in the circumstances of the case, including the evidence already available to the respondent and the relatively small size and administrative resources of the respondent, that "any further investigation process would have been futile and could be dispensed with".

This case demonstrates that there are some circumstances in which an employer can fairly dismiss an employee without conducting a full investigation or disciplinary process. However, employers should take care to ensure that reasonable grounds can be demonstrated based on any evidence that is available.

COVID-19 related cases

The Jersey Tribunal dealt with a number of claims last year that, either directly or indirectly, related to the impact of the COVID-19 pandemic.

Refusal to wear a face covering, disability discrimination and dismissal

In David Pallot v Jersey Heritage Trust, ³ the claimant (a driver of "amphibious passenger vehicles") refused to wear a face covering on grounds of a disability. The claimant argued that his anxiety, triggered by the wearing of a face covering, is a hidden disability which has manifested itself only with the advent of COVID-19 and that the symptoms of this disability make it dangerous for him to drive while wearing a face covering. He claimed unfair dismissal (including automatic unfair dismissal); direct/indirect discrimination...