News & Views

Employment Law Case Update – October 2024

Anne-Marie Pavitt,
30th October 2024

Employment Law

This month our case digest is dominated by unfair dismissal and victimisation claims. The usual advice follows: if you’re going to dismiss someone, make sure you follow procedure and do it properly, a protected disclosure only gains its protection from being in the public interest (not that of the individual), even unions can get it wrong, and if you’re going to submit a large remedy claim have substantial medical evidence to back it up.

Unfair Dismissal: Tribunal fails to consider fairness of final warning
Unfair Dismissal: Claimant can’t rely on protected disclosures if not made in public interest
Victimisation: Tribunal incorrectly applied burden of proof provisions and rejected protected act
Victimisation: Substantial lack of medical evidence and self-diagnosis not enough for high value remedy claim

Unfair Dismissal: Tribunal fails to consider fairness of final warning

In Thomas v Brandpath UK Ltd [2024] EAT 150, the EAT allowed the claimant’s claim for an unfair dismissal. After an altercation between the claimant and a colleague, the claimant was signed-off sick for a significant period and the respondent conducted a disciplinary hearing in her absence. The claimant was dismissed by the respondent and the Employment Tribunal (ET) concluded that the claimant had acted “inappropriately”. The claimant argued that the ET: (i) did not consider and decide whether the issue of the final warning was manifestly unfair; (ii) there was a failure to apply the relevant guidelines; (iii) the decision was perverse; and (iv) that there was unfairness in proceeding with the disciplinary hearing, in the absence of the claimant, rather than delaying to allow for a possible improvement in her medical condition.

The EAT held that the ET erred in law is its assessment of the reason for dismissal, in failing to determine the question of whether the final warning was manifestly unfair, having identified that as one of the issues for determination. It failed to properly consider the question of whether the respondent had investigated that fell within the band of reasonable responses. There was no clear finding of what the claimant had done or said that was “inappropriate”. They upheld grounds (i) and (ii) of the appeal. It was therefore not necessary to go on to consider grounds (iii) and (iv).

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Unfair Dismissal: Claimant can’t rely on protected disclosures if not made in public interest

In Dowding v The Character Group Plc [2024] EAT 153, the claimant in the employment tribunal was the finance director of the respondent, a company listed on the Alternative Investment Market. Following his dismissal he complained of unfair dismissal for the reason or principal reason that he had made protected disclosures, alternatively ordinary unfair dismissal. The tribunal concluded that the claimant had not, in law, made protected disclosures, because the disclosures relied upon were not believed by him to have been made in the public interest (alternatively, if they were, his belief was not reasonable). Nor in any event was the claimant dismissed by reason of those disclosures.

The tribunal found that this was a fair dismissal by reason of a breakdown in trust and confidence that had been caused by the claimant’s conduct. At a further costs hearing the tribunal awarded the respondent costs, in a capped amount, subject to detailed assessment on the indemnity basis. It rejected a costs application by the claimant himself. The respondent also successfully sought its costs in respect of the costs hearing, which it had limited to the maximum that could be summarily awarded, of £20,000.

The claimant’s appeal against the decision dismissing the ordinary unfair dismissal complaint was unsuccessful. An appeal against the costs decision succeeded in two respects. The EAT concluded that, under the Employment Tribunal Rules of Procedure 2013, the tribunal does have the power to direct that a detailed costs assessment be on the indemnity basis; but the tribunal had not shown whether, or if so, why, it had decided that such a direction was warranted in this case, applying the guidelines in Howman v Queen Elizabeth Hospital, UKEAT/0509/12/JOJ. In respect of the “costs of costs” award, the tribunal had not considered whether the sum of £20,000 was warranted having regard to the nature, gravity and effect of the conduct which gave rise to the award; or if it had considered that, it had not sufficiently explained its decision in that respect.

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Victimisation: Tribunal incorrectly applied burden of proof provisions and rejected protected act

In Edwards v Unite the Union and Others [2024] EAT 151, the Employment Tribunal was found by the EAT to have erred in its approach to the burden of proof. The Claimant had been employed as an employment law solicitor for the RMT. He wished to pursue proceedings against the RMT. He was a member of the Unite the Union (“the Union”) and sought to obtain “industrial and legal representation” from the Union against the RMT in respect of employment and personal injury claims. The Union took advice in respect of his claims and represented him in some of them. The Claimant was dissatisfied with aspects of the decision making and service/representation provided to him by the Union. He asserted that the Union and some of its officers had discriminated against him and subjected him to victimisation. He brought a number of claims before an Employment Tribunal. The Tribunal rejected his claims and concluded that the burden of proof had not shifted to the Union in respect of the victimisation allegation, and determined that one email the Claimant sent was not a protected act for the purposes of the claims of victimisation. The Claimant appealed.

The appeal was allowed, concluding that the Tribunal had erred in its application of the burden of proof provisions in consideration of relevant authorities and using guidance on the approach to the burden of proof provisions. As to the second ground of appeal, in context and applying the correct legal principles, and on a fair reading of the relevant email, the Claimant had made an allegation of disability discrimination. The allegation was that the First Respondent had failed to adjust its processes and that as a result, the Claimant, a disabled person, suffered harm. This could be understood to be an allegation of disability discrimination.

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Victimisation: Substantial lack of medical evidence and self-diagnosis not enough for high value remedy claim

In McInerney v Nottinghamshire Healthcare NHS Foundation Trust[2024] EAT 158, having been awarded compensation in respect of remedy for a successful claim of unfair constructive dismissal, the Employment Tribunal (ET) made a further reserved judgment in respect of the remedy for victimisation claim which amounted to £20,000 for injury to feelings, £10,000 for aggravated damages (which were not challenged) and £23,344.30 for loss of earnings, against which Dr McInerney appealed. The final schedule of loss submitted by the appellant put her losses at £2,114,140.90 gross. The EAT dismissed her appeal against the findings made in this further reserved judgment by the ET.

The appellant had been employed by the respondent NHS Trust as a Consultant Forensic Psychiatrist at a hospital until her retirement. The appellant brought two claims in the ET, alleging acts of victimisation that led to her resignation. Her victimisation claim was based on the respondent’s refusal to consider her application to work on a part-time basis as Forensic Psychiatrist in the respondent’s Forensic Gender Clinic and, specifically, refusing to allow her to apply for the role, not acknowledging or considering her subsequent application and not offering her the role. She contended that her mental health issues, allegedly caused by the victimisation, prevented her from working until the age of 75, as she had intended. The appellant succeeded in both complaints. The ET was highly critical of the actions of the respondent that resulted in the appellant’s resignation, concluding that the respondent had fundamentally breached the claimant’s contract of employment.

The ET found as fact that the appellant had not suffered a loss of confidence because of being victimised that prevented her from undertaking medico-legal work. Among other things, the appellant submitted that the ET failed to apply a percentage chance approach to the medico-legal loss or had otherwise failed to give adequate reasons as to its decision on that point. The EAT held that the ET did not err in law in failing to apply a percentage chance approach to the medico-legal loss. On a proper reading of the judgment, the ET found as a fact that the appellant had not suffered a fundamental loss of confidence that prevented her from carrying out medico-legal work. The ET had been entitled to consider the lack of significant supporting medical evidence to support the very substantial asserted losses (a single letter from a doctor – Consultant Psychiatrist in Psychotherapy, no longer practising) and that it was a significant omission. This is a very high value claim which primarily rests with the appellant’s financial losses she says arise as a result of her mental health issues cause by the victimisation by the respondent, and as a consequence, the ET consider medical evidence to be essential to enable proper consideration of the effect of the victimisation on the appellant’s mental health. She had also relied on her own evidence, as a Consultant Psychiatrist, but relying on self-diagnosis in such a high claim would in itself raise potential issues, not least being the cynical view that she would know what to say to support her own claim. Further, the reasons of the ET had been more than sufficient for the appellant to understand why she failed in that element of the claim for loss of earnings.

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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

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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.

News & Views

Employment Law Case Update – March 2024

Employment,
24th March 2024

Employment Law

This month’s case updates include a case of unfair dismissal which sparked a debate over the bounds of reasonable responses of an employer in dismissing an employee for posting a racist ‘joke’ on an intranet, we scrutinize parental leave protection against dismissal, look at whether employers can be held vicariously liable for detriments amounting to dismissal caused by co-workers in whistleblowing cases, and take a look at the potential discrimination of a Christian actor removed from a role due to anti-gay social media posts, although she admitted she would never had played that role anyway. Lastly, looking at Equal Pay, we investigate the ‘material factor defence’.

Unfair Dismissal: Band of Reasonable responses
Parental Leave: Protection against dismissal can arise before employee gives notice to take parental leave
Whistleblowing: Employer cannot be vicariously liable for detriment caused by act of co-worker which amounts to dismissal
Discrimination: Fired ‘Color Purple ‘actor loses appeal over Christian beliefs
Equal Pay: Identification of decision-maker is not essential to material factor defence

Unfair Dismissal: Band of Reasonable responses

In Vaultex UK Ltd v Bialas [2024] EAT 19 the question before the EAT was whether the original tribunal had been entitled to decide that a decision to dismiss an employee for posting a racist ‘joke’ on his employer’s intranet fell outside the band of reasonable responses.

The Claimant posted a racist joke on the Respondent’s intranet, which was used by all its employees. The Respondent was a large company which conducts cash processing. The Claimant had a long, unblemished service record and apologised for his actions but nonetheless, the Respondent decided to dismiss the Claimant for gross misconduct.

The tribunal held that the Claimant had been unfairly dismissed, and had even directed itself, citing pertinent authority, that, in relation to sanction, a band of reasonable responses approach should be applied, and that the tribunal “must not simply substitute its judgment for that of the employer in this case”. The tribunal concluded that, given the Claimant’s record and the fact he had apologised, any sanction above a final written warning fell outside the band of reasonable responses that a reasonable employer could have reached.

The Respondent appealed. The first ground of the appeal was the assertion that the tribunal nevertheless committed the error of substituting its own opinion of the appropriate sanction for that of the Respondent. The second ground was that, on the question of whether the sanction of dismissal was within the band of reasonable responses, the tribunal reached a conclusion which was perverse or not within the range of reasonable decisions open to it.

