A round-up of the most significant employment law cases to be published during October, which includes a look at how to carry out redundancy consultations, share transfer plans which need to transfer under TUPE, a consideration of how to carry out disciplinary action cases to avoid the appearance of bias, and an update on the latest drivers to pursue workers benefits claims.
- Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one
- TUPE: Can the benefit of share incentive plans transfer under TUPE?
- Trade Unions: Appearance of bias in disciplinary action
- Workers: Bolt drivers pursue worker benefits claim
Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one
In Mogane v Bradford Teaching Hospitals NHS Foundation Trust  EAT 139, the EAT has held that a tribunal erred in finding the redundancy dismissal of a nurse fair, where the sole selection criterion used was that her fixed-term contract ended before that of her colleague, putting her in a selection pool of one, where no consultation had taken place prior to that decision. Ms Mogane and another nurse in a similar role were employed on a series of fixed-term contracts. Ms Mogane was invited to a meeting at which she was told about the financial difficulties the Trust was facing. Shortly after this, a decision was taken that Ms Mogane should be dismissed for redundancy as her fixed-term contract expired first. A redundancy consultation process began, which included consultation regarding the possibility of alternative employment, although this was not possible and she was dismissed.
The EAT noted that, as established in Williams v Compair Maxam  ICR 156 and Polkey v AE Dayton Services Ltd  IRLR 503, consultation is a fundamental aspect of a fair redundancy procedure. This applies equally to individual as well as collective redundancy situations. In order that consultation is genuine and meaningful, consultation must take place at a formative stage when an employee can still potentially influence the outcome. Where the choice of selection criteria has the practical result that the selection for redundancy is made by that decision itself, consultation should take place before that decision is made. A failure to do so is not within the band of reasonable responses for the purposes of section 98(4) of the Employment Rights Act 1996. The implied term of trust and confidence requires that employers do not act arbitrarily towards employees in the methods of selection for redundancy. While a pool of one can be fair in appropriate circumstances, it should not be considered where there is more than one employee without prior consultation.
Here, the Trust’s decision to dismiss Ms Mogane as her contract was the first up for renewal immediately identified her as the person to be dismissed, before any meetings or consultation took place with her. The tribunal failed to explain why it was reasonable to make that decision without consultation. The selection of Ms Mogane was arbitrary, related solely to the date on which her fixed-term contract ended. Given that she was effectively chosen for dismissal before any consultation took place, the EAT substituted a finding that she was unfairly dismissed.
TUPE: Can the benefit of share incentive plans transfer under TUPE?
In Ponticelli UK Ltd v Gallagher  EAT 140 the EAT had to consider whether the benefit of a share incentive plan could transfer under TUPE, if it was not in the employee’s contract. Mr Gallagher’s contract of employment transferred to Ponticelli under TUPE, 2006 on 1 May 2020. Prior to the transfer, he had been a member of a Share Incentive Plan operated by the transferor (Total Exploration and Production UK Limited) which he had joined in August 2018 pursuant to an agreement amongst Mr Gallagher, the transferor and the plan trustees (a voluntary scheme, not under his contract). Mr Gallagher having refused to provide an equivalent scheme, Mr Gallagher brought proceedings before the Employment Tribunal in terms of sections 11 and 12 of the Employment Rights Act 1996 (ERA). The Tribunal upheld his claims and found that he was entitled, after the transfer, to participate in a scheme of substantial equivalence to that operated by the transferor. Mr Gallagher contended that the obligations created when the respondent joined the transferor’s scheme did not arise either “under” the contract of employment or “in connection with” that contract. Accordingly, Regulation 4(2)(a) of TUPE did not apply. Mr Gallagher conceded that the obligations in question did not arise “under” the contract, but contended that they arose “in connection with” that contract. It was also argued that the Tribunal’s order was not competent. The tribunal found in favour of Mr Gallagher and Ponticelli appealed.
