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Employment Law Case Update – September 2023

Employment Law

This month we bring you a plethora of interesting cases centring around dismissal in all its forms – be they agreed, part of a restructure or initiated for a reason. The questions will always be: is that reason fair and/or have you followed the correct procedure? Have a look at our case run down here.

  • TUPE: Employment decision on when a TUPE transfer takes place
  • Redundancy: Employees in restructure did not unreasonably refuse suitable employment
  • Unfair Dismissal: Conclusion on the fairness of a dismissal must be based on the established reason for that dismissal
  • Sex Discrimination: Tribunal’s misstatement of grievance outcome materially impacted on its consideration of the claim

TUPE: Employment decision on when a TUPE transfer takes place

In Rajput v Commerzbank and Société Générale [2023] EAT 116 the EAT held that (i) in a ‘series of transactions’ cases, the transfer does not necessarily take place at the end of the series, and (ii) when determining the date of the transfer, a tribunal can have regard to matters which occur outside the UK. Regulation 3(1)(a), which provides that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246 apply to undertakings which are ‘situated immediately before the transfer in the UK’, does not mean that a tribunal must focus solely on events which take place within the UK-businesses which are situated in the UK.

Sarah Clarke, barrister at 3PB, who represented the claimant in this appeal, writes in a case analysis for Lexis Nexis that, on the face of it, the EAT’s finding that a transfer can take place at any point within the ‘series of transactions’ could cause uncertainty and increase the amount of litigation in this area. However, she goes on to say that she considers that, in the vast majority of cases, a transfer will take place at the end of the series. The question to be determined is when responsibility for the carrying on of the business transfers to the transferee and it is difficult to envisage many situations in which responsibility would transfer over prior to the end of the transactions. Indeed, as a matter of logic, if a transfer is ‘effected’ by a series of transactions, it cannot be until the last of those transactions that the transfer is complete, as otherwise the later transactions could not have ‘effected’ the transfer. However, this argument was rejected by the EAT and, in her view, there is scope for further judicial consideration of this.

In relation to the location of the business, this case makes it clear that, when determining when a transfer takes place, a tribunal’s focus ought not to be solely on those matters which occur in the UK. The relevance of geography to TUPE is simply that the business must be situated in the UK immediately before the transfer takes place. However, this does not preclude the business operating from other locations outside the UK. Thus, when dealing with this issue, parties must ensure that they provide evidence to the tribunal which clearly explains all matters relevant to the transfer, regardless as to where in the world those events took place.

The claimant was employed by Commerzbank (CB) from 2012 as a senior compliance officer. She was dismissed in March 2020 and brought various claims, including automatic unfair dismissal (on the basis that the sole or principal reason for her dismissal was the TUPE transfer) and victimisation (following a previous successful discrimination claim she had brought against CB). She had worked within the Equity Markets and Commodities Division (EMC) of the business, which was sold to Société Générale (SG), following a business purchase agreement which was signed in November 2018.

The EMC business was divided into three divisions, namely Flow Trading, Asset Management (AM) and Exotics, Vanilla and Funds (EVF), and was spread across several countries, including the UK, Luxembourg and Germany. The claimant worked across all three divisions.

For the purpose of the business sale, each division was (i) allocated its own purchase price, and (ii) divided into sub-batches, which transferred over a period of time. The EVF division transferred over in six batches from March to October 2019, with AM transferring over from May to November 2019. The last part of the EMC business to transfer over was Flow. It was based mainly in Germany, with only a small presence in London consisting of five employees. Most of Flow had transferred over by March 2020, with the remainder transferring in May 2020.

The employment tribunal found that the transfer took place on 1 October 2019 on the basis that 95% of the UK operation had transferred over by then. The judge thus ignored the last division which transferred over, as this was based predominantly in Germany.

The EAT, Mr Justice Kerr sitting alone, concluded that:

‘…there is no presumption or rule that a transfer effected by a series of transactions occurs at the end of the series. Completion may be artificially delayed. The last transaction in the series may be a minor detail, putting the last piece of the jigsaw in place long after the transferee has started running the business to the exclusion of the transferor.’