The EAT found that this was not a case where the tribunal found that there was unfairness because a relevant circumstance was not considered by the employer at all. To the contrary, the tribunal specifically found that the Claimant’s long service and the fact that this was a first offence were taken into account by the Respondent. Secondly, given that the tribunal found that the Respondent’s policies and procedures made it clear that conduct of this sort was considered to be potentially so serious that it could result in dismissal for a first offence, and, indeed, that they explained that, even if not directed at another employee, such conduct might amount to discriminatory harassment of colleagues exposed to it, and that this post was placed on an intranet used by the entire workforce, they did not find that it was reasonably open to the tribunal to conclude, if it did, that the Claimant’s prior clean record of long service meant that dismissal was outside of the reasonable band of responses.

The EAT therefore held that the tribunal had, in fact, substituted its own view for that of the Respondent and upheld both grounds of appeal. The EAT concluded that “any tribunal properly applying the law could not have concluded other than that dismissal, however harsh the tribunal might think the decision, was within the band of reasonable responses open to the employer in this case“. It held that the response was within the band of reasonable responses and therefore substituted a finding of fair dismissal.

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Parental Leave: Protection against dismissal can arise before employee gives notice to take parental leave

In Hilton Foods Solutions Ltd v Wright [2024] EAT 28 the EAT had to consider how protection from dismissal arises regarding parental leave. An employee is protected against being dismissed because s/he took parental leave. In broad terms, an employee is also protected if s/he ‘sought’ to take parental leave, pursuant to regulation 20 of the Maternity and Parental Leave Regulations 1999 (MAPLE Regs), SI 1999/3312. His Honour Judge Tayler noted that this appeal raises one point of construction; what is required for an employee to have ‘sought’ to take parental leave? The Respondent argued that the employee must have complied with certain formal requirements of the MAPLE Regs that are a prerequisite of exercising the right to take parental leave. The Claimant (Mr Wright) argued that whether an employee has sought to take parental leave is a question of fact for the appreciation of the Employment Tribunal having considered all the relevant evidence.

The EAT held that the use of the word ‘sought’ was of an ordinary English construction and therefore the question of whether an employee has ‘sought’ to take parental leave for the purposes of this regulation 20 should be based on a factual determination made by the employment tribunal having considered the relevant evidence and circumstances. In addition, it concluded that there is no absolute requirement that the employee must have given notice to take parental leave pursuant to paragraphs 1(b) and 3 of MAPLE Regs, Schedule 2.

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Whistleblowing: Employer cannot be vicariously liable for detriment caused by act of co-worker which amounts to dismissal

In Wicked Vision Ltd v Rice [2024] EAT 29, the Claimant brought a claim of automatic unfair dismissal against the Respondent on the basis that he was dismissed because he had made protected disclosures. The Claimant later tried to amend his claim, to add that the act of the dismissing officer in dismissing him was a detriment on grounds of whistleblowing for which the Respondent was liable. The tribunal allowed the amendment.

At appeal, the EAT disagreed with the tribunal and held that:

a claimant cannot claim that their employer (a company) is vicariously liable under section 47B(1B) of the Employment Rights Act 1996 (ERA 1996) for the act of a co-worker (in this case the company’s owner) for the ‘detriment of dismissal’; and
such a claim is barred by ERA 1996, s 47B(2) because the alleged detriment ‘amounts to dismissal (within the meaning of Part X)’ of ERA 1996.

Therefore the correct claim was the one originally made by the Claimant.

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Discrimination: Fired ‘Color Purple’ actor loses appeal over Christian beliefs

In Omooba v (1) Michael Garrett Associates Ltd (ta Global Artists) (2) Leicester Theatre Ltd [2024] EAT 30 the EAT held that a theatre company did not discriminate against a Christian actor when it dropped her from a role in a musical production of ‘The Color Purple’ over an anti-gay social media post.

The Claimant was an actor, cast to play the role of Celie in the stage production of ‘The Color Purple’. Celie is seen as an iconic lesbian role and, when the claimant’s casting was announced, a social media storm developed relating to a past Facebook post in which she had expressed her belief that homosexuality was a sin. The consequences of that storm led to the termination of the Claimant’s contracts with the theatre (the Second Respondent) and her agency (the First Respondent). Arising out of those events, she brought Employment Tribunal (“ET”) claims of religion and belief discrimination and harassment, and breach of contract. Shortly before the ET hearing, having only then read the script, the Claimant volunteered she would never in fact have played the part of Celie, and would have resigned from the role in due course. She continued with her claims, but these were all dismissed and an award of costs made against her.

The Claimant appealed against those decisions, and against a further order relating to the continued use of the hearing documents. The Respondents cross-appealed the ET’s finding that the Claimant had suffered detrimental treatment, its failure to find that there was an occupational requirement that the actor playing Celie had not manifested a belief such as that expressed in the Claimant’s Facebook post, and its failure to find that keeping the Claimant on the books of the agency would effectively have amounted to compelled speech.

The EAT dismissed the appeals. Although, contrary to the Respondents’ first ground of cross-appeal, it had been open to the ET to find that the Claimant had suffered detrimental treatment, it had not fallen into the error of confusing reason and motive but had permissibly found that, whilst the Claimant’s belief formed part of the context, it was not a reason for either her dismissal by the theatre or the termination of her agency contract. In the circumstances, it was unnecessary to rule on the occupational requirement or compelled speech arguments. As for the harassment claim, the ET had not failed to have regard to the impact on the Claimant of the social medial storm (the “other circumstances” for the purposes of section 26(4)(b) Equality Act 2010), but had found that the Respondents had not caused, or contributed to, that circumstance, and permissibly found that the Claimant’s treatment had not reasonably had the requisite effect.

The ET had also been entitled to reject the Claimant’s argument that any breach of ECHR rights would amount to a “violation of dignity”; that argument was academic, as the ET had not found that any of the Claimant’s ECHR rights had been infringed. The ET had also been correct to dismiss the Claimant’s breach of contract claim against the Second Respondent. She had been offered the full contract fee, so there was no pecuniary loss. Moreover, as the Claimant knew she would not play a lesbian character, but had not raised this with the theatre, or sought to inform herself as to the requirements of the role of Celie, she was in repudiatory breach of her express obligations, and of the implied term of trust and confidence. Although the Second Respondent was not aware of this at the date of termination, no damages (e.g. for loss of publicity/enhanced reputation) could be due.

In making a costs award against the Claimant, the ET had been entitled to reach the conclusion that her claims either had no reasonable prospect of success from the outset, or that they had no reasonable prospect once the Claimant realised that she would never in fact have played the role of Celie, or that the conduct of the claims had been unreasonable; as such it had permissibly found the threshold for a costs award was met. As for the Claimant’s objection to the amount of the award (the entirety of the Respondents’ costs, subject to detailed assessment), the ET: (i) was entitled to find that the change in the Claimant’s case had an effect on the entire proceedings, and (ii) had drawn inferences that were open to it on its findings as to the conduct of the Claimant’s case, such that it had permissibly taken into account the resources of those who had supported the litigation for their own purposes. As for the order restricting the future publication of all hearing documents, that had been a decision open to the ET under its powers of case management. It had had due regard to the open justice principle and been entitled to exercise its discretion in the way that it had.

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Equal Pay: Identification of decision-maker is not essential to material factor defence

In Scottish Water v Edgar [2024] EAT 32, the Claimant brought an equal pay claim under the Equality Act, 2010. Her comparator was a male employee with the same job title and within the same pay band who had been appointed after her. The Appellant raised a ‘material factor defence’ (i.e. the employer is able to give a genuine reason for the difference in pay between the Claimant and their comparator that is not related to gender) that the difference in pay was due to the comparator’s superior skills, experience and potential. The Appellant led evidence about discussions within its organisation about those matters and about the resultant level of salary ultimately offered to the comparator at the time of his appointment. It also sought to lead comparative evidence of the Claimant’s skills, experience and potential both at the time of and after his appointment.

The Employment Tribunal (ET) directed itself that the Appellant required to prove the identity of the pay decision-maker at the point in time when the comparator was engaged. It concluded that the Appellant had not done so, and that the material factor defence accordingly failed. It also directed itself that comparative evidence of the respective skills, experience and potential of the Claimant and the comparator in a period of time after the comparator’s appointment was irrelevant.

The EAT held that:

an employer does not need to prove the identity of the decision-maker in order to establish a material factor defence to an equal pay claim, and
comparative evidence of the respective skills and abilities of the claimant and the comparator from a period in time after the comparator’s appointment is not necessarily irrelevant to the employer’s defence, according to the EAT.

The ET’s judgment was set aside and the preliminary issue was remitted to a differently constituted tribunal. It was observed that the primary purpose of the reasons section of any decision of an ET should be to explain to the parties clearly and concisely why the tribunal reached its decision.

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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

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Employment Law General Update – February 2024

Employment,
26th February 2024

Employment Law

Welcome to our February employment law updates covering issues such as: the EHRC’s guidance on menopause in the workplace under the Equality Act, the National Minimum Wage sees latest amendments, over 500 companies are named and shamed for wage non-compliance. Discussions around ‘fire and rehire’ practices intensify, and updates on Skilled Worker and Family Immigration are announced, including changes limiting careworkers’ dependents and ending the Ukraine Family Scheme. Stay informed as we navigate these key developments.

Equality Act: EHRC issues menopause in the workplace guidance for employers
Pay: National Minimum Wage (Amendment) (No 2) Regulations 2024
Pay: 500+ companies named and shamed for not paying National Minimum Wage
Fire and Rehire: DBT publishes response to consultation on code of practice on dismissal and re-engagement
Immigration: Dates announced on Skilled Worker and Family Immigration
Immigration: Statement of Changes HC 556 stops careworkers from bringing dependants and ends Ukraine Family Scheme

Equality Act: EHRC issues menopause in the workplace guidance for employers

The Equality and Human Rights Commission (EHRC) has issued new guidance on menopause in the workplace, setting out employer’s legal obligations under the Equality Act 2010. The new guidance aims to clarify these obligations and provide practical tips for employers on making reasonable adjustments and fostering positive conversations about the menopause. If menopause symptoms have a long term and substantial impact on a woman’s ability to carry out normal day-to-day activities, they may be considered a disability. Under the Equality Act 2010, an employer will be under a legal obligation to make reasonable adjustments and to not discriminate against the worker. Additionally, workers experiencing menopause symptoms may be protected from less favourable treatment related to their symptoms on the grounds of age and sex.