At appeal, the ETA held that even if the obligations created by the August 2018 Partnership Share Agreement did not arise “under” the contract of employment, they plainly arose “in connection with” that contract for the purposes of Regulation 4(2)(a) of TUPE, and the right to a plan of substantial equivalence transferred under TUPE. The order pronounced by the Tribunal was competent but should have referred to the statutory statement of particulars of employment rather than to “terms and conditions of employment” to which Mr Gallagher was entitled, which should have set out that right as ‘any other benefit’ (s.1(4)(da) ERA). Subject to that minor adjustment to paragraph 2 of the Tribunal’s Judgment, the appeal was refused.
Trade Unions: Appearance of bias in disciplinary action
In Simpson v Unite the Union  EAT 154 the EAT had to consider whether the Certification Officer had erred by failing to consider correctly and apply the relevant law to the question of whether the disciplinary process of a Trade Union gave rise to an appearance of bias by way of pre-determination. Mr Simpson was a trade union member who had been expelled. He had raised some concerns about other members but following an investigation it was found that there was no evidence to substantiate these claims, but there was evidence that Mr Simpson had made the claims vexatiously, resulting in his disciplinary action and subsequent expulsion. He applied to the Certification Officer for a declaration under s.108A Trade Union and Labour Relations (Consolidation) Act 1992 on the basis that the process adopted was in breach of natural justice, as it gave rise to an appearance of bias by way of pre-determination, seeking a declaration that he had been disciplined in breach of the Union’s rules.
The Certification Officer refused his application resulting in a further appeal, this time to the EAT. It held that the Certification Officer had erred by failing to consider and apply the relevant law when determining if the disciplinary process gave rise to an appearance of bias where the chairman of the disciplinary panel had also acted as the chairman of the committee which had commissioned and accepted a report into Mr Simpson’s own complaints of harassment, and then rejected the complaints and commissioned a further investigation into whether they were malicious or vexatious whilst suspending Mr Simpson.
The same person (the chairman) had also acted as the chairman of the committee which had accepted the recommendation that there be a disciplinary hearing and which had appointed him as chairman of the disciplinary panel. In addition, when Mr Simpson had written to him and requested that he not be on the disciplinary panel, he had not replied to the letter or shared it with the other members of the panel. The EAT therefore found in favour of the appellant that the Certification Officer had erred by failing to correctly consider whether the disciplinary process of the trade union had given rise to an appearance of bias.
Workers: Bolt drivers pursue worker benefits claim
According to the Guardian (6 October 2022) more than 1,600 UK drivers for Bolt, a ride-hailing app, claim they have been wrongly classified as self-employed contractors. The drivers are seeking compensation for missed holiday and minimum wage payments to which they would be entitled if deemed to be workers. Lawyers for the claimants have contacted ACAS in the first stage of lodging the claim. A driver from Bolt previously brought a test case to an employment tribunal after he was expelled from the platform.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com
A round-up of the most significant employment law cases to be published over the last month largely centred around dismissal. We have a harassment case that looks at how employers should provide for breastfeeding mothers returning to work, and some interesting cases of dismissals showing that common sense ultimately steers the tribunals.
- Harassment: Tribunal finds school harassed teacher who was forced to express breast milk in ‘dirty’ toilets
- Unfair Dismissal & Disability Discrimination: Failing to make a reasonable adjustment for a disabled employee does not render dismissal unfair
- Unfair Dismissal: It was not automatically unfair to dismiss an employee who refused to go to work because of concerns over COVID-19 risk to his vulnerable children
- Indirect Sex Discrimination & Constructive Unfair Dismissal: Shop assistant was unfairly dismissed after being made to work Saturdays despite childcare issues
Harassment: Tribunal finds school harassed teacher who was forced to express breast milk in ‘dirty’ toilets
In the case of Mellor v The MFG Academies Trust  ET/1802133/2021, the tribunal had to consider the effect of how a teacher had been treated in respect of expressing breastmilk while at school. Ms Mellor had been a teacher of Citizenship at Mirfield Free Grammar School. In July 2020, she returned to work from maternity leave and before returning to work, made a flexible working request and informed her employer she required a room in which to she would be able to express milk or possibly feed her baby during lunchtimes while at school. Having been told that due to COVID-19 restrictions, her partner was not allowed onto school premises to bring the baby to her to breastfeed, Ms Mellor again requested somewhere to express. Having had nowhere suitable she raised the matter with her line manager, as her breasts were becoming uncomfortable from being prevented from expressing the milk and she was afraid of developing mastitis again. Through a series of requests which were not followed up properly, Ms Mellor ended up expressing regularly at lunchtimes either in her car where she might be seen by students, or whilst sitting on the floor in the dirty toilets, and trying to eat her lunch at the same time.