However, he agreed that the judge had erred in excluding from his consideration the Flow part of the business. The question to be determined was when responsibility for the carrying on of the business was transferred to the transferee (CELTEC v Astley). It was an agreed fact that Flow formed ‘part of the organised grouping of resources’ which comprised the EMC business. There was no reason why an ‘organised grouping of resources’ (in the words of TUPE 2006, SI 2006/246, reg 3(2)) could not be located across several countries at once. A business or part of a business can be ‘situated’ in the UK without its entire operation being located in the UK. He concluded that ‘there is nothing in the TUPE Regulations that required the tribunal to confine its consideration to the part of the organised grouping of resources based in this country.’

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Redundancy: Employees in restructure did not unreasonably refuse suitable employment 

In Mid and South Essex NHS Foundation Trust v Stevenson [2023] EAT 115 the EAT had to consider whether the respondent had been entitled to refuse to make redundancy payments to the claimants where the employment tribunal had held that the alternative roles offered to them were ‘suitable’ but that their rejection of them was not unreasonable due to their personal perceptions of those roles.

The EAT held that there was no error in the employment tribunal’s approach:

— the relevant statutory test is whether the claimants ‘unreasonably’ refused an offer of employment that was suitable to them (the suitability of the role is not in and of itself determinative)

— even though the claimants’ perception of the roles was objectively groundless, the employment judge had found that there was a sufficient basis for their personal perceptions of the roles (eg that they would be a loss of autonomy and status) for them not to have acted unreasonably in refusing them

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Unfair Dismissal: Direct Line beats claims advisers case over agreed exit

Insurer Direct Line has successfully defended a case by a claims adviser that it unfairly dismissed him, with the EAT ruling that the employment tribunal had been entitled to find that there was no dismissal because the employee had mutually agreed to terminate his employment after his mental health problems meant he could not work.

In Riley v Direct Line Insurance Group plc [2023] EAT 118, the EAT ruled that an employment tribunal was entitled to find that Matthew Riley had consented to leaving his job. This is because he knew that he would receive lifetime insurance payments after being left unable to work due to mental health problems stemming from autistic spectrum disorder.

His Honour Judge (HHJ) Murray Shanks said the employment tribunal did not err when it rejected Riley’s case that he was duped into terminating his employment. ‘There was ample evidence for the conclusion reached, and the tribunal considered in detail whether Mr Riley’s consent was freely given’, he said. HHJ Shanks added that the tribunal ‘went to considerable lengths to emphasise their conclusions that Mr Riley was not tricked or coerced in any way and that he participated in the discussions, was given time and fully understood what he was doing’.

Riley was absent from work from 2014 until October 2017 due to anxiety and depression, according to the judgment. He began to make a phased return—but was again left unable to work from May 2018 because of anxiety and paranoia, the judgment says. He met with managers in August 2018 and September 2018, when he discussed leaving the job and relying on an insurance policy with UNUM that would make payments equating to 80% of his salary until he reached retirement age, according to the judgment.

Direct Line notified Riley in September 2018 that he was being dismissed following a meeting at which UNUM confirmed that he would be entitled to the benefits of the policy, the judgment says. Riley launched a case at the employment tribunal later that year, lodging claims of unfair dismissal and disability discrimination over allegations that he had been tricked by managers, according to the judgment.

But the tribunal dismissed his case in 2019, rejecting Riley’s evidence that he was put under pressure and did not understand what he was being told by managers. It also found that Riley had told managers that he knew terminating his employment to rely on the insurance policy was ‘where it’s been heading for the last four years’, according to the appeal judgment. The tribunal also concluded that Riley’s discussions with managers about his leaving had been supportive and designed to help him make the right decision.

John Platts-Mills, of Devereux Chambers, Riley’s counsel, argued before the EAT that the tribunal had failed to address the questions of who really terminated their client’s employment and whether the claims adviser really gave ‘true, mutual consent’, according to the appeal judgment.

But HHJ Shanks rejected the argument, ruling that the tribunal had ‘considered evidence relating to this in detail’. ‘It is true that they did not expressly refer to his disability in this context, but they must have had it well in mind when they rejected his evidence that he did not understand what was being said at meetings and found that he had made a fully informed decision’, he said.