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Pay: National Minimum Wage (Amendment) (No 2) Regulations 2024

The draft National Minimum Wage (Amendment) (No 2) Regulations 2024, which are due to come into force on 1 April 2024:

abolish the rate of the national minimum wage for workers who are aged 21 or over (but are not yet aged 23 years) so that workers aged 21 or over will now qualify for the national living wage, rather than a lower national minimum wage rate;
increase the rate of the national living wage for workers who are aged 21 or over from £10.42 to £11.44 per hour;
increase the rate of the national minimum wage for workers who are aged 18 or over (but not yet aged 21) from £7.49 to £8.60 per hour;
increase the rate of the national minimum wage for workers who are under the age of 18 from £5.28 to £6.40 per hour;
increase the apprenticeship rate for workers within SI 2015/621, reg 5(1)(a), (b), from £5.28 to £6.40 per hour;
increase the accommodation offset amount which is applicable where any employer provides a worker with living accommodation from £9.10 to £9.99 for each day that accommodation is provided.

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Pay: 500+ companies named and shamed for not paying National Minimum Wage

The Department for Business and Trade (DBT) has named more than 500 companies for not paying national minimum wage to over 172,000 employees. Defaulting employers have been ordered to repay these workers almost £16m to backfill these breaches. This is the 20th list to be published by the government since the introduction of the naming scheme in 2013 under which it publicly ‘names and shames’ employers who fail to pay the minimum wage. The ‘naming and shaming’ scheme was paused from July 2018 until it recommenced in February 2020 in a revised form.

Employers named include major high street brands, including Estee Lauder, Easyjet, Greggs, Wickes and River Island. One employer, Staffline Recruitment Ltd, failed to pay £5,125,270.93 to 36,767 workers.

The businesses named have since paid back what they owe to their staff and have also faced financial penalties of up to 200% of their underpayment. The investigations by His Majesty’s Revenue and Customs (HMRC) concluded between 2015 and 2023.

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Fire and Rehire: DBT publishes response to consultation on code of practice on dismissal and re-engagement

The Department for Business and Trade has published a response to the consultation on a draft statutory code of practice on dismissal and re-engagement. The consultation lasted from 24 January 2023 to 18 April 2023 and considered the action to be taken by employers when considering whether to dismiss and re-engage employees. As a result of the consultation, the government has made a number of changes to the draft code.

Changes to the code include:

a change to the sequencing of the code to ensure the sections on information sharing and consultation appear earlier;
the separate lists of information for employers to share located at paragraphs 25 and 33 have been combined;
the requirement for employers to conduct a full re-assessment of plans after information sharing and consultation;
changing the obligation to phase in changes to ‘best practice’;
a reduction in the length of the code and amendments to make it clearer and less technical;
a greater requirement on employers contacting ACAS prior to dismissal and re-engagement.

The full response can be found here.

The explanatory memorandum can be found here.

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Immigration: Dates announced on Skilled Worker and Family Immigration

The Minister of State for Legal Migration and the Border, Tom Pursglove MP, has made a Statement to the House of Commons giving more details of the timeline for various aspects of the five-point legal migration plan relating to the Skilled Worker and family migration routes. In terms of new announcements, he confirmed that there will be two sets of Statements of Changes in Immigration Rules, issued on 19 February 2024 and 14 March 2024, and the dates that the changes will come into force for these purposes.

The 19th February 2024 Immigration Rules will come into force on 11 March 2024 and will:

remove the right for care workers and senior care workers to bring dependants

ensure that care providers in England will only be able to sponsor migrant workers if they are undertaking activities regulated by the Care Quality Commission (CQC)

The 14 March 2024 Immigration Rules will:

raise the Skilled Worker general salary threshold from £26,000 to £38,000 (with some exceptions) from 4 April 2024, and remove the 20% going rate discount for occupations on the Shortage Occupation List (being renamed the Immigration Salary List), as well as temporarily add any occupations as recommended by the Migration Advisory Committee to the new Immigration Salary List
raise the minimum income threshold from 11 April 2024 from £18,600 to £29,000 (in due course it will be raised to £34,300 and then £38,700).

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Immigration: Statement of Changes HC 556 stops careworkers from bringing dependants and ends Ukraine Family Scheme

The Home Office has issued a new Statement of Changes in Immigration Rules HC 556, along with an Explanatory Memorandum (EM). The Statement makes anticipated changes as regards the dependants of careworkers and senior careworkers in the Skilled Worker/Health and Care visa route, and also makes a number of surprise and immediate changes to the Ukraine Schemes, including ending the Ukraine Family Scheme from 3pm on the 19^th February 2024.

Skilled Worker/Health and care visa route

The Statement implements the first part of the Home Secretary’s ‘Five-point plan for Legal Migration’, which seeks to reduce net migration, and removes the possibility for dependent partners and children to apply in the Skilled Worker/Health and Care visa route where the main applicant is applying in, or has leave in either Standard Occupational Code (SOC) codes 6145 (Care worker) or 6148 (Senior care worker). The change will not apply for dependants where the main applicant already has leave in Skilled Worker in either SOC code, or applied for entry clearance or leave in the route on or before 11 March 2024 (and also will not apply where such a main applicant subsequently applies to extend or change employer in either SOC code, or applies for settlement). It will also not apply for children born in the UK.

In addition, sponsors of persons initially applying in either SOC code on or after 11 March 2024 will be required to have Care Quality Commission (CQC) registration and to be currently carrying out a regulated activity. Similar transitional provisions apply as above for further applications by persons who were granted leave under the Rules on or before 10 March 2024 as regards working for a sponsor which does not meet the new requirements.

These changes are effected via amendments to Appendix Skilled Worker, Appendix Skilled Occupations and Appendix Shortage Occupation List of the Immigration Rules. They come into force for applications submitted on and after 11 March 2024. The EM states that the changes are being made ‘in response to high levels of non-compliance and worker exploitation and abuse, as well as unsustainable levels of demand’. It goes on to say that ‘in the year ending September 2023, 83,072 visas were granted for care workers and a further 18,244 visas for senior care workers, comprising 30% of all work visas granted. In addition, there were 250,297 visas granted for work-related dependants, 69% of which were for Health and Care Worker dependants.’

Ukraine Schemes

Closure of the Ukraine Family Scheme

The Statement announces the closure of the Ukraine Family Scheme from 3pm on 19 February 2024. The Ukraine Family Scheme allowed British nationals and those with a qualifying immigration status to sponsor family members. This included immediate and extended family members, as well as the immediate family members of extended family members (e.g. a British national could sponsor a cousin and their children).

Going forwards many people who could have applied under the Ukraine Family Scheme will have to apply under the Homes for Ukraine Sponsorship Scheme instead. This requires an offer of six months accommodation, assessed as suitable by the local authority.

Persons impacted by this change may need advice on alternative immigration options, such as making a human rights claim to join family in the UK.

Reduction in period of leave to 18 months

Ukraine Scheme visa-holders have been receiving three years leave. From 3pm on 19 February 2024 a positive grant of leave will only result in 18 months leave to remain, rather than three years leave. This affects persons who applied before the change in the law and have not yet received a decision on their case.

A limited exception is for unaccompanied minors, who will still receive three years leave, so long as they made their initial hosting application before 3pm on 19 February 2024, even if the local authority check takes place later. Unaccompanied minors who apply after that date will still only receive 18 months leave.

Extension scheme to close on 16 May 2024 except for some children born in the UK

The Ukraine Extension Scheme allows Ukrainians with a time-limited visa in the UK to switch into the Ukraine Scheme, recognising that Ukrainians cannot be expected to return to Ukraine. The deadline to apply has been changed, but it appears that there are currently no plans to increase the 16 May 2024 deadline for the Scheme. This will mean that Ukrainians on other visas, including visit, student, seasonal worker and family visas, will no longer be able to switch into the Ukraine Extension Scheme from that date.

The Statement creates an exception to the closure of the Ukraine Extension Scheme for children born in the UK to a parent who has leave under the Ukraine Scheme. This will come into force on 11 March 2024. The children will receive leave in line with their parent (or if both parents are here, in line with whichever parent’s leave expires last). Such children have been using this scheme informally already, but it is helpful to see a provision in the Rules. Unfortunately, the new provision is silent on what children born outside the UK to a parent with a Ukraine Scheme visa should do.

Additional grounds for refusal

Part 9 of the Immigration Rules sets out general grounds for refusal of immigration applications on character grounds. Only some of those criteria have so far applies to Ukraine Scheme applications and mainly those focused on criminality. The Statement provides that from 3pm on 19 February 2024 additional grounds for refusal will apply, including previous breaches of immigration laws, failures to provide information when required and other general grounds for refusing entry clearance or cancelling permission on arrival. Anecdotally, there have been some cases of arrivals from Ukraine who do not have the right documentation and so this may be a response to that. This does however indicate a tightening up of visa controls for Ukrainians.

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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

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News & Views

Employment Law General Update – May 2023

Employment,
29th May 2023

Employment Law

This month’s news provides an update on the effect of the Retained EU Law Bill and the scrapping of the sunset clause, a new smart regulation from the DBT, a report on the post-pandemic economic growth in the UK labour markets, new guidance from ACAS on both managing stress at work and making reasonable adjustments for mental health at work, a new podcast from the HSE to support disabled people in the workplace and a consultation from the EBA on the benchmarking of diversity practices. Lastly, we have the results of research carried out on unfair treatment of parents following fertility treatment.

Brexit: Government scraps the proposed sunset clause from the Retained EU Law Bill and Minister confirms effect of the Bill on equality and employment rights
Employment Law: Department for Business and Trade – Smart regulation unveiled to cut red tape and grow the economy
Flexible Working: House of Commons Committee report on post-pandemic economic growth in UK labour markets
Health at Work: ACAS publishes new guidance on managing stress at work and making reasonable adjustments for mental health at work
Disability: HSE launches podcast to support disabled people in the workplace
Diversity: EBA publishes consultation on guidance on benchmarking of diversity practices
Sex Discrimination: Research reveals unfair treatment at work after fertility treatment

Brexit: Government scraps the proposed sunset clause from the Retained EU Law Bill and Minister confirms effect of the Bill on equality and employment rights

On 10 May 2023, the government announced that it will scrap the proposed sunset clause from the Retained EU Law (Revocation and Reform) Bill. As we have previously reported in our Employment Law News, the sunset clause would have meant that most retained EU law in secondary legislation would have been revoked at the end of 2023. Instead at least 600 pieces of retained EU law will be set out in a revocation schedule, which can be found here. Any laws not listed in the revocation schedule will be retained automatically.

