Employment Law Case Update – March 2023

A round-up of the most significant employment law cases to be published over the last month regarding unfair dismissal and determining the date the contract was terminated, considering how an employee’s disabilities may have affected his conduct, respecting privacy through restricted reporting at tribunals and a look at how the ICO and Easylife settled a monetary penalty for unlawful data processing.

Unfair Dismissal: Determining the effective date of termination of the contract

In Meaker v Cyxtera Technology UK Ltd [2023] EAT 17 the Employment Appeal Tribunal (the EAT) dismissed the employee’s appeal, concerning the correct approach, in law, to the calculation of the effective date of termination of employment (EDT), pursuant to s.97 of the Employment Rights Act 1996 and for the purposes of a complaint of unfair dismissal. The employee appealed after his unfair dismissal claim was struck out as being out of time. The employer argued that the determination of the EDT was not governed by contractual principles and that, where an employee was dismissed in breach of contract, the EDT was the date on which the dismissal was communicated, regardless of whether he accepted it.

The EAT ruled that the employment tribunal (the ET) had not erred in holding that a letter, which the employer had sent to the employee in February 2020, was a termination letter; and that the effective date of termination, for the purposes of the unfair dismissal claim, was the date of receipt of that letter, even if it had been a repudiatory breach that had not been accepted by the claimant at common law. The EAT held that it was not bound to conclude that the meaning of the letter was rendered ambiguous by the fact that the opening paragraph of the relevant settlement agreement had referred to termination being effected by mutual agreement; and that the ET had been entitled to take the view that, even where there had been no mutual agreement, the termination (by the letter) had been clear.

The EAT ruled that there was no sign in the authorities that it was considered that the EDT would only be the date of a repudiatory breach if the contract had, in fact, been brought to an end by the employee accepting that breach. Further, the EAT held that the ET had not erred in holding that the employee had not shown that it had not been reasonably practicable for him to have presented his unfair dismissal complaint in time.

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Disability Discrimination: Determining whether an employee’s disabilities had had an effect on his conduct

In McQueen v General Optical Council [2023] EAT 36, the Employment Appeal Tribunal (the EAT) dismissed the employee’s appeal against the employment tribunal’s (the ET’s) decision, dismissing his claim which alleged unfavourable treatment by the respondent employer because of something arising in consequence of a disability, pursuant to s.15 of the Equality Act 2010 (EqA 2010). The employee had dyslexia, some symptoms of Asperger’s Syndrome, neurodiversity and left sided hearing loss, which had caused some difficulties with his interactions in the workplace. The employer, which was the statutory regulator of optometrists and opticians practising in the UK, had employed the employee as a registration officer. The employee had had ‘meltdowns’ at work, which had led to disciplinary proceedings. Subsequently, he had left that employment.

The employee contended that: (i) the ET had misapplied the broad test of causation required where a claim under s.15 was being considered, in that its reasoning had been contrary to the psychiatric and psychological evidence; (ii) the disability did not, necessarily, need to be the sole or even main reason for the ‘something’ that arose in consequence of it; (iii) the employer had, itself, linked the employee’s behaviour to his disabilities; and (iv) in considering whether there had been discrimination of the kind where ‘A treats B unfavourably because of something arising in consequence of B’s disability’ (EqA 2010 s 15(1)(a)), the ET had failed to appreciate that the words ‘in consequence of’ were, at least, as broad as the ‘because of’ test.

The EAT held that, although it had reservations about the structure and quality of the ET’s decision and reasoning, the ET had not erred in law or principle in the application of s.15 to the facts; and that it had not adopted too strict a test of causation when considering the effects of the employee’s disabilities. The correct reading of the decision was that the ET had found that those effects had not played any part in the conduct that had led to the unfavourable treatment complained of. The EAT held that, once the ET had determined that the employee’s disabilities had not had any effect on his conduct on the occasions in question, the further question whether any unfavourable treatment had been ‘because of’ that conduct had not arisen.

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Restricted Reporting: Anonymity in hearing cases in the tribunals

In A v Choice Support (Formerly MCCH Ltd) [2023] EAT 18, the Employment Appeal Tribunal (the EAT) ruled on the respondent’s application, pursuant to r.19 of the Employment Appeal Tribunal Rules 1993, SI 1993/2854, to make permanent a temporary restricted reporting order which had been made at the EAT level, pursuant to r.23 of the 1993 Rules, and arising out of s.11 of the Employment Tribunal’s Act 1996 (the Act), and in line with an order made by the employment tribunal (the ET) pursuant to r.50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations, SI 2013/1237 (r.50) and s.11 of the Act. The application arose in circumstances where the respondent provided support to vulnerable adults, and the employee alleged that an individual (EA), with whom she had worked at the same property, had raped her.

The EAT held that: (i) r.50 set out a much broader discretion beyond s.11 of the Act; (ii) the orders should make specific reference to which elements of s.11 and/or r.50 the relevant decision was applying; (iii) the distinction between anonymity orders and restrictions on reporting should clearly be separate parts of any such order, setting out whether they were made pursuant to the section or on broader grounds; (iv) if there was concern about jigsaw identification, any order should be made in terms which clearly prohibited publication of any particular detail of the case facts which it was thought might lead to identification; and (v) a restricted reporting order should only be made (and made permanent) when a less restrictive order would not suffice.

The EAT held that the employee should remain anonymised, that EA’s rights under art 8 of the European Convention on Human Rights had been engaged and that, as ‘a person affected’, he should be anonymised and that, because of the risk of jigsaw identification, EA’s parents should remain anonymised. Further, the EAT ruled that the anonymisation should be made the subject of a permanent order.

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Data Protection: ICO and Easylife reach agreement regarding monetary penalty

The Information Commissioner’s Office (ICO) has reached an agreement with Easylife Ltd (Easylife) to reduce the monetary penalty notice to £250,000 for breaching the UK General Data Protection Regulation, Retained Regulation (EU) 2016/679 (UK GDPR). Easylife has accepted the ICO’s findings as set out in the monetary penalty notice and has agreed to pay the reduced fine. This follows the ICO’s fine to Easylife on 4 October 2022, where an investigation found that Easylife was making assumptions about customers’ medical conditions, based on their purchase history, to sell further health related products. This was deemed to involve processing of a special category data without a lawful basis, where Easylife has since stopped the unlawful processing of special category data.

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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.