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Unfair Dismissal: Conclusion on the fairness of a dismissal must be based on the established reason for that dismissal

In Greater Glasgow Health Board v Mullen [2023] EAT 122, the EAT dismissed the employer’s appeal against the decision of the employment tribunal which found that the employer’s reason for dismissing their employee was a belief by it in the existence of misconduct consisting of aggressive and threatening behaviour by him to one of his line reports. The tribunal further concluded that the employer’s belief in the existence of that misconduct was genuinely held and reached after reasonable investigation. The issue was whether the tribunal had erred in their decision.

The EAT held, among other things, that: (i) in the circumstances it was not open to the employment tribunal to base its conclusion about the fairness of the dismissal in terms of section 98(4) of the Employment Rights Act 1996 on a factual hypothesis that the ‘real reason’ for the dismissal was something different to the established reason; and (ii) on the findings in fact made by the employment tribunal, the only conclusion to which they could properly have come was that dismissal was within the range of reasonable responses open to the employer and was fair. Consequently, the employment tribunal’s judgment was set aside, and the claim of unfair dismissal was dismissed.

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Vicarious Liability: School not liable for acts of work experience student

In MXX v A Secondary School [2022] EWHC 2207 (QB) the Court of Appeal upheld the High Court’s decision that the defendant, a co-educational secondary school providing education for children aged 11 to 16, was not vicariously liable for the sexual assaults carried out by PXM on the claimant (a pupil), subsequent to PXM undertaking a work experience placement at the school. The court held that the judge had been wrong to have found that the relationship between the defendant and PXM was not akin to employment but that:

— given the limited nature of PXM’s role during the course of one week (eg he had no pastoral responsibility), the facts did not begin to satisfy the requirements of the close connection test

— the grooming which led to the sexual offending was not inextricably woven with the carrying out by PXM of his work during his week at the defendant’s school such that it would be fair and just to hold the defendant vicariously liable for the acts of PXM.

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Disability Discrimination: Tribunal rules insurer discriminated against menopausal worker

A British insurance company has been ordered to pay one of its former workers £64,645 after the tribunal found it failed to make reasonable adjustments for an employee with menopausal symptoms, who later resigned.

In Lynskey v Direct Line Insurance Services Ltd ET/1802204/2022 and ET/1802386/2022, Employment Judge Wade found that Direct Line Insurance Services Ltd did not fully consider the impact of menopause on Maxine Lynskey when it launched a warning and disciplinary process based on her performance. ‘At that time the disadvantage the claimant faced in doing her job while struggling with menopausal symptoms ought to have been recognised as such and adjustments made’, Judge Wade wrote.

The insurer must pay the sum to Lynskey to account for a range of factors, including damages for injury to feelings as well as losses she suffered, according to a remedy judgment. These events are a ‘serious and sustained number of contraventions over a period involving both the claimant’s line manager and her line managers and HR’, the tribunal found.

Lynskey was a motor sales consultant for Direct Line from April 2016. She had ‘very good’ performance ratings in that role. She then informed her manager at a meeting she was having health issues related to menopause.

‘It was clear from the information the claimant provided that she was being profoundly affected by menopausal symptoms and was seeking treatment for them; that was apparent from March 2020’, Judge Wade wrote.

Lynskey then moved to a different team considered to be a ‘better fit’ in light of her personal and health circumstances, albeit one that did not involve a sales related bonus. However, the tribunal found that with this new role, Lynskey’s managers should have been aware of health issues that would affect her performance. ‘The respondent knew, or ought reasonably to have known, from March 2020, that the claimant had become a disabled person by reason of menopausal symptoms’, Judge Wade wrote. ‘She was self-evidently at a disadvantage in comparison with colleagues without her disability in meeting the respondent’s performance standards and targets, and generally more likely to be sanctioned or face disciplinary/performance warnings.’

Lynskey began underperforming, and was told she wouldn’t receive a pay rise because her performance was rated ‘need for improvement’, the judge wrote. The tribunal ruled that it was unfavourable treatment to score her performance without fully factoring in her disability. ‘Need for improvement is inherently unfavourable if the person, through disability, cannot, in fact, improve, or meet the required standards’, it said. She later faced a warning meeting where her manager ‘failed to recognise or take in the explanations’ around her symptoms. Lynskey then faced a disciplinary meeting where her health condition was not fully considered. Judge Wade found that the subsequent disciplinary warning ‘was unfavourable treatment because of something arising in consequence of disability’.