Meanwhile, the Department for Business and Trade has published a response to a letter by the Rt Hon Caroline Nokes MP, Chair of the Women and Equalities Committee, requesting further explanation about the Retained EU Law Bill’s effect on equality rights and protections. The response by the Rt Hon Kemi Badenoch MP, Minister for Women & Equalities, confirms that the Retained EU Law Bill does not intend to undermine equality rights and protections, employment rights or maternity rights in the UK. It sets out that most equality protections will remain unaffected, as they are provided for in primary legislation, in particular the Equality Act 2010 (to which no changes are expected because of the Bill) and any relevant secondary legislation and additional instruments will be considered.

It also highlights that where additional provision is required, the Bill enables the UK Government and the devolved governments to protect the rights and protections of UK citizens. This includes a restatement power which allows departments to codify rights into domestic legislation. The response emphasises that this power will secure rights and protections, by laying them out accessibly and clearly in statute.

Employment rights

The response sets out that the government does not intend to amend workers’ legal rights through the Bill, that the UK provides for greater protections for workers than are required by EU law and that the government remains committed to making sure that workers are properly protected in the workplace.

Parental leave

The response emphasises that the repeal of maternity rights is not and has never been government policy, and that the UK is in fact further along than the EU when it comes to maternity rights.

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Employment Law: Government’s “Smart regulation unveiled to cut red tape and grow the economy”

On the 10 May 2023 the Department for Business and Trade published its paper “Smarter regulation unveiled to cut red tape and grow the economy” which the government describes as “the first dynamic package of deregulatory reforms to grow the economy, cut costs for businesses and support consumers …”

The governments announcements include the following proposed amendments to employment law:

The government is proposing to remove retained EU case law that requires employers to record working hours for almost all.

Making rolled-up holiday pay lawful. Rolled up holiday pay is where an employer includes a sum representing holiday pay in an enhanced hourly rate rather than continuing to pay workers as normal when they actually take leave. This was ruled to be in breach of the Working Time Directive by the ECJ well over a decade ago.
The merger of annual leave (20 days derived from the EU’s Working Time Directive) and additional leave (being the additional 8 days holiday provided under the Working Time Regulations). Whilst this appears to be sensible it will be interesting to see how the European case law which specifically applies to the 20 days annual leave, such as what constitutes holiday pay and taking such holiday in the year in which it falls, is dealt with.
TUPE – there are proposals to do away with the need for elections of employee representatives for businesses with fewer than 50 employees or transfers of fewer than 10 employees.

The government has launched consultation on these points.

The government has also proposed limiting the length of non-compete clauses to three months. This will require the passing of legislation, which, the government says will be dealt with when parliamentary time allows.

So we wait to see exactly what legislative changes come about following these announcements.

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Flexible Working: House of Commons Committee report on post-pandemic economic growth in UK labour markets

A House of Commons Committee report says the government must reconsider the need for an Employment Bill in the upcoming King’s Speech to address gaps in employment protections. The government has two months to respond to the committee’s proposals which are on topics including the machinery of government with responsibility for labour market policy; technology and skills development; workers’ rights and protection; and older workers.

The report, which follows on from a Call for Evidence on the state of play in the UK Labour market post-Brexit and the COVID-19 pandemic, highlights that:

with 500,000 people having left the British workforce since the start of the pandemic, a shortage of labour weighs heavily on the potential for economic growth;
economic inactivity has risen among people aged 50 to 64 years;
the way in which the recommendations of the Taylor Review have been implemented has been fragmented and drawn-out;
the enforcement of labour market rules is under-resourced.

It calls on the government to:

consider establishing a Ministry of Labour and appoint a new Minister of State for Labour in the Cabinet, as well as a Cabinet Committee on Labour;
take various actions in respect of technology and skills;
reconsider the need for an Employment Bill in the upcoming King’s Speech to address gaps in employment protections;
consider new legal structures for flexible work that include appropriate rights and protections for workers;
provide more protection for workers from any damaging effects of night-time working;
pursue the creation of the planned single enforcement body which would clarify rights of redress for those most in need;
continue and expand support for older workers.

It also calls on businesses to:

be more open to create more flexible constructions of work;
offer more flexible working opportunities to benefit from a huge untapped pool of older workers and to assess whether their recruitment practices and workplaces are ‘ageist’.

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Health at Work: ACAS publishes new guidance on managing stress at work and making reasonable adjustments for mental health at work

Managing stress at work:

ACAS has published new advice for employers on managing stress at work after YouGov revealed 33% of British workers disagreed that their organisation was effective at managing work-related stress. YouGov was commissioned by ACAS and surveyed just over 1,000 employees in Great Britain. ACAS sets out that stress can be caused by demands of the job, relationships at work, poor working conditions and life events outside of work such as financial worries. An ACAS poll in March 2023 revealed that 63% of employees felt stressed due to the rising cost of living.

Advice for employers on managing stress at work include:

looking out for any signs of stress among staff. Signs include poor concentration, tiredness, low mood and avoiding social events;
being approachable available and have an informal chat with staff who are feeling stressed;
respecting confidentiality and being sensitive and supportive when talking to staff about work-related stress;
communicating any internal and external help available to staff such as financial advice if the cost of living is a cause of stress.

ACAS states that creating a positive work environment can make employees healthier and happier at work, reduce absence levels and improve performance.

ACAS advice on managing stress can be accessed here.

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Making reasonable adjustments for mental health at work:

ACAS has published new guidance for employers and workers on reasonable adjustments for mental health. ACAS states that ‘employers should try to make reasonable adjustments even if the issue is not a disability’. The guidance covers:

what reasonable adjustments for mental health are;
examples of reasonable adjustments for mental health;
what reasonable adjustments can be made for mental health;
requesting reasonable adjustments for mental health;
responding to reasonable adjustments for mental health requests;
managing employees with reasonable adjustments for mental health;
reviewing policies with mental health in mind.

ACAS has also published case studies exploring how different organisations have helped staff with reasonable adjustments for mental health.

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Disability: HSE launches podcast to support disabled people in the workplace

The Health and Safety Executive (HSE) has launched a new podcast aiming to help employers support disabled workers and those with long-term health conditions in the workplace. The podcast features discussion by host Mick Ord, former BBC Radio journalist, Moya Woolley, Occupational Health Policy Team Leader at HSE and Rebecca Hyrslova, Policy Advisor at Federation of Small Businesses (FSB); and offers advice for employers on how to create a supportive and enabling workplace, take an inclusive approach to workplace health, understand the work barriers that impact on workers, make suitable workplace adjustments or modifications, develop skills, knowledge and understanding, use effective and accessible communication, and support sickness absence and return to work.

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Diversity: EBA publishes consultation on guidance on benchmarking of diversity practices

The European Banking Authority (EBA) has launched a consultation on guidelines on the benchmarking of diversity practices including diversity policies and the gender pay gap pursuant to Articles 75(1) and 91(11) of the Capital Requirements Directive IV (Directive 2013/36/EU) (CRD IV) and Article 34(1) of the Investment Firms Directive (Directive (EU) 2019/2034). The EBA has been collecting data on diversity since 2015 based on information requests. The EBA hopes that the issuance of these guidelines will lead to a higher level of transparency regarding the EBA’s work on the topic of diversity and gender equality and will help improve the quality of the collected data as well as the awareness of all stakeholders on these topics. The new reporting format is expected to apply for the collection of data in 2025 for the financial year 2024. Responses are sought to the consultation by 24 July 2023.

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Sex Discrimination: Research reveals unfair treatment at work after fertility treatment

Pregnant Then Screwed published a press release during Infertility Awareness Week revealing the unfair treatment women face in the workplace due to their reproductive health. Research has revealed that of the 43% of women who informed their employer of their fertility treatment, one in four did not receive any support from their employer. One in four women also experienced unfair treatment because of undergoing fertility treatment. Unfair treatment was also experienced by 22% of women who disclosed their pregnancy loss to their employer while 6% of partners who disclosed the same faced negative treatment.

The press release confirms Pregnant Then Screwed will be launching a new programme to help employers deal with reproductive health issues in the workplace better. They will be hosting a Women in the Workplace seminar for businesses to find out more about the new training and accreditation scheme which signals fertility friendly employers. This free event will take place in June 2023.

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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

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Employment Law Case Update – January 2023

Employment,
24th January 2023

Employment Law

We start off the new year with a Court of Appeal decision on whether a worker who declined to go back to work for fear of COVID-19 was unfairly dismissed or not, the first of its kind at this level. We also take a look at two discrimination cases, a Court of Justice of the European Union case about requirements on employers to provide ‘special corrective appliances’ (such as glasses), and a claim for misuse of private information concerning the reasonable expectation of privacy in private WhatsApp messages.

COVID-19: First Court of Appeal decision on the application of ERA 1996, s.100(1)(d) to COVID-19 dismissals
Discrimination: Whether PCP requiring disabled employee to work full-time had been applied, despite employer having part-time roles
Discrimination: Narrow test for marital status discrimination confirmed
Health & Safety at Work: Display screen equipment and the provision of spectacles by employers
Data Protection: Misuse of private information and abuse of process

COVID-19: First Court of Appeal decision on the application of ERA 1996, s.100(1)(d) to COVID-19 dismissals

In Rodgers v Leeds Laser Cutting [2022] EWCA Civ 1659, the claimant worked for the respondent as a laser operative in a large warehouse-type space about the size of half a football pitch in which usually only five people would be working. Following the first national ‘lockdown’ on 23 March 2020, the respondent told employees that the business would remain open, asked staff to work as normally as possible and stated ‘we are putting measures in place to allow us to work as normal’. Recommendations were made by an external risk assessment covering most of the things which were already in place before it was undertaken. The claimant left work as usual on 27 March 2020, having not made any complaint about his conditions at work. He obtained a self-isolation note until 3 April 2020 due to having a cough. On 29 March 2020, the claimant told his line manager he had to self-isolate because one child was high risk with sicklecell and a 7 month old baby. His manager agreed. Unfortunately, during this period he drove a friend who had broken his leg to hospital and at some point worked in a pub during the lockdown. On 24 April 2020 he found out he’d been dismissed and was sent his P45.