Judge Miller found that Ms Mellor “genuinely and reasonably had no choice but to use the toilets or her car to express” and had made the school aware on numerous occasions but not only was no suitable room provided. “The alternative was that the claimant would experience an embarrassing leakage in the afternoon,” Judge Miller explained. “It is obvious that this is unacceptable.” Ms Mellor was also keen to avoid developing mastitis again and was under the impression this would be avoided by expressing during the day.
Judge Miller therefore found in favour of Ms Mellor, expressing the sentiment that the conduct did have the effect of creating a degrading or humiliating environment for the claimant on the basis that “a woman who has recently given birth should not be subjected to these circumstances solely because she has done so.” The judge also concluded that “As the claimant reasonably and genuinely felt compelled to act in a way that she did not want to, she was we find forced to do so”, therefore interpreting the meaning of ‘forcing’ to include leaving someone with no realistic choice but to take a particular course of action and must be read in conjunction with ‘unwanted’ – such as expressing milk in the toilets while eating lunch and /or in the claimant’s car with the risk of being seen by pupils and others.
The claim of harassment succeeded, but the claim of direct discrimination was dismissed as the failure to provide a suitable room was more due to administrative incompetence rather than on the basis of her sex, and in any event, the same detriment could not be relied upon to make out both claims. The claim of indirect discrimination failed because the provision, criterion or practice (PCP) must place women at a particular disadvantage compared to men. Given that expressing breastmilk is a sex specific practice in which biological men can have no interest this PCP cannot be meaningfully applied to both men and women and therefore there is no comparative disadvantage that can arise.
Unfair Dismissal & Disability Discrimination: Failing to make a reasonable adjustment for a disabled employee does not render dismissal unfair
In Knightley v Chelsea & Westminster Hospital NHS Foundation Trust  EAT 63 the EAT considered the question of if an employer dismisses a disabled employee, but fails to make a reasonable adjustment during that process, must that render the dismissal unfair?
At first instance, the Employment Tribunal found that the employer had failed to make a reasonable adjustment to its procedure when dismissing the employee on grounds of capability in that it had not allowed her an extension of time to lodge an appeal against her dismissal. It therefore upheld her claim under section 20 of the Equality Act 2010 (duty to make reasonable adjustments). However, it found that her dismissal was fair and proportionate, and therefore dismissed her claims for unfair dismissal and discrimination arising out of disability, contrary to section 15 of the Equality Act 2010.
The employee’s appeal was on the basis that the Tribunal’s finding, for the purposes of the duty to make reasonable adjustments, that the employee was unreasonably denied an opportunity to appeal against her dismissal ought to have led to her other claims succeeding and/or that the Tribunal had not sufficiently explained how her dismissal could be fair or proportionate given this finding and/or that the Tribunal had wrongly relied on its finding that the employee’s appeal would not have been successful in any event and had thereby committed the Polkey heresy. The ‘Polkey Deduction’ is a very well established principle that, if a dismissal is unfair on procedural grounds, the fact that the employee would have been dismissed in any event, even if a fairer procedure was followed, only impacts the remedy rather than the question of liability.
The EAT dismissed the appeal, noting that it was obvious that the legal tests involved in the three claims before the tribunal were different, and just because an employer might fail on one of the claims does not mean that the others will also fail. What matters to the tribunal is drawing conclusions under each test from the facts which the tribunal has found. The legal principles applicable to each claim should be separately applied to the findings of fact because the elements of each part of the Act are different. Here, the conclusion on the reasonable adjustment claim did not depend on or reflect, the merits of the case for dismissal or the dismissal itself or whether the appeal would have made any difference to the outcome.