‘It is clear a less discriminatory approach could have been taken, including occupational health referral, consideration of other roles, and accepting the claimant’s mitigation, namely her disability’, the judge wrote.

After a period of ill health and personal issues outside work, Lynskey’s sick pay was stopped, the ruling said. She then submitted a grievance to her employer before ultimately resigning in May 2022, then brought constructive unfair dismissal and Equality Act 2010 complaints against the insurance company.

The tribunal upheld Lynskey’s arguments that Direct Line failed to make reasonable adjustments for her, as well as her complaints about discrimination because of her menopause symptoms. It rejected her complaints relating to constructive unfair dismissal, sex and age.

The tribunal handed down an extempore judgment (given verbally at the end of the case, not written down) on 28 April 2023, and Direct Line requested the written reasons, which were published on 25 August 2023.

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Sex Discrimination: Tribunal’s misstatement of grievance outcome materially impacted on its consideration of the claim

In Iourin v The Chancellor, Masters and Scholars of the University of Oxford [2023] EAT 108 the EAT considered a number of appeals against an employment tribunal’s decision dismissing the claimant’s claims for direct sex discrimination, victimisation, and disability discrimination against the respondent under the Equality Act 2010.

The claimant had attempted to hug and kiss a colleague when they were in a car together. She raised a grievance and the grievance committee held that this conduct was unwanted but that, in the context of their relationship, it did not amount to harassment or sexual harassment. The claimant was however required to undergo training related to harassment, which he claimed was sex discrimination.

In finding that this did not amount to sex discrimination, the employment tribunal had made a material error of law by relying on its mistaken account of the grievance committee’s finding—stating that it was harassment but not sexual harassment—in reaching its conclusion that this was the non-discriminatory reason for the training requirement. That claim was therefore remitted to the employment tribunal for rehearing.

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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.


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Employment Law Case Update – December 2022

Employment Law

This month the focus is on the details. The EAT considered the circumstances of a disabled employee’s redundancy selection interview, an employee’s claim for damages for asbestosis was increased as a result of the employer not accepting his Part 36 offer, and we delve into the Pensions Ombudsman’s error of law in not considering whether a man who took early ill-health retirement might have otherwise been able to redeploy as a reasonable adjustment and therefore could have suffered financial loss by retiring early.

  • Disability Discrimination: Whether requiring a disabled employee to attend a redundancy selection interview could put him at a substantial disadvantage
  • Personal Injury: The importance of considering Part 36 offers when considering damages claims
  • Pensions: The Pension Ombudsman should have considered redeployment as a reasonable adjustment
  • Tribunals: Appeal to EAT must attach the signed judgment, not copy and pasted text

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Disability Discrimination: Whether requiring a disabled employee to attend a redundancy selection interview could put him at a substantial disadvantage

In Hilaire v Luton Borough Council [2022] EAT 166, the EAT ruled on the employee’s appeal against the employment tribunal’s decision, rejecting his claims which alleged that his selection for redundancy, without the employer having given adequate consideration to his disability, had amounted to a failure to make reasonable adjustments. The employee, who suffered from depression and arthritis, had been required to attend an interview in a redundancy situation and he had informed the employer that he had been too ill to attend. The employer relied on the fact that the employee had been granted two extensions to the deadline for submission of an application for a role in the new structure, and that he had had been offered an alternative date for his interview. The tribunal concluded that the employer had applied a ‘provision, criterion or practice’ (PCP) of requiring the employee to attend an interview, and that he had not been placed at a substantial disadvantage by that PCP.

The EAT held that the tribunal had erred in its approach to the first aspect of ‘disadvantage’ by engaging in a binary decision concerning whether the employee could have taken part in the interview or not. The relevant matters in considering disadvantage under s.20 of the Equality Act 2010 (the Act) were the effects of the disability which made it more difficult for the disabled employee to meet an expectation of the employer (the PCP). The EAT held that, where the tribunal had found that the employee had had problems with memory and concentration and with social interaction, such problems would, at the least, have hindered effective participation in the interview. Accordingly, the tribunal should then have considered whether the limitation on the ability to participate had been more than minor or trivial.

