Welcome to the April edition of the AdviserPlus newsletter.
This month’s newsletter we celebrate Eid al-Fitr, the word Eid translates as “the festival of breaking the fast” and this marks the end of the holy month of Ramadan where Muslims fast from dawn until dusk. This year Eid al-Fitr took place on 10th April 2024, Eid Mubarak to all our Muslim colleagues.
We will also explore some recent case law, looking at how employers should carefully consider what action is taken against an employee and ensuring a thorough investigation is carried out to avoid an unfair dismissal claim.
Finally, there are some dates in April that may be interesting and beneficial for businesses to explore.
Recent Case Law
Unfair Dismissal – Mr J Duxbury v University of Huddersfield
When taking action against an employee, a recent tribunal reminds employers that they should ensure the outcome of that action is reasonable and that a thorough investigation is carried out.
Mr Duxbury was a senior lecturer in the accountancy, finance, and economics department of the Huddersfield University from 2005. The University introduced a mandatory doctoral studies requirement for all of its academics in 2013 and in the autumn of 2014, Mr Duxbury enrolled in the doctorial study and undertook some preliminary work towards a proposal for the doctoral research. In 2015 Mr Duxbury’s line manager recommended that he speaks to his GP as he had noticed he was showing signs of stress at work. Mr Duxbury visited his GP on 24th June 2015 and informed them that he was being overworked and his employer’s expectations were unrealistic. The GP issued Mr Duxbury with an 8-week fit note stating he may be fit for work with amended duties, altered hours and workplace adaptations, they also recommended the University arrange an occupational health assessment. Mr Duxbury spoke to his manager about the GP recommendations and an OH referral was conducted that advised the line manager should address whatever adjustments were necessary, as such Mr Duxbury’s PhD work was suspended for an academic year.
After a year Mr Duxbury did not resume, or re-enrol onto his doctoral studies and on 10th February 2017, Huddersfield University commenced a conduct investigation. In April 2017 Mr Duxbury spoke to his GP about concerns of high blood pressure and that he had a stressful job. During this time his line manager confirmed that there would be no additional hours allocated for him to undertake his PhD.
The decision of the investigation was to progress to disciplinary proceedings and Mr Duxbury was subsequently issued a first written warning on 21st November 2017. On 17th April 2018 he was issued with a final written warning and was instructed to resume his studies by 31st May 2018. Mr Duxbury appealed the final written warning, and this was rejected on 5th October 2018, he was also issued a renewed direction to enrol on the PhD studies by 31st December 2018.
On 10th October 2018 Mr Duxbury visited his GP again and was diagnosed with stress at work, the GP advised Mr Duxbury to withdraw from work for four weeks and have an occupational health assessment as soon as possible. The occupational health appointment went ahead in January 2019 and during this time Mr Duxbury was issued ongoing fit notes until 30th May 2019 with the last fit note advising that he may be fit for work with a phased return and altered duties, Mr Duxbury returned to work on 5th June 2019 on a phased return. The previous day he was notified that the final stage of the disciplinary process was to commence in relation to his failure to re-enrol and Mr Duxbury’s employment was terminated on 16th January 2020.
Mr Duxbury’s dismissal was heard at a tribunal for Age Discrimination, Disability Discrimination and Unfair Dismissal. In their judgement (full report here), the tribunal concluded the following:
Age Discrimination (Indirect) – Complaint dismissed.
The tribunal dismissed the complaint of indirect age discrimination after considering if Mr Duxbury and other academic colleagues without a PhD aged over 50 were at a disadvantage by the University’s policy of requiring all colleagues without that qualification to study for and obtain a PhD compared to younger colleagues. Mr Duxbury felt the requirement to obtain the qualification would take away the quality of time and the work life balance and for him personally he had no particular corporate ambition beyond what he had already achieved to advance his career further. He also felt he would have coped better with the stress and pressure of undertaking a doctorate in his twenties or thirties, rather than his late forties when the policy was introduced. Mr Duxbury was planning on retiring at 60 years old and did not see any personal value in having a PhD. The Tribunal highlighted that there is no mandatory retirement age, and the date of retirement is a very personal decision and therefore no assumptions can be made about career advancement or aspirations at any point in a career or age as these matters are driven by personal and often unique circumstances. When exploring the work life balance, the tribunal found the total time required to undertake the PhD was the same, whatever the age of the student and all working ages will have other caring or calls on their personal time. Taking all that into account the tribunal dismissed this complaint.
Disability Discrimination – Complaint dismissed.