The claimant made a claim for unfair dismissal on the grounds of health and safety. Under the Employment Rights Act 1996 (ERA 1996), s.100(1)(d), any dismissal of an employee will be automatically unfair, if the reason (or, if more than one, the principal reason) for the dismissal is that, in circumstances of danger which the worker/employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, the employee:

left or proposed to leave, or
(while the danger persisted) refused to return to

their place of work or any dangerous part of their place of work. ‘Dangers’ in this context are not limited to dangers arising out of the workplace itself, but also cover dangers caused by the behaviour of fellow employees.

The questions that the employment tribunal has to decide in a case under ERA 1996, s.100(1)(d) are:

Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:
Was that belief reasonable? If so:
Could they reasonably have averted that danger? If not:
Did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? If so:
Was that the reason (or principal reason) for the dismissal?

The tribunal rejected the claim for a number of reasons, including that his evidence was inconsistent, his beliefs of serious imminent danger were not supported by his actions (driving his friend to hospital and working in a pub) and not related to his workplace but to the world at large, he had made no complaint about his specific working conditions, and the measures put in place by the employer (if followed) would make the business as safe as possible from infection.

The claimant appealed, arguing that the tribunal had erred in law by concluding that because his belief was one of a serious and imminent danger at large (i.e. in the whole community), his belief that his workplace presented a serious and imminent danger was not objectively reasonable. The Court of Appeal, like the EAT before it, dismissed the appeal because the claimant’s case failed on its own facts. While the coronavirus pandemic could, in principle, give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent, this was not the situation in this particular claimant’s case in respect of his workplace.

The Court of Appeal has confirmed that, on the particular facts of this case, where the employee refused to return to work during the coronavirus (COVID-19) pandemic in circumstances where the employer had put in place social distancing in the workplace and other measures like handwashing and face masks, the employment tribunal did not err in law in concluding that the claimant had not reasonably believed that there were circumstances of danger which were serious and imminent, or which could not be reasonably averted, and as result the dismissal was not automatically unfair under section 100(1)(d) of the Employment Rights Act 1996 (ERA 1996).

Guidance was given on the interpretation of ERA 1996, s 100(1)(d) including that:

it is sufficient that the employee had a (reasonable) belief in the existence of the danger as well as in its seriousness and imminence. They do not also have to prove that objectively such circumstances of danger did in fact exist;
the subsection does not apply where the perceived danger arose on the employee’s journey to work. The perceived danger must arise at the workplace. However it does not follow that the danger need be present only at the workplace;
while the paradigm case under ERA 1996, s 100 (1)(d) is where a danger arises by reason of some problem with the premises or equipment, there is nothing about the risk of employees infecting each other with a disease that takes it outside the scope of the subsection: the tribunal will have to decide whether on the particular facts of each case it amounts to a serious and imminent danger.

While the outcome of this case ultimately turned on its own particular facts, the judgment is nonetheless of interest because it is the first appeal to reach the Court of Appeal on the application of ERA 1996, s 100(1) to dismissals related to the coronavirus (COVID-19) pandemic.

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Discrimination: Whether PCP requiring disabled employee to work full-time had been applied, despite employer having part-time roles

In Davies v EE Ltd [2022] EAT 191, the EAT considered what amounted to a provision, criterion or practice (PCP) for the purposes of a disability discrimination claim relating to an alleged failure to make reasonable adjustments.

The employee, who was employed full-time, relied on two PCPs, which she contended had left her at a substantial disadvantage: (i) a requirement for employees to complete a full-time working pattern of 40 hours per week, with each shift approximately 9½ hours in length, and (ii) a requirement for employees to complete the shifts without agreeing any reduction in hours. The employment tribunal held that because the respondent employed some employees on a part-time basis and had allowed the claimant a phased return to work, neither PCP had been made out on the facts.

The EAT held that the tribunal had erred in law in concluding that the fact that the employer had other staff who worked part-time had meant that a PCP of requiring the employee to work her contracted hours of 40 per week had not been applied to her. Also, the fact that a temporary adjustment had been made during the employee’s phased return to work did not mean that the PCP had ceased to exist.

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Discrimination: Narrow test for marital status discrimination confirmed

In Ellis v Bacon [2022] EAT 188, the EAT considered a matter of two married director/shareholders whose messy divorce impacted the divorcing wife’s income from the company. Another director, Mr Ellis, sided with the husband, Mr Bacon, in relation to the marital dispute and was compliant with him in removing the Mrs Bacon’s directorship, not paying her dividends, reporting her to the police and suspending and dismissing her on spurious grounds. The employment tribunal held that these actions involved less favourable treatment by Mr Ellis against Mrs Bacon because of her marital status as a wife to Mr Bacon. Mr Ellis appealed.

The EAT held that in a claim of direct discrimination because of the protected characteristic of marriage, the employment tribunal must consider whether it was the claimant’s marital status which was the cause of the less favourable treatment and not the fact that they were married to a particular person. Further, an appropriate hypothetical comparator is someone in a close relationship but not married, and the tribunal must consider whether such a person would have been treated differently.

A person directly discriminates against another person where they treat them less favourably than they treat or would treat others, and they do so because of a protected characteristic. Marriage and civil partnership are protected characteristics. A person has the protected characteristic of marriage if the person is married (which includes a person who is married to a person of the same sex); of civil partnership if the person is a civil partner. Note that people who are not married, or not civil partners, do not have this protected characteristic.

Cases on discrimination because of marriage are very rare. This judgment confirms that the test is to be narrowly construed, with the causative reason for the less favourable treatment being the marital status and not:

the identity of the spouse, or
the closeness of the relationship.

As a result, there seems very limited scope for claimants to bring successful claims in the context of modern society and the legal concept of protection on grounds of marital status looks increasingly like an outdated concept.

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Health & Safety at Work: Display screen equipment and the provision of spectacles by employers

In TJ v Inspectoratul General pentru Imigrări, C-392/21, the Court of Justice of the European Union held that Article 9 of Council Directive 90/270/EEC, on the minimum safety and health requirements for work with display screen equipment, which is implemented in the UK by regulation 5 of the Health and Safety (Display Screen Equipment) Regulations 1992, must be interpreted as follows:

there is no requirement for a causal link between display screen work and potential visual difficulties;
‘special corrective appliances’ include spectacles aimed specifically at the correction and prevention of visual difficulties relating to work involving display screen equipment;
those ‘special corrective appliances’ are not limited to appliances used exclusively for professional purposes, i.e. they may be used at other times too; and
the employer’s obligation to provide the workers concerned with a special corrective appliance may be met by the direct provision of the appliance to the worker by the employer or by reimbursement of the necessary expenses incurred by the worker, but not by the payment of a general salary supplement to the worker.

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Data Protection: Misuse of private information and abuse of process

In FKJ v RVT [2023] EWHC 3 (KB), which concerned a claim for misuse of private information, the court considered the extent to which there can be a reasonable expectation of privacy in private WhatsApp messages found at work, and how such material should be dealt with in the context of ongoing legal proceedings. FKJ brought a claim in the employment tribunal against her former employers on the grounds of sex discrimination, unfair dismissal and wrongful dismissal, amid allegations of sexual harassment by the first defendant, RVT. FKJ lost that employment tribunal claim, in large part due to evidence deployed by RVT which consisted of some 18,000 of FKJ’s private WhatsApp messages. Prior to that tribunal hearing, the defendants had come to be in possession of a complete log of messages exchanged between FKJ and both her partner and her best friend, some of which were ‘of the most intimate kind’. FKJ brought a claim for misuse of private information.

While there was some dispute over how RVT came to be in possession of these messages, spanning a period of two years, FKJ only became aware of them being in his possession when she received the defendants’ grounds of resistance in the employment tribunal proceedings. FKJ chose not to seek exclusion of those messages from evidence, or to seek aggravated damages as a result of RVT’s conduct. Instead, FKJ chose to pursue a claim for misuse of private information in the High Court.

RKJ brought a counter claim grounded in the common law torts of malicious prosecution and abuse of process, and harassment under the Protection from Harassment Act 1997. RVT also sought to strike out the claim and seek summary judgment on his counterclaim. As a fall back, the defendants sought payment of significant sums into court by FKJ as a condition of the proceedings continuing.

The court gave short shrift to the defendants’ applications, reaching the ‘clear conclusion that they are without merit’. Parts of the applications were ‘not worthy of serious consideration’ and appeared to be ‘an attempt to stifle a claim that the defendants would prefer not to contest on its merits’. Both the strike out and summary judgment applications were dismissed.

[Written by Charlotte Clayson, partner at Trowers & Hamlins LLP, for Lexis+.]

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

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Employment Law Case Update – September 2022

Employment,
26th September 2022

Employment Law

Whilst strikes were temporarily abandoned in England as a mark of respect for the passing of Queen Elizabeth II and her funeral, the unions have not been resting. Several unions have started judicial review proceedings against the government in response to new regulations regarding the use of supply agency workers. The tribunals have been reviewing COVID-related employment issues, how far a belief in one’s football team can be stretched and protecting a woman’s right to a private life versus the rights of the claimant to a fair trial and freedom of expression. The Supreme Court, meanwhile, has been considering the matter of confiscating earnings received by a CEO who got the job by lying about his experience.

Strikes: Unions commence judicial review of regulations permitting supply of agency workers during strikes
COVID-19: Two and a half weeks is not long enough for long COVID to become a disability
COVID-19: Requirement for employees to exhaust holiday and TOIL before receiving further paid leave for COVID-related absences was not discriminatory
Equality Act: Supporting a football club is not a protected philosophical belief
Human Rights: EAT makes anonymity order to protect non-party and non-witness who was subject of false lurid sexual allegations
Fraud: A confiscation order should strip the profit from fraudulently obtained employment

Strikes: Unions commence judicial review of regulations permitting supply of agency workers during strikes

Separate but similar judicial review proceedings have been issued by unions in response to new regulations that allow employment businesses to supply agency workers to replace striking staff.

