Employment Law Newsletter – June 2020

Cases:

  • Unfair dismissal & discrimination: When a dismissal related to marriage breakdown may be discriminatory
  • Unless Orders: Claims only capable of being struck out if Unless Orders worded carefully
  • Tribunals: Just and equitable to extend time limit in harassment case
  • Redundancy: Interview process more appropriate for seeking alternative roles

Other news:

Unfair dismissal & discrimination: When a dismissal related to marriage breakdown may be discriminatory

In Gould v St John’s Downshire Hill [2020] UKEAT/0002/20/BA the vicar of an evangelical Christian church, who was dismissed in August 2016, alleged that his dismissal was because of the breakdown of his marriage and that his dismissal amounted to marriage discrimination and was unfair. The Employment Tribunal found, on the evidence, that the reason for dismissal was a loss of trust and confidence in him (due to his public manifestation of his marital problems). Although the breakdown of his marriage had contributed to the loss of trust and confidence, it was part of the background or context rather than part of the reason for dismissal: The Respondent’s concern, insofar as it related to marital breakdown, was with his behaviour in the context of that breakdown rather than a moral or religious belief that a minister whose marriage breaks down cannot continue to serve. The marriage discrimination claim therefore failed. His dismissal was also fair.

The EAT held that although the Claimant’s discrimination claim might have succeeded if the decision to dismiss him had been significantly influenced by a belief that a minister cannot continue to serve if their marriage breaks down, or if they would not have been dismissed in the same circumstances had they not been married, the Employment Tribunal had been entitled to find as a fact that this was not what had happened. As a matter law, therefore, this was not a case of marriage discrimination. The appeal against the finding that the dismissal was fair was premised on there being an error of law in relation to the discrimination claim and it therefore also failed.

Unless Orders: Claims only capable of being struck out if Unless Orders worded carefully

In Ijomah v Nottinghamshire Healthcare NHS Foundation Trust [2020] UKEAT/0289/19/RN the claim form set out that the Claimant had been subjected to detriments on grounds of having made protected disclosures, unfairly dismissed by reason of having made protected disclosures and ordinarily unfairly dismissed. There were also claims for damages for breach of contract. The claim form included particulars of claim giving a wide-ranging narrative of events. There was found not to be enough detail to which the Respondent could adequately respond so the Claimant was ordered to submit a Scott Schedule (i.e. a schedule or table which is used in court proceedings to clearly set out the allegations which are in dispute), which he did. The Respondent found this schedule to be insufficient and the judge called a further two day preliminary hearing at which he set out exactly what was wrong with the Schedule and how to put it right, with a detailed annex which was to be completed by the Claimant setting out full details of each alleged incident and detriment, to which the Respondent had to respond. A date was set for its submission, but in the interim the Respondent applied for an Unless Order (i.e. the court can order that a party’s claim will be struck out ‘unless’ they comply with a court order by a given date. The strike out occurs automatically if the unless order is not complied with) stating that unless the Claimant provided further information (as required by a previous Order), the claims “or such of them as any non-compliance relates” would be struck out. The Claimant did respond but some answers were too generic and certain supporting documents were not attached. The Respondent submitted these failures meant the Unless Order had not been complied with and therefore all the claims should be struck out. The Judge agreed and struck out all the claims. The Claimant appealed. 

The EAT allowed the Claimant’s appeal in part – some of the claims were remitted back to the Tribunal but some were struck out. The Unless Order was not properly interpreted by the Judge who had erred in her approach to whether there had been material non-compliance with an Unless Order that was attached to an earlier Order requiring further particulars of the claims. The EAT made observations on the particular perils and pitfalls of making, and construing, an Unless Order that is parasitic on an earlier Order, and that relates to the provision of particulars. There were also breach of contract claims. The Tribunal correctly concluded that there had been material non-compliance in relation to all of those claims, and that they all stood struck out.

Tribunals: Just and equitable to extend time limit in harassment case

In Wilson Barca LLP & Others v Shirin [2020] UKEAT/0276/19/BA the Claimant resigned from her job as a paralegal after about 6 months following bullying and harassment from the Respondents. In a reserved judgment on liability, the Employment Tribunal upheld four allegations of harassment on the ground of the Claimant’s age, and two allegations of harassment on the ground of her sex. Ten months later, on the first day of the remedy hearing, the Respondents contended for the first time that all six of the upheld allegations had been brought outside the statutory time limit. Although the Claimant did not respond to this point by making an application to extend time, in its reserved judgment on remedy the Employment Tribunal decided that it was just and equitable to extend time. It awarded the Claimant £20,000 for injury to her feelings under the Vento guidelines before making adjustments for inflation, the Simmons v Castle uplift and interest. It also awarded £5,000 aggravated damages in respect of the harassment on the ground of sex.