During the tribunal Mr Duxbury gave evidence that he suffered from generalised anxiety and had continually suffered from the condition of stress at work from 2015 until November 2020. Mr Duxbury reported chronic sleep deprivation to his GP on 10th October 2018 and recalled a particular episode on or around 19th September 2018, when he woke at 3am and was unable to return to sleep. This was the morning of the final written warning appeal hearing. Mr Duxbury also stated he had difficulties with his memory on two occasions in October 2018. In the autumn of 2019, he experienced chest pain and was prescribed a statin by his GP and a number of other medications. Mr Duxbury was referred for treatment at hospital and was diagnosed with angina. Mr Duxbury believed the stress to which he was subject to at work was linked to the development of angina. The tribunal reviewed Mr Duxbury’s medical conditions against the definition of disability within the Equality Act 2010, specifically if they had a substantial adverse effect and would conclude an impairment, the tribunal found there was a substantial adverse effect on his ability to undertake day-to-day activities during the period between September 2018 and June 2019, they then went on to assess whether or not the stress at work condition continued from February 2017 until the end of his employment in January 2020.
During the tribunal hearing Mr Duxbury gave evidence that his condition is still ongoing however he did not identify himself as a disabled person and the reference to generalised anxiety was without medical evidence to support this. Mr Duxbury did not visit his GP again after October 2018 to June 2019 and the tribunal therefore found based on the evidence available that he was not a disabled person at any point and dismissed this complaint.
Unfair dismissal – upheld
The tribunal found the reason for dismissal was not in dispute as Mr Duxley accepted the investigation manager and disciplinary manager believed he had not enrolled in doctorial study and that was the reason for dismissal as well and the dismissal not being overturned at appeal, it was accepted this was related to his misconduct. The tribunal recognised employers in all sectors frequently impose new qualification requirements on staff without there being any reference to those at appointment, or in their contracts and an employer is entitled to change its strategy or evolve that strategy, with consequent impact of the reasonable needs it places on staff and their qualification requirements. The Employment Rights Act 1996 Section 98 (see below) states that dismissal for want of a qualification can be a reasonable dismissal, as it related to the capability of an employee however Huddersfield University did not embark on dismissal on capability grounds:
(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this subsection if it—
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee…
The tribunal considered if the University genuinely believed Mr Duxbury had committed misconduct and if they acted reasonably in all the circumstances in treating that as a sufficient reason to dismiss him. The tribunal considered the reasonable instruction/discipline approach in 2017 was to compel Mr Duxbury to enrol and complete his PhD study was not sensitive, moreover it was reasonably likely to cause stress and at no stage did his line manager undertake a stress risk assessment to document the measure to be put in place to alleviate the stress, for example documenting additional time to undertake the doctorial study. The tribunal reviewed Mr Duxbury’s contract of employment, specifically the sections related to his duties and hours of work, the make-up of his duties, his formal scheduled teaching responsibilities and his research and scholarly activity. Section 9 of Mr Duxbury’s contract states:
“9 Research and Scholarly Activity: As part of your duties, you will normally be expected to engage in research and scholarly activity. The nature and extent of this will vary with the nature of the subjects you teach and the full range and balance of your duties and other commitments. In this context, scholarly activities includes the production of books, contributions to books, articles and conference papers, and is to be construed in the light of the common understanding of the phrase in higher education.
9.2 While it is in the nature of research and scholarly activity that it may take place throughout the year and be integrated into the overall pattern of your activities, it is envisaged that normally the periods of the year outside normal teaching weeks (clause 7 working year) and annual holiday entitlement (clause 8 holidays) will primarily be devoted to research and scholarly activity.
9.3 Your research and scholarly activity will be principally self managed. In addition these activities (and their relationship with your other duties) will be considered as part of the staff appraisal and development system, under which objectives for the coming year (or other appropriate period) can be set and achievements over the past year (or other appropriate period) can be assessed. The University undertakes to give you such support as is reasonable in the circumstances in order to help you to realise the objectives so set.”
The tribunal concluded that imposing a PhD study on Mr Duxbury and how that would affect him from a contractual perspective specifically the working time allocation was not investigated and they found the completion of this doctoral was undoubtedly a change to his contract of employment, they found a reasonable employer has an obligation to reasonably investigate matters which exonerate an employee facing disciplinary measures and at not stage did the University undertake research on the hours imposed by the doctorial requirement.
The University took an early view in the disciplinary process that Mr Duxbury’s concerns of age discrimination was not relevant or could not be addressed as “without evidence” despite Mr Duxbury submitting material to the panel and the University failed to undertake any investigation into the potential adverse impact.
The tribunal found investigation failings and that there was not a reasonable investigation throughout the disciplinary process, they concluded the University did not act reasonably in treating it as a substantial enough reason to dismiss. Mr Duxbury was dismissed in spite of his previous good record and quality of teaching, and this only serves to compound that unreasonableness. They considered the first and final warnings manifestly unjust in light of the contractual position and the requirement of non-contractual hours in undertaking doctorial study. For all those reasons the tribunal upheld the complain of unfair dismissal.
Some dates for your diaries.
- 1st – 30th April – Bowel Cancer Awareness Month
- 14th – 20th April – Parkinson’s Awareness Week
- 22nd -28th April – MS Awareness Week
- 23rd April 2023 – Saint George’s Day
Note: The above guidance was correct at the time of writing this article on 12/04/24. This does not constitute legal advice and is for information purposes only.
If you have any questions regarding the content of this newsletter or would like more information to support your business with the changes, please get in touch.