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852) came into force on 21 July 2022 and have already resulted in a report by the TUC to the International Labour Organization over alleged infringement of workers’ rights to strike.

Unison issued proceedings in the High Court on 13 September 2022, arguing that the government’s decision is unfair and is based on unreliable and outdated evidence from a 2015 consultation. It also argues that the government has failed to consider Article 11 of the European Convention on Human Rights (ECHR) which protects the right to freedom of association, and international labour standards on the right to strike.

On 20 September 2022, the TUC began similar proceedings in collaboration with 11 other unions, arguing that the Secretary of State failed to consult unions, in contravention with the Employment Agencies Act 1973, and that the regulations violate Article 11 of the ECHR. The teachers’ union, NASUWT, has also announced its intention to issue proceedings. The claims are all likely to be heard together.

A response is required from the Business Secretary, Jacob Rees-Mogg MP, within 21 days of proceedings being issued.

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COVID-19: Two and a half weeks is not long enough for long COVID to become a disability

In Quinn v Sense Scotland ETS/4111971/2021, an employment tribunal has determined that an employee who caught COVID-19 two and a half weeks before her dismissal did not have long COVID and was not disabled under section 6 of the Equality Act 2010 (EqA 2010) at the relevant time.

Mrs Quinn was employed as Head of People. She tested positive for COVID-19 on or around 11 July 2021. She subsequently experienced fatigue, shortness of breath, pain and discomfort, headaches, and brain fog. These symptoms affected her everyday life and disrupted her sleep. She struggled with shopping and driving and stopped socialising and exercising. On 26 July, she contacted her GP to arrange an appointment. On 27 July, she was dismissed from her employment. She consulted with her GP on 2, 8 and 22 August, during which time she was deemed unfit to work due to ongoing symptomatic COVID-19. On 12 September, she was deemed unfit to work due to post-COVID-19 syndrome and diagnosed with long COVID.

Mrs Quinn brought a direct disability discrimination claim, among other claims. As a preliminary issue, a tribunal had to determine whether she was disabled at the time of her dismissal. She relied on the impairment of long COVID including having COVID-19 for longer than normal. She submitted that COVID-19 and long COVID are part of the same condition, and that other 50-year-old women with no underlying health conditions recovered more quickly than her after two weeks. Consequently, it could have been predicted that she would experience long COVID.

An employment tribunal found that she was not disabled under the EqA 2010 for the following reasons:

At the time of her dismissal, she did not have long COVID. She was not diagnosed with long COVID until some six weeks later.
While the impairment of COVID-19 had a substantial adverse effect on her ability to carry out normal day-to-day activities, this effect had lasted only two and a half weeks at the relevant time and was not long term.
The substantial majority of people who catch COVID-19 do not develop long COVID. Accordingly, it cannot be said that the risk of developing long COVID “could well happen“.

Mrs Quinn’s case could be distinguished from that of Mr Burke, who had been absent from work with COVID-19 for nine months at the time of his dismissal.

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COVID-19: Requirement for employees to exhaust holiday and TOIL before receiving further paid leave for COVID-related absences was not discriminatory

In Cowie and others v Scottish Fire and Rescue Service [2022] EAT 121 , the EAT (Eady P) has held that it was not discriminatory for the fire service to require employees to have used up accrued holiday and time off in lieu (TOIL) before being eligible to apply for additional paid “special leave” to cover COVID-19 related absences.

Two groups of employees brought discrimination claims in relation to this requirement. One group alleged indirect sex discrimination under section 19 of the Equality Act 2010 (EqA 2010) and the other alleged discrimination arising from disability under section 15 of the EqA 2010.

The tribunal dismissed the section 19 claims because there was no evidence of group disadvantage to women. It upheld the section 15 claims, agreeing that the requirement to exhaust holiday and TOIL was unfavourable treatment. However, it did not award any compensation since there was no evidence of any injury to feelings. The claimants and the employer appealed to the EAT.

The EAT allowed the employer’s appeal. In relation to the section 15 claims, the tribunal had identified the relevant treatment as being the requirement to use up holiday and TOIL. However, this requirement only arose when the claimants sought access to paid special leave. It was wrong to separate the conditions applicable to the benefit from the benefit itself. The relevant treatment was therefore the granting of paid special leave. This was clearly favourable treatment. The treatment could have been more favourable if the conditions were removed, but it did not become unfavourable simply because it could, hypothetically, have been more favourable.

The same error arose in relation to the section 19 claims. The PCP was defined as the requirement to exhaust TOIL or annual leave. However, the PCP only operated in the context of the paid special leave policy. Since the provision of paid special leave was clearly favourable, the PCP could only amount to a disadvantage if the conditions of entitlement were artificially separated from the benefit itself.

The EAT therefore found that neither the section 15 nor the section 19 claims could succeed. Nevertheless, it considered and rejected the claimants’ grounds of appeal, finding that the tribunal had been entitled to conclude that there was not sufficient evidence:

To show group disadvantage in the section 19 claims.
To justify an award of compensation for injury to feelings in the section 15 claims.

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Equality Act: Supporting a football club is not a protected philosophical belief

At a preliminary hearing in McClung v Doosan Babcock Ltd and others [2022] UKET/4110538, an employment tribunal has held that supporting Rangers Football Club (Rangers) does not amount to a protected philosophical belief within the meaning of section 10(2) of the Equality Act 2010 (EqA 2010).

Mr McClung had supported Rangers for 42 years, was a member of the club and received yearly birthday cards from them. He never missed a match and spent most of his discretionary income on attendance at games, as well as watching them on television. He believed supporting Rangers was a way of life and as important to him as attending church is for religious people.

The tribunal defined Mr McClung’s belief as being a supporter of Rangers but concluded that it was not capable of being a protected philosophical belief. While it was not in dispute that the belief was genuinely held, the tribunal concluded that the remaining Grainger criteria were not satisfied for the following reasons:

The tribunal had regard to the explanatory notes to the EqA 2010 which provide that adherence to a football team would not be a belief capable of protection. The definition of “support” (being “actively interested in and concerned for the success of” a particular sports team) contrasted with the definition of “belief” (being “an acceptance that something exists or is true, especially one without proof”). Mr McClung’s support for Rangers was akin to support for a political party, which case law had made clear does not constitute a protected philosophical belief.
Support for a football club is akin to a lifestyle choice. It did not represent a belief as to a weighty or substantial aspect of human life and had no larger consequences for humanity as a whole. There was a wide range of Rangers fans with varying reasons behind their support, shown in different ways.
There was nothing to suggest fans had to behave, or did behave, in a similar way. Support for the Union and loyalty to the Queen were not prerequisites of being a Rangers supporter as Mr McClung had submitted. The only common factor was that fans wanted their team to do well. It therefore lacked the required characteristics of cogency, cohesion and importance.
Support for Rangers did not invoke the same respect in a democratic society as matters such as ethical veganism or the governance of a country, which have been the subject of academic research and commentary.

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Human Rights: EAT makes anonymity order to protect non-party and non-witness who was subject of false lurid sexual allegations

In Piepenbrock v London School of Economics and Political Science [2022] EAT 119, the EAT has held that the identity of a non-party and non-witness (Ms D) was entitled to the benefit of an anonymity order. False lurid allegations of a sexual nature had been made against her, and not granting the order would lead to a substantial risk of her right to a private life under Article 8 of the European Convention on Human Rights (ECHR) being infringed. Moreover, there was a substantial risk that the claimant, Dr Piepenbrock, who had made the allegations against Ms D, would abuse the court system in a manner contrary to the interests of justice, which would have a serious detrimental effect on Ms D.

HHJ Shanks held that these considerations substantially outweighed the principle of open justice, Dr Piepenbrock’s right to a fair trial under Article 6 of the ECHR and his right to freedom of expression under Article 10, as well as other parties’ rights under Article 10, including the press. Granting the order sought would not seriously impact these rights and principles, as it would remain open to anyone to describe the case in all its detail, save for the identity of Ms D. The fact that the central allegation against Ms D was lurid and found to be untrue substantially reduced the weight to be accorded to the Article 10 rights at play.

The EAT granted an indefinite order protecting Ms D’s identity from becoming public and maintaining Ms D’s anonymity in an earlier EAT judgment. The order also limited access to documents lodged with the EAT and prevented Dr Piepenbrock or anyone else from disclosing Ms D’s identity. This case serves to highlight the EAT’s power to act to protect individuals’ rights under the ECHR, even where there is no express rule of procedure in the EAT Rules to that effect.

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Fraud: A confiscation order should strip the profit from fraudulently obtained employment

In R v Andrewes [2022] UKSC 24, the appellant obtained a CEO position, falsely claiming he had qualifications and relevant experience. He was appointed in December 2004 and remained in post until March 2015. He would not have been appointed had the true position been known. During his time as CEO, he was regularly appraised as either strong or outstanding.

In January 2017, he pleaded guilty to one count of obtaining a pecuniary advantage by deception and two counts of fraud. He was sentenced to two years’ imprisonment, and the Crown sought a confiscation order against him. His net earnings during the relevant period were £643,602.91. The available amount was agreed to be £96,737.24, and the judge ordered confiscation of that sum. The Court of Appeal allowed the appellant’s appeal and made no confiscation order, holding that to impose such would be disproportionate. The Crown appealed to the Supreme Court.

Appeal allowed, and confiscation order restored, albeit for different reasons:

It would be disproportionate to make a confiscation order of the full net earnings as not making any deduction for the value of the services rendered would amount to a further penalty.
The legal burden of proof in respect of section 6(5) is on the prosecution who must establish that it would not be disproportionate to require the defendant to pay the recoverable amount.
When considering proportionality, the court should seek to confiscate the difference between the higher earnings obtained through fraud and the lower earnings that would have been obtained if there had been no fraud. This approach takes away the profit made by the fraud.
The Court held a confiscation order of £244,568 would be proportionate as this represented the 38% difference between his pre-appointment earnings (£54,000 gross) and his post appointment income (£75,000 gross and £643,000 over the course of his fraudulently obtained employment). The recoverable amount was still £96,737.24.