On appeal, the EAT rejected the Respondents’ challenge to the remedy judgment on the time issue, holding that this was based on the erroneous premise that the Claimant ought to have made an application to extend time once the Respondents had raised the issue at the remedy hearing. The issues determined by the liability judgment were res judicata (i.e. a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties); the Respondents had never attempted to overturn the liability judgment. It was not, therefore, necessary for the Claimant to make an application for an extension of time as the Respondents contended. In any event, the EAT would have upheld the Employment Tribunal’s decision to extend time in these circumstances, had it been necessary to do so.

The Employment Appeal Tribunal also rejected the Respondents’ arguments that the Employment Tribunal had been wrong in principle to make awards of compensation for injury to feelings and of aggravated damages. However, it upheld the appeal against the amount of compensation awarded. The Employment Tribunal’s reasoning was either internally inconsistent or was insufficient to explain the Tribunal’s reasons for the amount of the award. The assessment of compensation was remitted back to the same panel of the Employment Tribunal for redetermination.

Redundancy: Interview process more appropriate for seeking alternative roles

In Gwynedd Council v Shelley Barratt & Other [2020] UKEAT/0206/18/VP the Claimants were dismissed for redundancy following the closure of the school where they worked. They were unsuccessful in applying for positions at a new school that opened at the same location – they were essentially re-interviewing for their old jobs at a new school on the same site. The school used a competitive interview process with no right of appeal rather than using a selection/scoring process. The Tribunal held that the dismissals were unfair because of the failure to provide the Claimants with a right of appeal, the absence of consultation and because of the manner in which they were required to “apply for their own jobs”. The Respondent local authority appealed on the grounds that the Tribunal had erred in its approach to the assessment of fairness under s.98(4) of the Employment Rights Act 1996 in that it had treated guidelines as to what an employer should do in a redundancy dismissal as inflexible legal requirements; and had failed to take account of the particular limitations on the Respondent’s role in relation to recruitment at a maintained school.

The EAT held, dismissing the appeal, that the Tribunal had not erred in its approach to fairness. Whilst some parts of the Tribunal’s judgment might be indicative of a rigid approach, a fair reading of the whole judgment reveals that it did not treat guideline cases as laying down mandatory requirements that had to be applied in every case. Whether or not the Respondent acted fairly in applying that process in the circumstances of this case was to be judged by an application of s.98(4) of the Employment Rights Act 1996 and that is what the Tribunal did. In doing so, it did not err in its understanding of the relationship between the Respondent and the Governing Bodies of the schools as set out in the relevant regulations. Had they been applying for alternative roles, it would have been more appropriate to use the ‘forward looking’ selection process (i.e. competitive interview).

Other News:

Tribunals: What’s open and when?

On 19 March 2020, the Presidents of the Employment Tribunals issued a direction regarding in-person hearings (i.e. where parties were expected to be in attendance) changing them to case managements hearings to be held by telephone or other electronic means. If you were due to attend a hearing following this date, you should have been contacted by the tribunal system.

This direction was amended on 24 March 2020 so that it applied to all hearings scheduled to commence on or before Friday 26June 2020. In-person hearings listed for 29 June 2020 or after will be subject to further directions in due course.

On 1 June 2020, following reviews of their previous direction (on 19 March and 24 March), the Presidents of the Employment Tribunals updated the Frequently Asked Questions arising from the Covid-19 Pandemic. It includes much helpful information regarding current employment cases and, now, a ‘roadmap’ (see page 18 onwards) of contingent and “aspirational” plans to slowly reopen the tribunals and move hearings along.

For June, the focus continued to be on remotely conducted case management hearings, and straightforward money or remedy claims with little or no disputed evidence. Some private hearings took place by telephone or Cloud Video Platform (CVP).

Through July and August, in addition to cases considered during June, some standard track cases (typically unfair dismissal) will be heard remotely using CVP, and some short-track (simple money claims) and preliminary hearings will start to be heard in person at tribunal venues which are ready to operate social distancing measures. It is unlikely open track cases (e.g. discrimination) will be heard, although shorter duration cases may begin to take place. Hearings involving several participants may operate on a hybrid basis.

