“Everyone gets depressed sometimes, you just have to pull yourself together” was discrimination arising from disability.

Ms Wickers, an optical assistant at Specsavers, received some formal and informal warnings for failure to comply with the employer’s absence notification procedure, lateness and a dispensing error. She became tearful during her appraisal with a director and he advised that she should see her GP. Ms Wickers later told the director that she was struggling with depression and he responded by saying that he had no sympathy for “this kind of thing”. The director went on to say that “everyone gets depressed sometimes, you just have to pull yourself together”.

Following a number of periods of absence and another dispensing error, Ms Wickers was again late for work and the director decided to go “straight to disciplinary action”. This was despite Ms Wickers telling him that she was on medication and had been diagnosed with depression. Ms Wickers resigned after being told that she was likely to be dismissed. Ms Wickers brought successful claims for disability discrimination in the employment tribunal.

The Tribunal held that the director’s unsympathetic approach to the claimant’s condition led to discrimination arising from disability under the Equality Act 2010. Ms Wickers had been late on the day in question because she had overslept due to her medication and the effect of the medication on her sleep was something arising from her disability. The employment tribunal also upheld her claims for failure to make reasonable adjustments and harassment.

Jonas Gutierrez wins Newcastle United discrimination tribunal case

Midfielder Jonas Gutierrez was dropped by Newcastle United because of his cancer diagnosis, an Employment Tribunal has found. The 32-year-old was suing the Magpies for about £2m on the grounds of disability discrimination. Gutierrez, who joined Newcastle from Real Mallorca in 2008, was diagnosed with testicular cancer in October 2013. He had been a regular at St James’ Park before that time, scoring 10 goals in 177 appearances at the time of the return of the illness and subsequent treatment. The Argentina international sued Newcastle over the way he was treated following his diagnosis and claimed the Premier League club saw him as a liability after he returned from treatment.

Gutierrez, now playing for Deportivo La Coruna in Spain, also alleged that he was not selected for some of the second half of the 2014-15 season. The Tribunal ruled the club made it impossible for Gutierrez to trigger an appearance-based contract extension. Newcastle United says they are “dismayed” by the judgement and are considering further options with their legal team.

Claims of unfavourable treatment and another of harassment related to disability were dismissed. A further remedy hearing will be held in due course, in which compensation will be addressed.

Does an employee’s willingness to negotiate a termination package prevent a claim of constructive dismissal?

No, held the High Court in Gibbs v Leeds United Football Club. The Claimant was the assistant manager at Leeds United. The manager he worked with was sacked. The Claimant was asked if he was interested in becoming head coach but he declined. He expected to be dismissed although he was asked to continue in his role whilst discussions were held about a consensual departure.

The Claimant was not expected to work with the new manager. He was excluded from any meaningful part in the training of the first team, which was part of his normal duties, and he was not invited to pre-season training. Instead, he was told by email that he was to have no contact with the first team and he would work with the youth academy. He resigned in response.

The High Court held that it was not a breach of contract on his part to initiate a discussion about consensual termination. The fact that he had said that he was prepared to leave if suitable terms were agreed was beside the point. He had remained ready and willing to fulfil his duties. The email was repudiatory, since it led to a plain loss of status, and he had resigned in response to that and was therefore entitled to succeed in his claim for notice pay.

Disciplinary action for imposing religious views was not discriminatory

In Wasteney v East London NHS Foundation Trust, the Employment Appeal Tribunal has upheld a Tribunal’s decision that disciplinary action taken against a Christian senior manager for imposing her religious views on a Muslim junior employee was not discriminatory. The junior employee had complained that she felt that the manager was ‘grooming’ her by praying with her and inviting her to church services. The employer was entitled to deal with this as serious misconduct, namely the blurring of professional boundaries and the subjection of a junior colleague to improper pressure and unwanted conduct.

When is a Staff Handbook Absence Policy contractual?

In Department for Transport v Sparks a dispute arose as to whether certain parts of the Department’s staff handbook were incorporated into employees’ contracts. The Claimants (7 in all) had obtained a declaration in the High Court that certain clauses in the Department’s Staff Handbook had contractual effect. The appeal to the Court of Appeal focused on a short-term absence management policy, which, if contractual, restricted managers’ scope for taking disciplinary action until specific trigger points had been exceeded, 21 days of short-term absence in any 12-month period.

The result of the decision on incorporation, was that the employer was only entitled to vary the absence management procedure in accordance with the handbook’s variation provisions. This meant that changes could only be made where the changes were not detrimental. The employer initially consulted with staff about a proposed detrimental change to the procedure (reducing the trigger points from as much as 21 days, down to 5 days) but, when that process failed, they proceeded to make the change without agreement.

A unilateral detrimental change was not possible in those circumstances, and so no change had been properly effected. The Court of Appeal declined to overturn the High Court’s declaration that the employees’ original contractual terms must be reinstated.

Whether or not specific provisions (such as trigger points) contained within the relevant policy are found to be contractual will depend upon consideration of the terms and conditions of employment and the handbook documentation as a whole.

On these particular facts and circumstances, applying normal contractual principles of incorporation, the specific terms were designed to confer a right on the employees over and above the good practice guidance and they were “apt for incorporation”.

The general introductory language to the handbook and the introduction to the chapter on sick leave both pointed towards contractual incorporation; the latter stating that the chapter sets out: “your terms and conditions of employment relating to sick leave” and “…to the management of poor attendance”. The triggers were not, therefore, just a part of a “framework for discussion” or “prompts for management”, following as they did introductory wording with this clear contractual “flavour”.

For more information, please contact Jayne Harrison or Emma Tegerdine