This decision comes across as the kind of compromise more suited to civil litigation than confiscation. The court correctly distinguishes between a job that would have resulted in illegal performance, but acknowledges the appellant stood no chance of getting the job without the falsification of his qualifications. The court was explicit as to its justification for this pragmatic approach, “This is to adopt a principled ‘middle way’ in contrast to either a ‘take all’ approach or a ‘take nothing’ approach“. One wonders if this apparently principled approach will actually lead to fewer appeals on the issue of proportionality in such CV type cases.

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Employment Law Case Update – July 2022

Employment,
27th July 2022

Employment Law

This month we look at the saga of the ‘fire and rehire’ issue affecting Tesco employees and how whistleblowers can be fairly dismissed depending on their conduct. We also have two interesting cases about how direct discrimination can be viewed – the doctor who refused to address transgender people by their chosen pronouns who had not been discriminated against versus the feminist who expressed beliefs which could not be objected to (as core beliefs) even though they were capable of causing offence, and was discriminated against.

Fire and Rehire: Court of Appeal overturns injunction restraining termination and re-engagement of Tesco employees
Whistleblowing: Whistleblower’s dismissal not automatically unfair as decision-makers’ view of conduct when making protected disclosures separable from content or fact of disclosures
Direct Discrimination: EAT upholds tribunal decision that Christian doctor was not discriminated against for refusing to address transgender people by their chosen pronoun
Direct Discrimination: Gender critical feminist suffered direct discrimination for expressing her beliefs in a manner that was not “objectively offensive”

Fire and Rehire: Court of Appeal overturns injunction restraining termination and re-engagement of Tesco employees

In USDAW and others v Tesco Stores Ltd [2022] EWHC 201, the Court of Appeal has overturned the High Court’s injunction restraining Tesco from dismissing and re-engaging a group of warehouse operatives to remove a contractual pay enhancement known as “Retained Pay“. This had been incorporated through collective bargaining with the trade union USDAW as a retention incentive during a reorganisation. The collective agreement stated that the enhanced pay would be a “permanent feature” of each affected employee’s contractual entitlement, and could only be changed through mutual consent, or on promotion to a new role.

The High Court had found that there was an implied term not to use termination and re-engagement as a means of removing Retained Pay. However, the Court of Appeal held that such an implied term was not justified. Neither could the employees rely on promissory estoppel since there had been no unequivocal promises related to termination. Furthermore, it was not “unconscionable” to remove a benefit that the employees had already received for over a decade and that far exceeded any redundancy payment to which they would have been entitled had they not accepted the Retained Pay.

In any event, even if there had been a breach, the court held that the injunction was not justified. The court was not aware of any previous cases in which a final injunction had been granted to prevent a private sector employer from dismissing an employee for an indefinite period. Moreover, the terms of the injunction had not been sufficiently clear.

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Whistleblowing: Whistleblower’s dismissal not automatically unfair as decision-makers’ view of conduct when making protected disclosures separable from content or fact of disclosures

In Kong v Gulf International Bank (UK) Ltd [2022] EWCA Civ 941, the Court of Appeal has upheld the EAT’s decision that an employment tribunal directed itself properly on the issue of the separability of the protected disclosures made by an employee and the reason in the minds of the decision-makers for her dismissal. The tribunal had properly considered and applied the guidance on the issue set out in authorities such as Martin v Devonshire Solicitors UKEAT/0086/10 and NHS Manchester v Fecitt and others [2012] IRLR 64. Despite the fact that the tribunal had found that the employee’s conduct when making the protected disclosures had been broadly reasonable and she had not, as alleged, questioned her colleague’s professional integrity, her dismissal was not automatically unfair because the decision-makers believed that she had acted unreasonably. The reason for dismissal in the minds of the decision-makers could be properly separable from the fact of the protected disclosures being made. The court rejected the submissions of Protect as intervenor that an employee’s conduct in making a disclosure should only be properly considered separable from the making of a protected disclosure where that conduct constitutes wholly unreasonable behaviour or serious misconduct.

This decision makes it clear that even where a worker’s conduct is not objectively unreasonable when they make a protected disclosure, their employer may escape liability when it treats them detrimentally or dismisses them because it subjectively believes that the manner in which they made the disclosures was unreasonable. However, the court stressed that particularly close scrutiny of an employer’s reasons for treating them detrimentally would be needed in such a case to ensure that the real reason for adverse treatment was not the protected disclosure itself.

It is understood that the employee is considering an appeal to the Supreme Court.

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Direct Discrimination: EAT upholds tribunal decision that Christian doctor was not discriminated against for refusing to address transgender people by their chosen pronoun

In Mackereth v DWP [2022] EAT 99, the EAT has held that a tribunal did not err in dismissing a Christian doctor’s claims of direct discrimination, indirect discrimination and harassment on grounds of religion or belief because of his refusal to address transgender service users by their chosen pronouns. He relied on his particular beliefs in the supremacy of Genesis 1:27 that a person cannot change their sex/gender at will, his lack of belief in what he described as “transgenderism” and his conscientious objection to “transgenderism“. However, Eady P, sitting with lay members, found that the tribunal had erred in several respects when applying the criteria from Grainger Plc v Nicholson UKEAT/0219/09 to determine whether these beliefs were capable of protection under section 4 of the Equality Act 2010. In particular, the tribunal had erred in holding that the beliefs were not worthy of respect in a democratic society. This threshold must be set at a low level so as to allow for the protection not just of beliefs acceptable to the majority, but also of minority beliefs that might cause offence (approving Forstater v CGD Europe UKEAT/0105/20).

The tribunal had been entitled to find in the alternative that the direct discrimination and harassment claims were not made out. It was permissible to draw a distinction between Dr Mackereth’s beliefs and the way he manifested them, finding that any employee not prepared to utilise a service user’s chosen pronoun would have been treated the same way.

The tribunal had also been entitled to reject the indirect discrimination claim. In holding that the PCPs were necessary and proportionate, it carefully considered the lack of practical alternatives to face-to-face contact with service users. In noting that Dr Mackereth had not identified any further alternatives, over and above those considered and discounted by his employer, this did not amount to the imposition of the burden of proof on him.

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Direct Discrimination: Gender critical feminist suffered direct discrimination for expressing her beliefs in a manner that was not “objectively offensive”

In Forstater v CGD Europe and others ET/22200909/2019, an employment tribunal has upheld a claim of direct discrimination on ground of belief, where an individual’s contract was not renewed because she had expressed gender critical beliefs which some colleagues found offensive. This follows an earlier EAT judgment in which her gender critical beliefs had been held to be protected as a philosophical belief under the Equality Act 2010. They included the belief that a person’s sex is an immutable biological fact, not a feeling or an identity, and that a trans woman is not in reality a woman. The claimant had described a prominent gender-fluid individual as a “part-time cross dresser” and a “man in heels” who should not have accepted an accolade intended for female executives. She had also left a gender critical campaign booklet in the office (which she later apologised for) and posted a campaign video on twitter containing ominous music and imagery, which argued that gender self-ID put women and girls at greater risk.

The respondents argued that it was the way in which the claimant had expressed her beliefs, and not the fact that she held them, that had been the reason for non-renewal. The tribunal held, following earlier case law, that the way in which a belief is manifested is only dissociable from the belief itself where it is done in a manner which is inappropriate or to which objection can reasonably be taken, bearing in mind an individual’s qualified right to manifest their belief under Article 9 of the European Convention on Human Rights. In this case, the claimant’s tweets and other communications were little more than an assertion of the core protected belief (which could not be objected to even though it was capable of causing offence). In some cases the claimant had been provocative or mocking but this was the “common currency of debate” and was not objectively offensive or unreasonable.

The claimant had also been victimised when her profile was taken off the respondent’s website after she talked to The Sunday Times about her discrimination case. However, her claims of indirect discrimination and harassment were dismissed.

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Employment Law Case Update – June 2022

Employment,
28th June 2022

Employment Law

A round-up of the most significant employment law cases to be published over the last month including insights on dismissal cases, using without prejudice letters and when injunctive relief may be sought to enforce a non-compete clause. We also have an interesting case on ethical veganism v legality of actions.

Equality Act: Ethical veganism encompassing an obligation to break the law to relieve animal suffering was not a protected belief
Unfair Dismissal: Statutory cap should be applied to unfair dismissal compensation after deduction of earlier payments made to employee
Constructive Dismissal: Fundamental breach possible even where employer’s actions do not suggest intention to end employment relationship
Dismissal: ACAS code applied to discriminatory sham redundancy dismissal
Injunctive Relief: Interim enforcement of non-compete clauses
Without Prejudice: Without prejudice letter inadmissible despite exaggerated allegations

Equality Act: Ethical veganism encompassing an obligation to break the law to relieve animal suffering was not a protected belief

In Free Miles v The Royal Veterinary College ET/2206733/2020, an employment tribunal has found that a belief in ethical veganism encompassing an obligation to break the law to relieve animal suffering did not amount to a philosophical belief under section 10 of the Equality Act 2010 (EqA 2010).

Ms Free Miles was a veterinary nurse employed by the Royal Veterinary College (RVC). In February 2019, she was arrested by police in connection with alleged burglaries by the Animal Liberation Front. The police found a sick turkey at her flat which she said she had rescued. Following her arrest, Ms Free Miles was summarily dismissed by RVC for reasons including that RVC believed she was connected with an animal rights group that endorsed law breaking and that she had participated in activities including trespass and theft.

Ms Free Miles brought an employment tribunal claim against RVC for, among other things, direct and indirect philosophical belief discrimination. She relied on her belief in ethical veganism, arguing that this belief included a moral obligation to take positive action to reduce animal suffering, including trespass on property and removal of animals. By the time of the tribunal hearing, Ms Free Miles had been charged by the police with criminal offences relating to animal rights activities.

The tribunal stated that, had Ms Free Miles’ belief in ethical veganism been limited to the belief that humans should not eat, wear, use for sport, experiment on or profit from animals, it would have had no reservation in concluding that it amounted to a philosophical belief under section 10 of the EqA 2010. It also said that it might have reached the same conclusion had the moral obligation to take positive action to reduce or prevent animal suffering been limited to lawful action.

However, Ms Free Miles’ belief included trespassing on private property and acting in contravention of the law. The tribunal concluded that a belief to take actions that are unlawful and to interfere with the property rights of others could not be worthy of respect in a democratic society, so did not satisfy the fifth element of the test in Grainger Plc v Nicholson [2010] 2 All ER 253. Laws were made by democratically elected representatives and had to be obeyed by all citizens. It was not open to individuals to decide which laws to obey and disobey. Ms Free Miles’ discrimination claims therefore failed.