The EAT further ruled that the second aspect of disadvantage was causation, and that there was evidence supporting the tribunal’s conclusion that the employee would not have taken part in the interview for reasons unconnected with his disability. Therefore, the EAT held that his disability had not prevented him from complying with a PCP and that, on that basis alone, the appeal could not succeed. precover from the effects which would have hindered his participation in an interview, could be considered an adjustment within t7he meaning of the Act, but that, given the significant impairment in the present case, from which recovery would have been protracted, the short delay to the date of the interview which the employer had applied could not be considered an adjustment. However, the EAT ruled that, on the evidence, the tribunal had been entitled to consider that the surrounding circumstances and the impact on other employees had meant that no step, including ‘slotting in’, would have been a reasonable step for the employer to have taken. Accordingly, the appeal was also dismissed on that basis.

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Personal Injury: The importance of considering Part 36 offers when considering damages claims

In Brown v G & K Manson Ltd [2022] EWHC 3004 (KB), the King’s Bench Division assessed damages in a claim brought against the claimant’s former employer, in circumstances where the claimant had developed asbestosis following his exposure to asbestos during his employment. Judgment on liability had been entered in earlier proceedings. Among other things, the court accepted the main elements of the submissions made on the claimant’s behalf, subject to a recalculation of the hourly rate for gratuitous care and assistance. The court accepted that the debilitating breathlessness which the claimant had begun to suffer from early 2019 from asbestosis had resulted in his wife undertaking an additional daily hour of assistance, and it took into account, among other things, the claimant’s extra energy costs as a result of the energy price cap increases, bearing in mind that his forced sedentary lifestyle required his domestic heating to be on for longer, so as to keep him warm. The court held that the appropriate total award of damages was £91,438.54, including interest.

However, the court was informed that the claimant had put forward a Part 36 offer of £72,500 in full and final settlement (meaning under Part 36 of the Civil Procedure Rules, whereby one party seeks to settle the claim for a fixed, whole amount, which if not accepted, can have consequences as to the award and costs). Accordingly, the EAT ruled that the consequences of CPR Pt 36.17(4)(d) came into effect, such that the claimant was entitled to an additional amount of £9,143.85, representing 10% of the amount the court had awarded, including interest. The court also awarded interest under Pt 36.17(4)(a).

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Pensions: The Pension Ombudsman should have considered redeployment as a reasonable adjustment

In Andrew v Royal Devon and Exeter NHS Foundation Trust [2022] EWHC 2992 (Ch), the Chancery Division allowed in part Mr Andrew’s appeal from a decision of the Pensions Ombudsman which had determined that Mr Andrew’s claim for financial loss had failed on reliance. Mr Andrew was employed by the respondent trust as a specialist orthotic technician. He was a member of two pension schemes (the 1995/2008 scheme and the 2015 scheme). Having developed significant health problems, in August 2017 Mr Andrew had applied for both Tier 1 and Tier 2 ill-health retirement (IHR). It was approved on 28 December 2017 on the basis of Tier 1, but not Tier 2. Mr Andrew’s employment terminated on 18 February 2018. When he was sent the final calculation of his pension entitlement, however, on 29 March 2018, his entitlement under the 1995/2008 scheme and the annual pension did not coincide with the estimate given to him in August 2017.

Mr Andrew complained to the Ombudsman. The Ombudsman had decided that he was given the correct figures. The court held, among other things, that on the basis of the evidence available to the Ombudsman, it had concluded that but for the inaccurate IHR estimate Mr Andrew would have retired at the same time and, as such, had suffered no financial loss. There was an evidential basis for that conclusion in so far as it related to Mr Andrew’s role. In particular, while Mr Andrew might have chosen to remain on sick pay the evidence did not point inexorably towards that conclusion. In addition, the court held that there was no error in the Ombudsman deciding to proceed on the basis of the evidence before him rather than holding an oral hearing.

