Tag: #Tribunals

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Employment Law Case Update – November 2024

  • Employment,

  • 27th November 2024

Articles

This month’s newsletter highlights some critical aspects of employment law underscoring the evolving interpretations of workers’ rights, employer obligations and procedural safeguards. The EAT has clarified worker status, once again, providing guidance on how a black cab driver supplementing his income using a ride-hailing app was not a “worker” but operated independently, contrasting with the Uber precedent emphasizing factors like business autonomy and flexibility in accepting or rejecting fares.  Another case showed the EAT upholding the inadmissibility of pre-termination settlement negotiations in unfair dismissal claims unless improper behaviour is evident, reaffirming the protective scope of “without prejudice” conversations. And lastly, an employer has been found liable for unfair dismissal and discrimination after firing an employee upon learning she was pregnant during her return from maternity leave, with the tribunal spotting inconsistencies in the employer’s rationale.

Worker Status: Driver using a black cab app was not a worker

In Johnson v GT Gettaxi (UK) Ltd [2024] EAT 162, the EAT held that the Claimant was not a worker of the Respondent company. The Respondent operated a customer application which allowed members of the public to order black cabs, rather than hailing a black cab on the street. Licensed black cab drivers could sign up to the driver app, are free to ply for hire while signed up to the app and can register with other similar taxi apps at the same time as using the driver app.

The Claimant was a licensed black cab driver from April 2014. He signed up and used the Respondent’s app between April 2015 and 2017 and made 171 journeys, making up approximately 5% of his earnings. In 2020, when he re-applied to use the app, his application was refused. He believed that this was because he had made protected disclosures. This gave rise to a preliminary issue as to whether or not the Claimant was a worker under s.230 of the Employment Rights Act 1996.

The case had obvious echoes of Uber BV & Ors v Aslam & Ors [2018] EWCA Civ 2748, where the Supreme Court held that Uber drivers were workers. However, both the employment tribunal and the EAT found that the Claimant was not a worker of the Respondent and that the Respondent’s drivers, more generally, were not workers. They were in business on their own account as black taxi drivers. The use of the Respondent’s app was just a way to increase their business. The following points were relevant to this conclusion:

  • No penalties were imposed by the Respondent for rejections of rides offered. This indicated that the Claimant was in business on his own account.
  • The Claimant was free to follow the routes he considered best and there was no penalty for not following the GPS route (unlike in Uber v Aslam). 
  • The Claimant was given limited details about passengers on accepting fares. There was nothing stopping the Claimant from making arrangements direct with passengers for other trips.
  • Drivers were able to increase their earnings by plying for hire in the traditional way as a black cab driver or by signing up to other apps. This was different to Uber, as Uber drivers could not ply for hire in the same way as a black taxi can. 

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Unfair Dismissal: Evidence of pre-termination negotiations inadmissable

In Gallagher v McKinnon Auto and Tyres Ltd [2024] EAT 174, the Employment Appeal Tribunal upheld the tribunal’s decision that pre-termination negotiations between the Claimant and the Respondent were inadmissible in his unfair dismissal claim.

Under s.111A of the Employment Rights Act 1996, pre-termination discussions, known as ‘protected conversations’, are inadmissible in ordinary unfair dismissal claims if conducted without ‘improper behaviour’, allowing confidential conversations about mutually agreed employment termination terms, even without a prior dispute. The provision is supported by an ACAS Code.

The Claimant had worked as a branch manager for the Respondent and due to illness had been absent. When he returned to work, the Respondent decided his position was no longer needed and proposed a redundancy process. At a meeting stated to be ‘off-the-record’, the Claimant was offered a settlement agreement and given 48 hours to respond, with the indication that redundancy would follow if he declined. The Claimant refused and was subsequently dismissed for redundancy. He claimed unfair dismissal and attempted to use the settlement discussions in evidence. The tribunal ruled these discussions were protected pre-termination negotiations, and since there was no improper behaviour, they were inadmissible.

The Claimant appealed to the EAT, arguing that the tribunal’s decision in this regard was perverse. He argued there was improper behaviour as:

  1. He was told the meeting was a ‘return to work’ meeting and was taken by surprise when it was used to propose severance terms – it was therefore set up under false pretences;
  2. He was only given 48 hours to consider a redundancy offer of £10,000, contrary to ACAS guidance suggesting a minimum of 10 calendar days; and
  3. He was told his role was redundant, therefore exerting undue pressure on him implying his dismissal was inevitable if the offer was not accepted.

The EAT upheld the decision of the ET.  In dismissing the appeal, it held that 1 and 2 did not represent improper behaviour in the circumstances: the discussions were calm, and the Claimant was given an opportunity to consult with family and seek advice. While the meeting’s purpose was not transparent, this did not amount to impropriety sufficient to override the statutory inadmissibility of the negotiations. The EAT agreed that the 48-hour deadline for considering the verbal offer was not unreasonable under the circumstances. The Claimant could have accepted, countered, or rejected the offer. The Respondent’s statement that the role was redundant was found to relate to initiating a redundancy process rather than a definitive dismissal threat.

