Employment Law Case Update – April 2024

This month we bring you some technical cases looking at the circumstances in which a dismissal could be fair despite a full lack of process because of the actions of the disgruntled employee. Uber Eats has been found to have some bugs in its facial recognition software which has caused it to be seemingly discriminatory, a warning to employers using AI. Meanwhile, the Supreme Court has made a declaration of incompatibility between Trade Union law and the European Convention of Human Rights, as it appears to be lacking protection for people lawfully striking other than protection from dismissal. Read on for more details.

  • Unfair Dismissal: ‘Rare and unusual’ dismissal fair despite no written warning or appeal
  • Racial Discrimination: Uber Eats courier receives financial settlement following alleged discriminatory facial recognition checks
  • Trade Unions: Incompatibility of Trade Union Act v Rights to Strike under ECHR

Unfair Dismissal: ‘Rare and unusual’ dismissal fair despite no written warning or appeal

In Matthews v CGI IT UK Ltd [2024] EAT 38, the EAT held that an IT consulting business was right to fire a director without warning after their professional relationship irretrievably broke down, and made even the right to appeal a ‘futile’ exercise.

The EAT concluded that Guy Matthews was not victimised or unfairly dismissed because he gave his bosses little option but to fire him following months of attempts to keep him on, even as he continuously accused a manager of undermining him without proof.

‘This is an unusual and rare case where a dismissal has been found to be fair when there has been no written warning and no offer of an appeal. …They made clear factual findings and were entitled to conclude that this was such a rare case’, Judge Susan Walker wrote for the three-person panel.

Matthews started working at CGI, an IT and business consulting services company, in May 2017. He later became a director and consulting expert on a team specialising in 5G technology, working under Steve Evans. However, around May or June 2020, CGI decided to cut short its 5G pursuits and started a redundancy process, meaning Matthews’ job was at risk, the judgment said. Matthews’ relationship with Evans then began to strain. He believed that Evans was scapegoating him for the failed 5G venture, and had used him as a cover to make another colleague redundant, so Matthews submitted a complaint, the judgment said.

An internal team upheld part of Matthews’ grievance, finding that the company had placed ‘undue weight’ on his 5G experience when it decided his role was at risk when he had several other skills. However, the reviewer dismissed Matthew’s other allegations against Evans, noting that there was nothing to back it up. Matthews then accused the reviewer of incompetence and threatened to submit more grievances against Evans.

By this point, CGI had abandoned the redundancy process, and in November 2020 Matthews began a phased return to work after being sick for some time, the judgment said. CGI gave Matthews the option of remaining on the current team and reporting to Evans, or to try and take on an equivalent role on another team. But Matthews didn’t agree with either, and later in December 2020 rejected another offer. By February 2021, CGI had dismissed Matthews, citing an irretrievable breakdown in the professional relationship.

The EAT concurred with the earlier tribunal’s reasoning and conclusions. Although CGI initially made a mistake in the redundancy procedure, the company genuinely and persistently tried to find a reasonable solution to keep Matthews on but got rejected at every turn, the panel said. And there was no indication that Matthews was willing to make concessions or offer another proposal, given his conviction that Evans should be punished.

The Employment Tribunal had correctly considered whether CGI should have taken less extreme steps. But giving Matthews a warning would have ‘most likely generated a further escalation’, and mediation and the right to appeal would have been futile, too, because of Matthews’ stance that CGI needed to accept wrongdoing on Evans’ part, the judgment said.

Moreover, the panel stressed that the previous judge had not, in fact, applied the wrong legal test for victimisation. Matthews had argued that the judge wrongly used the test for automatic unfair dismissal—weighing whether his protected disclosures were the principal reason for getting the boot, rather than considering whether the whistleblowing complaints had a ‘material influence’ on his dismissal, the judgment says. However, Walker J said it was ‘quite clear that the correct test was applied, and the Employment Tribunal did not apply a test of what was the ‘principal reason’ for dismissal. The quote relied on by the claimant is in a different part of the judgment dealing with other complaints’.

