A LIMITED v Z
The EAT held the Respondent did not have constructive knowledge of the disability in the particular circumstances of this case where the Claimant had not been open about her disability. The Claimant was dismissed by the Respondent because of poor attendance and timekeeping issues. Her poor attendance arose in consequence of her disabilities and the parties both agreed the Claimant was disabled due to mental and psychiatric impairments. The Employment Tribunal found that the company did not have actual knowledge of disability but did have constructive knowledge and upheld the claim of disability related discrimination under the Equality Act 2010. The Tribunal had found the Respondent knew nothing more than that the Claimant had experienced personal problems and as a result had suffered from stress, but the Tribunal held that the company should have made further enquiries of the Claimant and therefore found the Respondent had constructive knowledge. The EAT found the Tribunal had fallen into error because it had only asked itself what process the company might have been expected to follow but failed to go on to address the crucial question of what the Respondent ought to have known. The Tribunal had found that if further enquiries had been made, the Claimant would have continued to supress information about her mental health problems and would have refused an occupational health referral. It therefore followed that further enquiries would have made no difference and that the respondent did not have constructive knowledge. The claim was therefore rejected, and the Employment Tribunal’s decision overturned. However, Members should note that the failure of this claim was based on the particular circumstances of this case and the specific finding that further enquiries would have made no difference. That should not be assumed to be the case.
MEARS HOMECARE LTD v BRADBURN & OTHERS
Employers are obliged by virtue of Section 9 of the National Minimum Wage Act 1998 (NMWA) to keep pay records. That obligation remains in place where the employee’s employment has ceased – a worker has the right to require their employer to produce pay records if they believe reasonably that they may have been paid less than the national minimum wage. In this case, the Claimants transferred under TUPE to new employers. About 4 months later they served notices on the Respondent (their former employer) requesting wages information. The company failed to provide the information within the 14-day time limit and was ultimately ordered to pay £600 to each Claimant by an Employment Tribunal, being a sum equal to 80 times the hourly rate for national minimum wage.
However, the Employment Appeal Tribunal overturned the decision. The EAT found that under a TUPE transfer employment doesn’t cease but continues with the transferee and therefore liability to keep pay records transfers from the transferor to the transferee. The EAT did recognise that it may be more convenient for the transferor to maintain the pay records as they had collated them but held that was not a good reason for the obligation not to transfer. The transferee should be in a position to insist that pay records are delivered by the transferor as part of the transfer agreement reached.