In respect of 3, the EAT held that it was important to distinguish redundancy situations from disciplinary situations. The ACAS Code does state that a form of undue pressure can be telling an employee that, if they do not accept the offer, they will be dismissed. However, this guidance specifically refers to a disciplinary situation. In this case, a redundancy situation had arisen. It was accepted that the Respondent had told the Claimant that his role was redundant. However, this did not mean that dismissal was inevitable as there were still the possibility of alternative employment.

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Unfair Dismissal: Pregnant employee sacked when pregnant on return from maternity leave

In N Twitchen v Genu Prima Ltd T/a First Grade Projects and J Morgan  [2024] UKET 1601455/2023, an administrative assistant who was dismissed from her job after returning from maternity leave pregnant has been awarded £28,706.76 by a tribunal.

The Claimant attended a meeting with the managing director, Jeremy Morgan, in February 2023 that began “positively”, with him “saying the business was doing well” and explaining they recently managed to secure a contract with the NHS. Mr Morgan went on to say he was looking forward to her coming back to work and they agreed what hours she would be working. However, towards the end of the meeting, the Claimant admitted she was pregnant again. When her maternity leave ended at the end of March, no one contacted her about her return to work and they failed to respond to an enquiry about her holiday allowance for later in the year. A little while later, following other contact between the two in April, Mr Morgan called to say that following financial difficulties, late payments and a new software system being installed, she was being made redundant.

The judge found there was significant inconsistency in Mr Morgan’s reasoning for making the Claimant redundant. During their February meeting, he had claimed the business was doing well and made no mention of financial difficulties. He also hadn’t made any mention of the new software that supposedly made the Claimant’s role obsolete, even during their April phone call. No evidence of either had been produced during the tribunal case and at no stage did he send the Claimant a written statement setting out the reasons for the dismissal. He therefore ruled that the Claimant was dismissed because she was pregnant.

The judge found that her dismissal was “unfair, discriminatory, and caused significant emotional distress.” He emphasised that being fired while pregnant and losing financial stability had a profound impact on her, particularly given her family responsibilities.

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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 – 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.

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Employment Law Case Update – September 2024

  • Employment,

  • 27th September 2024

Employment Law

This month our employment law case updates contain some key issues in employment law: discrimination protections, and the balance between the rights and freedoms of individuals and the effect their words or acts may have on those around them.

  • Collective Agreements: Supreme Court restrains Tesco from ‘firing and rehiring’ employees on less favourable terms
  • Unfair Dismissal: Dismissal based on capability and performance is fair
  • Equality Act: Complaint by LGBT charity about ‘gender critical’ tweets did not induce or cause discrimination
  • Equality Act: English Nationalist loses appeal for protection of his views

Collective Agreements: Supreme Court restrains Tesco from ‘firing and rehiring’ employees on less favourable terms

In Tesco Stores Ltd v Union of Shop, Distributive and Allied Workers (USDAW) [2024] UKSC 28, in a unanimous decision in which Lord Burrows and Lady Simler delivered the leading judgment, the Supreme Court agreed with the previous High Court decision and restored the injunction restraining Tesco from terminating employment contracts for the specific purpose of depriving employees of their ‘permanent’ contractual right to retained pay and offering re-engagement without this inclusion. It was held that the employment contracts contained an implied term which prevented Tesco from exercising dismissal rights for this purpose.

The Supreme Court allowed the appellant employees’ (and their union’s) appeal, concerning whether the Court of Appeal, Civil Division, had erred in finding that the respondent company (Tesco) had been entitled to terminate its employees’ employment contracts for the specific purpose of depriving them of ‘retained pay’ (RP) (a financial contractual entitlement which was described as a ‘permanent’ benefit), and to offer re-engagement on terms without RP (the ‘fire and re-hire’ mechanism). The High Court had granted an injunction to restrain Tesco from terminating the employees’ employment to remove the RP term. The Court of Appeal had allowed Tesco’s appeal. The court ruled among other things, that: (i) on the true construction of the express RP term in the relevant employment contracts, the word ‘permanent’ conveyed that the right to RP was not time-limited in any way and would continue to be paid to employees for as long as their employment in the same role continued, subject only to the other two qualifications set out in the RP term; (ii) however, applying the test of business efficacy (or obviousness), Tesco was precluded by an implied term from exercising the contractual right to dismiss the claimants on notice for the purpose of removing or diminishing their right to receive permanent RP; (iii) the exception to the general rule that a contract of employment was not specifically enforceable was engaged, in circumstances where there had been no breakdown of mutual trust and confidence (Tesco was prepared to re-engage the relevant employees), and where damages would be inadequate; and (iv) accordingly, the injunction which the High Court had granted in favour of the employees would be reinstated.