As to the possibility that Mr Andrew would have sought and been granted redeployment as a reasonable adjustment, the court held that the Ombudsman had not considered and rejected that possibility; rather, the Ombudsman had only considered the fact that it was still open for Mr Andrew to apply for another role. The fact that it could be a reasonable adjustment to redeploy an employee without there being a need for them to go through a competitive recruitment process had been confirmed in Archibald v Fife Council [2004] ICR 954. Failing to consider that possibility amounted to an error of law on the part of the Ombudsman and the case was remitted on that basis.

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Tribunals: Appeal to EAT must attach the signed judgment, not copy and pasted text

In Richardson v Extreme Roofing Ltd [2022] EAT 173, the EAT held that an appeal from an employment tribunal judgment to the EAT must attach a copy of the actual signed judgment and written reasons not just text which has been copied and pasted from that judgment and reasons. If an appellant is unable to attach a copy of the written reasons or ET1 claim form or ET3 response to the appeal and instead supplies a written explanation as to why they are not included then that explanation must be genuine and set out why the appellant is unable to produce the necessary documentation.

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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.


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Employment Law Case Update – November 2022

Employment Law

This month’s news highlights cover a variety of issues including consultations in redundancy, settlement agreements reaching too far, a substantial compensation award against Royal Mail, facts versus intentions in relation to employment status and a look at what’s next for Mercer v Alternative Future Group when the Supreme Court is asked to look at the legislative gap in protection for striking workers.

  • Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one
  • Settlement Agreements: Unknown future claims cannot be settled in advance
  • Whistleblowing: Tribunal awards compensation for career loss, psychiatric injury and substantial injury to feelings against Royal Mail
  • Employment Status: The parties’ intentions do not determine employment status
  • Unions: Supreme Court to hear bid to protect striking workers

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 and Another [2022] EAT 139, the EAT allowed the appellant’s appeal against the decision of the employment tribunal in relation to a claim of unfair dismissal by reason of redundancy. The EAT held, among other things, that the tribunal had overlooked aspects of the issue of consultation in its deliberations, conflating consultation on alternative employment with the broader consultation required in a redundancy situation. Consultation was a fundamental aspect of a fair procedure. That aspect applied equally, with appropriate adaptation, to redundancy situations where there was no collective representation.

In order that consultation was ‘genuine and meaningful’ a fair procedure required that consultation took place at a stage when an employee or employee representative could still, potentially, influence the outcome. In circumstances where the choice of criteria adopted to select for redundancy had the practical result that the selection was made by that decision itself, consultation had to take place prior to that decision being made. It was not within the band of reasonable responses, in the absence of consultation, to adopt one criterion which simultaneously decided the pool of employees and which employee was to be dismissed.

The implied term of trust and confidence required that employers would not act arbitrarily towards employees in the methods of selection for redundancy. While a pool of one could be fair in appropriate circumstances, it should not be considered, without prior consultation, where there was more than one employee.

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Settlement Agreements: Unknown future claims cannot be settled in advance

In Bathgate v Technip UK Ltd  [2022] EAT 155, Scottish EAT has held that s.147 of the Equality Act 2010 does not allow a qualifying settlement agreement to settle future claims unknown to the parties at the time of entering into the agreement. The judge considered that the existing case law was not to contrary effect. While the decision concerns the interpretation of s.147(3)(b) of the Equality Act 2010, it applies to settlement agreements made under other statutes where there is a corresponding provision (for example, s.203(3)(b) of the Employment Rights Act 1996 (ERA 1996)).

S.147(3)(b) requires the agreement to identify “the particular complaint“. This is not satisfied by a long list of claims defined by reference to their legal character or section number. Parliamentary intention was that settlement should only be available in the context of an agreement which settles a particular complaint that has already arisen between the parties, and the purpose of the statutory provision is to protect employees when agreeing to relinquish the right to bring proceedings. The statutory words suggest that Parliament anticipated the existence of an actual complaint or circumstances where the grounds for a complaint existed, and the precision of those words is not apt to describe a potential future complaint.