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Racial Discrimination: Uber Eats courier receives financial settlement following alleged discriminatory facial recognition checks

In Manjang v Uber Eats UK Ltd and others (ET Case No 3206212/2021), the Equality and Human Rights Commission (EHRC) has announced that Uber Eats driver, Pa Edrissa Manjang, has received a financial settlement, following allegations that facial recognition checks required to access his work app were racially discriminatory, which led to him being unable to access the Uber Eats app to secure work.

In 2021, Mr Manjang was removed from the platform following a failed recognition check and subsequent automated process. He was told by Uber Eats that they had found ‘continued mismatches’ in the photos he had submitted to access the platform. The EHRC and the App Drivers and Couriers Union, both concerned by the use of Artificial Intelligence (AI) and automated processes in this case, helped with funding.

Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, said:

“AI is complex, and presents unique challenges for employers, lawyers and regulators. It is important to understand that as AI usage increases, the technology can lead to discrimination and human rights abuses.

We are particularly concerned that Mr Manjang was not made aware that his account was in the process of deactivation, nor provided any clear and effective route to challenge the technology. More needs to be done to ensure employers are transparent and open with their workforces about when and how they use AI.”

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Trade Unions: Incompatibility of Trade Union Act v Rights to Strike under ECHR

In Secretary of State for Business and Trade v Mercer  [2024] UKSC 12, the appellant, Ms Mercer, was employed as a support worker in the care sector by a care services provider, Alternative Futures Group Ltd (“AFG”). As a workplace representative of UNISON, she was involved in planning and took part in lawful strike action. She was subsequently suspended by AFG. While suspended, Ms Mercer received normal pay but was unable to earn pay for the overtime she would otherwise have worked. Ms Mercer brought a claim against AFG under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) that she had suffered detrimental treatment done for the sole or main purpose of preventing or deterring her from taking part in the activities of an independent trade union “at an appropriate time” or penalising her for having done so.

By agreement between the parties, the Employment Tribunal determined as a preliminary issue whether, in light of articles 10 (Freedom of expression) and 11 (Freedom of assembly and association) of the European Convention on Human Rights (ECHR), section 146 of TULRCA protected workers from detriment short of dismissal for participation in lawful industrial action as a member of an independent trade union. The Employment Tribunal held that it did not. However, the Employment Appeal Tribunal allowed Ms Mercer’s appeal and held that it could be interpreted as doing so. The Court of Appeal allowed a further appeal by the intervener, the Secretary of State for Business and Trade, holding that section 146 could not be interpreted compatibly with article 10 of the Convention but refused to make a declaration of incompatibility. Ms Mercer then appealed to the Supreme Court.

The Supreme Court, in allowing in part the appellant employee’s appeal against the decision of the Court of Appeal (Civil Division) that although section 14 of TULRCA could not be interpreted compatibly with article 10 of the ECHR a declaration of incompatibility was refused on the basis that there was a lacuna (gap) in the law rather than a specific statutory provision which had been incompatible. It therefore held that that section was the only route that could be available to the appellant to vindicate her article 11 right in the domestic courts or tribunals.

However, that route was blocked by the conventional interpretation given to section 146 of the TULRCA. That was what was inherently objectionable in the terms of section 146 as it stood and that meant that section 146 was incompatible with article 11 of the ECHR. Accordingly, a declaration was made under section 4 of the Human Rights Act 1998 that section 146 of TULRCA was incompatible with article 11, insofar as it failed to provide any protection against sanctions short of dismissal, intended to deter or penalise trade union members from taking part in lawful strike action organised by their trade union.

The Supreme Court unanimously allowed the appeal to the extent that it makes a declaration that section 146 TULRCA is incompatible with article 11 of the ECHR.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

The information provided within this document is for general informational purposes only. While every effort has been made to ensure its accuracy, no responsibility can be accepted for inaccuracies. Readers are advised that laws and practices may change over time. This document is provided solely for informational purposes and does not constitute accounting, legal, or tax advice. Professional advice should be sought before making any decisions based on the contents of this document.