It is hoped that by September/October, tribunals will begin to determine more shorter duration open-track cases using the CVP, with a range of approaches being used across the regions dependent upon resources available.

November and December will be seen as a period of consolidation and review.

Tribunals: EAT issues guidance for attending remote hearings

On 12 June 2020, the EAT issued Practice Direction (Employment Appeal Tribunal – Procedure – Hearings) 2020 (Amended Practice Direction) which revokes and replaces paragraph 19 of the Practice Direction (Employment Appeal Tribunal – Procedure) 2018 (2018 Practice Direction) in relation to hearings in the EAT including remote hearings. On the same day, the EAT also issued a Remote Hearings Protocol (Protocol). Both the Amended Practice Direction and the Protocol apply in respect of all EAT hearings taking place on or after 12 June 2020. The remainder of the 2018 Practice Direction continues in force.

The Amended Practice Direction expands paragraph 19 so that individuals may be allowed to participate in a hearing either partially or wholly remotely if it is in the interests of justice to do so. Previously, short hearings could be conducted by telephone only if a party or their representative had a disability.

Other changes include making arrangements for members of the public to attend a hearing remotely, and the circumstances in which hearings may be private. The Amended Practice Direction also makes clear that parties may only make audio recordings of a remote hearing if they have express permission from the judge, and that publication or broadcasting of any such recording is not permitted. No video or other visual recording of a partially remote hearing is permitted but video recordings of a wholly remote hearing may be allowed with the express permission of the judge.

The amended Practice Direction will expire at the same time as The Employment Appeal Tribunal (Coronavirus) (Amendment) Rules 2020, although it may be reviewed prior to the expiry of those Rules and may be revoked at any time.

The Protocol sets out practical instructions for parties, including how to provide details of who will attend the hearing, how to join the hearing and how to provide documents.

Getting back to work: Updated BEIS guidance

On 24 June 2020, BEIS published updated guidance in the following areas as part of their ‘Support for businesses and other self-employed people’:

Review the relevant guidance for your business to ensure you are up to date. You can even sign up to receive updated news from the BEIS.

Data Protection: ICO issues further guidance on data protection during recovery period

On 16 June 2020, the Information Commissioner’s Office (ICO) published further guidance on data protection during the recovery phase of the COVID-19 pandemic as lockdown restrictions ease and businesses begin to reopen. Elizabeth Denham, Information Commissioner, stressed that “Data protection does not stop you asking employees whether they are experiencing any COVID-19 symptoms or introducing appropriate testing, as long as the principles of the law – transparency, fairness and proportionality – are applied“.

The guidance is broken into sections covering the ICO’s regulatory approach, testing, surveillance and individual rights. It also incorporates guidance previously issued, for example on workplace testing, although new FAQs have been added, including on making testing mandatory and what information should be provided to employees about results from a commissioned testing service.

The ICO sets out six key data protection steps which cover only collecting and using what is necessary, data minimisation, transparency to staff, treating people fairly, keeping data secure and ensuring staff can exercise their information rights. The ICO notes that it “will continue to help organisations and businesses through the current recovery phase by supporting innovation and economic growth, while ensuring that people’s information rights are not set aside“.

Discrimination & Equality: Businesses need to do more than headline initiatives to address ethnic inequality

Norman Pickavance (former HR director, author of The Reconnected Leader and co-founder of the Financial Inclusion Alliance), writing in People Management, has drafted a list of questions to help organisations consider what role they can play in supporting the Black Lives Matter movement. He said that it is positive that leaders from many large corporations have spoken out but implementing change which has a real impact will be more challenging. He urges them to check whether #blacklivesmatter is a meaningful statement in their organisation by reflecting on several questions, including the following:

  • How many black people are represented in senior leadership at your organisation?
  • Would black employees say they are treated and paid equitably? Have you asked them?
  • Would reporting on the numbers of black people in your organisation at each level make you uncomfortable?
  • Is diversity and inclusion isolated to singular events?
  • Do you know how you would actually change your culture so that black colleagues don’t have to work doubly hard just to fit in?

This comes as a petition for the government to introduce mandatory ethnicity pay gap reporting for UK firms with 250 or more staff reached 100,000 signatures following the death of George Floyd, having been set up in March. This is the threshold number of signatures which triggers a parliamentary debate.

Further Information:

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

The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.