The EAT also considered the territorial scope of the Equality Act 2010 as it applies to seafarers. It held that an employee does not cease to be a seafarer, within the meaning of s.81 of the Equality Act 2010, by working onshore for the last six months of employment, having worked for nearly 20 years on ships. S.108 of the Equality Act 2010, which deals with post-employment claims, is dependent on the employee’s rights during employment. Where an employee is excluded from the territorial scope of the Equality Act 2010 by s.81 during employment, they are also excluded post-employment.

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Whistleblowing: Tribunal awards compensation for career loss, psychiatric injury and substantial injury to feelings against Royal Mail

Following a remedies hearing, an employment tribunal has awarded substantial compensation for unfair dismissal and detriment in Jhuti v Royal Mail Group ET/2200982/2015 (3 October 2022), a whistleblowing case that had previously been subject to an appeal in the Supreme Court.

The tribunal found that the claimant had suffered a “lengthy and intense period of bullying” over five months prior to taking sick leave and being dismissed. This treatment had “destroyed the claimant’s life“, leaving her with PTSD and recurrent episodes of severe depression, and leading to the breakdown of her relationship with her teenage daughter. The medical evidence was that she would never work again due to the combined effects of her illness and the stigma of six years’ unemployment since her dismissal.

As well as financial compensation for total career loss to age 67, the tribunal awarded £55,000 general damages for psychiatric injury, £40,000 for injury to feelings and £12,500 aggravated damages to reflect the respondent’s oppressive conduct at the remedies hearing. It also made a 0.5% uplift for unreasonable failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.

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Employment Status: The parties’ intentions do not determine employment status

In Richards v Waterfield Homes Ltd and another [2022] EAT 148, an employment tribunal erred in finding that, in a working relationship which had numerous indicators of employment status and only one in favour of self-employment, that the latter should be determinative of the issue. Self-employment (implicit in the use of the CIS scheme (a construction workers tax scheme) to pay the claimant, “under which registrants know they will be treated as self-employed”) was only one of the factors to be considered.

Looking at the findings as a whole, and consistent with case law, the only proper conclusion open to the employment tribunal was that the claimant was indeed an employee. The case was remitted to the employment tribunal for a remedy hearing on that basis.

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Unions: Supreme Court to hear bid to protect striking workers

The Supreme Court will hear arguments from UNISON, the UK’s largest union, that a recent Court of Appeal decision unfairly allows employers to punish striking workers, as historic numbers take industrial action. UNISON will support Fiona Mercer, a former trade union representative, in her appeal at the Supreme Court against Business Secretary, Grant Shapps. His predecessor, Kwasi Kwarteng, had intervened in March 2022 to reverse Mercer’s win against her employer, Alternative Futures Group (AFG), a health and social care charity.

The EAT in Mercer v Alternative Future Group [2021] IRLR 620, ruled that AFG had violated the European Convention on Human Rights when it suspended Mercer in a dispute over plans to cut allowances for sleep-in staff. But the government successfully argued to the Court of Appeal, in Mercer v Alternative Future Group Ltd and another (Secretary of State for Business, Energy and Industrial Strategy intervening) [2022] EWCA Civ 379, that keystone labour legislation (the Trade Union and Labour Relations Consolidation Act 1992) does not protect striking workers from detrimental treatment.

Workers cannot be fired for taking part in industrial action, but that protection expires after 12 weeks—and there is a ‘legislative gap’ in what other protection is available to employees taking industrial action, the Court of Appeal said. That gap means ‘unscrupulous employers’ can make life difficult for workers who exercise their right to strike, UNISON said as it revealed that it had won permission to appeal to the Supreme Court. No date has been set for the hearing, although UNISON said it expects it in the second half of 2023.

The union is expected to argue that the UK is obliged by international labour law and precedents from the European Court of Human Rights to protect workers from detriment short of dismissal. The government is likely to counter that those standards exceed what is required under domestic legislation.

UNISON’s general secretary, Christina McAnea, said the appeal is “a chance to fix a glaring legal loophole“. “Employees only strike as a last resort and shouldn’t face punishment for protesting about their employer’s behaviour“, McAnea continued. Hundreds of thousands of workers are thinking about industrial action as they struggle to cope with low pay in the face of soaring prices. Everyone must be able to exercise their rights without fearing they’ll be treated unfairly for standing up for themselves at work“.

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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


Back

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.


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