Unfair Dismissal: It was not automatically unfair to dismiss an employee who refused to go to work because of concerns over COVID-19 risk to his vulnerable children
In Rodgers v Leeds Laser Cutting Ltd  EAT 69 the EAT considered the case of Mr Rodgers who had refused to go into work during the first national lockdown, despite his work remaining open, because he was concerned that if his children caught COVID-19 they would become very ill. As a result of this refusal, Mr Rodgers was dismissed. He claimed unfair dismissal on the basis that he had exercised his right not to return to work in order to protect himself from circumstances of danger, which he had reasonably believed to be a serious and imminent threat, and which he could not have been expected to avoid (section 100(1)(d) or (e) Employment Rights Act 1999).
However, the EAT found that the employment judge had accepted that the Coronavirus pandemic could, in principle, give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent, but this case failed on the facts. The circumstances of the workplace (it was large and few people worked in it, he could generally maintain social distance at work, masks were available, the tribunal rejected the claimant’s contention that he was forced to go out on deliveries) combined with Mr Rodgers’ actions (he had remained at work from the date of the announcement of the lockdown on 24 March 2020 until he left at his normal time on 27 March 2020, he had not asked for a mask, he did not say that he would not be returning when he left on 27 March 2020, he drove his friend to hospital while he was meant to be self-isolating, he worked in a pub during the lockdown) did not support his argument that there were circumstances of danger which he believed were serious and imminent. Even if the tribunal had been wrong about this, it had been entitled to find that Mr Rodgers could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands. The appeal was dismissed.
Indirect Sex Discrimination & Constructive Unfair Dismissal: Shop assistant was unfairly dismissed after being made to work Saturdays despite childcare issues
The case of Keating v WH Smith Retail Holdings Ltd ET/2300631/2019 has recently been published, which relates to a single mother working at the large retail chain. Following a drop in sales and the reduction of Saturday staff, the manager instated a rota for Saturday working – where sales assistants would have to work 1 in every 4 Saturdays. Although Ms Keating’s contract stated she would work 20 hours a week, flexible to the needs of the business, and could be required to work up to eight hours extra per week where trading patterns required it, and further, she may be required to work Saturdays. Sundays or bank holidays. Ms Keating did not normally work weekends and explained she was unable to work Saturdays as she had no childcare for her eight year old daughter. The manager, Mr Cruikshank, told her she should arrange to swap with one of her colleagues. He also admitted to saying to Ms Keating that if he permitted her not to work the Saturday rota, everyone else would want the same. Otherwise he had not dealt with the issue nor discussed it further with her. On the first Saturday Ms Keating was rostered to work, she had to bring her daughter to work with her. She was then off sick for four weeks and resigned, giving four weeks’ notice.
Ms Keating claimed indirect sex discrimination and constructive unfair dismissal. Ms Keating was put at a disadvantage: as a woman, with a dependent child, as a single mother and who could not afford childcare and had no family or other network she could call upon. The Judge found that while there was a legitimate business aim to introduce the Saturday rota, there was ‘no consideration’ by Mr Cruikshank of any less discriminatory ways to carry out his legitimate aim (i.e. to meet weekend staffing needs). Ms Keating was found to have resigned in response to this breach of the implied term of trust and confidence, and no potentially fair reason was advanced by the employer. The Judge held both claims to be well founded and both claims succeeded.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
A round-up of the most significant employment law cases to be published over the last month including how to establish worker status, the use of PILON clauses, privacy regarding email at work and what test to use to determine detriment in victimisation cases.
A round-up of the most significant employment law cases to be published over the last month as well as a general update on some of the last month’s news highlights.
A review of June’s employment law cases and other important news. This includes Covid-related dismissal cases, and news relating to parental leave, gender inequality, flexible working, and support for ethnic minority workers.