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Unfair Dismissal: Statutory cap should be applied to unfair dismissal compensation after deduction of earlier payments made to employee

In Dafiaghor-Olomu v Community Integrated Care [2022] EAT 84, the EAT has held that any payments made by an employer to an employee in respect of an unfair dismissal claim must be deducted from the total compensation sum before the statutory cap is applied.

Mrs Dafiaghor-Olomu won an unfair dismissal claim against Community Integrated Care (CIC). She sought re-engagement and compensation. The tribunal refused re-engagement but awarded £46,153.55 in compensation which CIC paid in full. At a second remedies hearing following a successful appeal, the tribunal increased the compensatory award to £128,961.59. The EAT was required to determine whether the statutory cap should be applied after the earlier payment made by CIC was deducted from the sum of £128,961.59 (leaving an outstanding payment of £74,200, being the amount of the statutory cap in place at the relevant time) or whether the statutory cap should be applied to the total award before the earlier payment was deducted (leaving an outstanding payment of £28,046.45). CIC argued for the latter approach, stating that the former would mean it got no credit for the earlier payment and would be penalised for complying with the tribunal’s original order.

The EAT considered the wording of section 124(5) of the Employment Rights Act 1996. It felt that this showed that Parliament’s intention was for the tribunal to calculate the total compensation due to the employee and then subtract from it any earlier payments made by the employer before applying the cap. However, in reaching this conclusion, the EAT expressed considerable sympathy with CIC. In paying the original compensatory award, CIC had complied with what it perceived to be its duty. Had it foreseen the possibility that the tribunal would increase the award at the second remedies hearing, it would probably have declined to make any payment until the compensatory order was final. Instead, it ended up owing £74,200 plus £46,153.55 instead of just £74,200.

Additionally, the EAT upheld the employment tribunal’s decision not to reconsider its refusal to award re-engagement after the second remedies hearing on the basis that such an order was impracticable because of Mrs Dafiaghor-Olomu’s attitude towards which jobs were suitable for her. It also dismissed a cross appeal in which CIC argued that the employment tribunal had not been entitled to increase the compensatory award at the second remedies hearing.

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Constructive Dismissal: Fundamental breach possible even where employer’s actions do not suggest intention to end employment relationship

In Singh v Metroline West Ltd [2022] EAT 80 the EAT has held that, in a constructive dismissal claim, a fundamental breach of contract can be established even where the employer’s actions do not indicate an intention to end the employment relationship.

Mr Singh was invited to a disciplinary hearing by Metroline West Ltd. The next day, Mr Singh was signed off sick by his doctor. While absent, he was examined by occupational health who did not suggest his sickness was not genuine. However, Metroline believed that Mr Singh was trying to avoid the disciplinary hearing. It therefore paid him statutory sick pay only, instead of company sick pay. Mr Singh brought a claim for constructive dismissal, alleging, among other things, that the failure to pay him company sick pay was a fundamental breach of contract.

The employment tribunal found that Metroline had contractual power to suspend Mr Singh without pay if it thought his absence was not genuine, but this power had not been exercised. Separately, Mr Singh’s contract allowed company sick pay to be withheld where, after investigation, absence was found not to be genuine. There was no investigation in this case and no other relevant contractual grounds on which company sick pay could be withheld. There was therefore a breach of contract. However, the tribunal found the breach was not fundamental. By withholding pay, Metroline had not indicated an intention not to be bound by the employment relationship; rather, its aim in withholding pay was to encourage Mr Singh’s participation in a disciplinary process integral to that relationship.

However, the EAT upheld Mr Singh’s appeal on this issue. It was an error of law for the tribunal to adopt the approach that, for the breach of contract to be fundamental, there must have been an intention by the employer not to be bound by the contract in a manner that meant that it no longer wished to continue with the employment relationship. What is required is that the employer demonstrates an intention to no longer comply with the terms of the contract that is so serious that it goes to the root of the contract. In this case, there was a deliberate decision to withhold pay to which Mr Singh was entitled, resulting in a significant reduction in earnings, in circumstances where there were other contractual provisions which would have allowed Metroline to deal with suspicions about his absence. This was a fundamental breach.

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Dismissal: ACAS code applied to discriminatory sham redundancy dismissal

In Rentplus UK Ltd v Coulson [2022] EAT 81 the EAT has held that the ACAS Code of Practice on Disciplinary and Grievance Procedures (ACAS Code) applied to a discriminatory dismissal purportedly by reason of redundancy. The tribunal had not erred in awarding the maximum 25% uplift available for failure to follow the ACAS Code.

The employer’s ground of appeal that the ACAS Code could not apply where their reason for dismissal was redundancy and the reason found by the tribunal was sex discrimination failed. This was because the tribunal had rejected redundancy as the reason for the dismissal and the upholding of the sex discrimination claim did not mean that it was the only reason for the dismissal. The EAT considered it was implicit in the tribunal’s reasoning that the claimant was in a “disciplinary situation” to which the ACAS Code applied, this being that she was dismissed due to dissatisfaction with her personally and/or her performance, which was tainted by sex discrimination, and a fair capability or disciplinary procedure should therefore have applied.

It was clear that the tribunal had concluded the dismissal process was a sham and there had been a total failure to comply with the ACAS Code. The breach was referred to as “egregious” and so was beyond unreasonable. While, generally, a tribunal should identify the employer’s failings for which an uplift is being made by reference to the relevant part of the ACAS Code which the employer is said to be in breach of, in this case the tribunal had concluded that the employer had acted in bad faith such that there was a total failure to apply any of the protections provided for by the ACAS Code. In these circumstances, there was no error of law in the award of an uplift of 25%.

The EAT provided guidance in the form of questions that tribunals considering an ACAS uplift should apply:

Is the claim one which raises a matter to which the ACAS Code applies?
Has there been a failure to comply with the ACAS Code in relation to that matter?
Was the failure to comply with the ACAS Code unreasonable?
Is it just and equitable to award an uplift because of the failure to comply with the ACAS Code and, if so, by what percentage, up to 25%?

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Injunctive Relief: Interim enforcement of non-compete clauses

In Planon Ltd v Gilligan [2022] EWCA Civ 642 the Court of Appeal has dismissed an appeal from the High Court’s refusal to grant an interim injunction to enforce a non-compete clause.

The High Court had held that the delay between the initial exchanges of correspondence between the parties and the application being heard was not the sort of delay that would disqualify the employer from interim injunctive relief. However, the employer’s prospects of success at trial in enforcing the non-compete clause were not that good, the critical point being the non-compete clause was likely to prevent the employee from being able to work in his field for 12 months. Damages would not, or might not, be an adequate remedy for either the employer or employee in this case.

While the Court of Appeal dismissed the employer’s appeal, its reasoning differed from that of the High Court. It held that the High Court had not taken the correct approach when considering whether the non-compete clause was reasonable. However, in view of the delay by the time the matter came before it, the court did not consider it appropriate to express a preliminary view about the enforceability of the clause.

The court considered the effect of delay in the case. There was a divergence of opinion between Elisabeth Laing LJ and Bean LJ, with Nugee LJ expressing no view, on the effect of the delay between the facts becoming known to the employer and the High Court hearing. Elisabeth Laing LJ considered that the judge had reached a decision open to him on the facts while Bean LJ considered that the judge would have been entitled to refuse an injunction on the ground of delay. The court noted that there was no rule of law to the effect that damages would be an adequate remedy for the employee (if it was found that at trial that a restrictive covenant is unenforceable). Bean LJ suggested that, except in cases of very wealthy defendants, or where a claimant employer is offering paid garden leave for the whole period of the restraint, it was unrealistic to argue that damages would be an adequate remedy.

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Without Prejudice: Without prejudice letter inadmissible despite exaggerated allegations

In Swiss Re Corporate Solutions Ltd v Sommer [2022] EAT 78 the EAT has held that an employment judge erred when holding that a without prejudice letter could be admitted into evidence under the “unambiguous impropriety” exception to the without prejudice rule in proceedings brought by an employee against her former employer. The without prejudice rule prevents statements made (whether in writing or orally) in a genuine attempt to settle an existing dispute from being put before the court as evidence of admissions against the interest of the party that made them.

The letter referred to the employee’s actions in having copied three emails to her personal email address when sending them to her employer in pursuit of a grievance. The emails had contained personal data and matters confidential to the employer and its clients. Before offering to settle her complaints by way of termination of her employment and payment of compensation, the letter alleged that the employee’s actions breached the confidentiality obligations in her employment contract, were a criminal offence under the Data Protection Act 2018 and meant that she had acted, or might have acted, without integrity in breach of Financial Conduct Authority (FCA) rules. This could result in summary dismissal, criminal convictions, fines and FCA findings which could make it difficult for her to work again in the regulated sector.

In holding that the unambiguous impropriety exception applied, the employment judge found that there had been no basis at all for the employer’s assertion that the employee’s actions amounted to serious misconduct and that the severity of what she had done had been grossly exaggerated in order to put pressure on her to accept the termination of her employment.

The EAT held that the employment judge had erred in finding there was no basis at all for the allegations of serious misconduct. It considered that the high threshold for unambiguous impropriety could be met in circumstances in which a party made exaggerated allegations although it was unaware of any decided case on this point. However, exaggeration would not usually pass the threshold without findings as to the guilty party’s state of mind. The employment judge did not make such findings, and the EAT doubted that this could have validly been done at a preliminary hearing without oral evidence. The only possible outcome in this case was that the without prejudice letter was inadmissible in evidence.

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Unfair Dismissal: Tribunal fails to consider fairness of final warning

Unfair Dismissal: Claimant can’t rely on protected disclosures if not made in public interest

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Managing stress at work:

Making reasonable adjustments for mental health at work:

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Fire and Rehire: Court of Appeal overturns injunction restraining termination and re-engagement of Tesco employees

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Equality Act: Ethical veganism encompassing an obligation to break the law to relieve animal suffering was not a protected belief

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Dismissal: ACAS code applied to discriminatory sham redundancy dismissal

Injunctive Relief: Interim enforcement of non-compete clauses

Without Prejudice: Without prejudice letter inadmissible despite exaggerated allegations

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