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Unfair Dismissal: Dismissal based on capability and performance is fair

In Kikwera-Akaka v Salvation Army Trading Company Ltd [2024] EAT 49, the EAT found the Employment Tribunal did not err in concluding that the Claimant had been fairly dismissed for capability and performance. The Claimant worked for the Respondent in one of its charity shops. Many of the staff who work in those shops are volunteers and some have additional vulnerabilities. An incident occurred between the Claimant and a vulnerable volunteer, as a result of which he received a final written warning. That stated that further misconduct may result in dismissal. In addition, he was placed on a personal improvement plan (PIP). The Tribunal found that this was specifically linked to the incident with the volunteer: one aspect of his performance which the Respondent made clear needed to improve through that PIP was his interaction with volunteers. The Claimant did not consider that there was anything which he needed to address in that regard. The PIP ended a few days earlier than planned. The Claimant was invited to a performance capability meeting to discuss the PIP. He was expressly warned that dismissal may result. The Claimant’s position regarding his interaction with volunteers did not change: he rejected the suggestion that he needed to improve or that he required further training. He was dismissed.

The Claimant’s appeal against dismissal, in which he maintained his previous stance, was unsuccessful. On the facts the Tribunal concluded that the Claimant had been given a fair opportunity to improve his performance: his interaction with volunteers was a significant and important part of his performance, and was also linked to the misconduct which led to the final written warning. The Tribunal did not err in its approach or in its application of relevant legal principles. Observations upon the differences, and similarities, in a fair approach when an employer considers dismissal for capability compared to misconduct.

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Equality Act: Complaint by LGBT charity about ‘gender critical’ tweets did not induce or cause discrimination

In Bailey v Stonewall Equality Ltd [2024] EAT 119, the EAT held that an Employment Tribunal did not err in rejecting a claim, by a barrister who holds gender critical beliefs, that Stonewall, an LGBT campaign charity, caused or induced her chambers to discriminate against her on the grounds of her protected belief, contrary to section 111 of Equality Act 2010 (i.e. relating to instructing, causing or inducing another person to contravene the Act). The tribunal’s finding that the charity’s complaint was a ‘protest’, without any specific aim in mind except perhaps a public denial of the chambers’ association with the barrister’s views and contained no element of threat, did not satisfy a finding of inducing or causing an act of discrimination.

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Equality Act: English Nationalist loses appeal for protection of his views

In Thomas v Surrey and Borders Partnership NHS Foundation Trust (1) and Brett (2) [2024] EAT 141, the EAT ruled that English nationalism is not a legally protected philosophical belief under the Equality Act 2010 (EqA 2010). The Claimant, Steven Thomas, a health worker, has lost his appeal against an employment tribunal’s decision that his belief in English nationalism, which included anti-Islamic views, was not one which was protected under the EqA 2010. This original decision was reached at a preliminary hearing in the claim he brought against a National Health Service (NHS) trust after it ended his employment after three months.

Judge Clive Sheldon KC wrote in the judgment of the EAT:  ‘The Claimant’s views are of an English nationalism which believes that there is no place in British society for Muslims or Islam itself… The Claimant is not prevented from holding his views. But he is outside of the right to complain that he has been discriminated against in relation to those beliefs.’

‘English Nationalism can be a legally protected philosophical belief, but the Claimant’s specific views, which included that Muslims should be forcibly deported from the UK, did not merit protection under free expression rights enshrined in the European Convention of Human Rights,’ he added.

This was because his expressed beliefs violated another right in the doctrine—that no one can perform acts ‘aimed at the destruction of any of the rights and freedoms’ of others, and, added the judge, he cannot also claim protection from discrimination under the EqA 2010 because his views are not worthy of respect in a democratic society.

Thomas’ solicitor, Robin Tilbrook of Tilbrook Solicitors, said that his client will take his case to the Court of Appeal, or to the European Court of Human Rights if necessary. Tilbrook said he believed the judgment misinterpreted the European Convention article that limits Thomas’ free speech rights as binding on the employer, rather than on the state. He likened Thomas’ case to Redfearn v United Kingdom [2013] IRLR 51, where another English Nationalist won his European human rights case despite losing his employment claim in the UK.

His past political affiliation to the English Democrats, a minor far-right party, meant that Thomas was sanctioned because his beliefs were ‘unacceptable to the woke view of the world’, Tilbrook added. Tilbrook is the current national chair of the English Democrats.

‘In this case, there are comments about Islam that have taken my client’s views out of that protection’, Tilbrook said. ‘They have put my client in a position where he’s always in danger of being fired by an employer.’

The case is part of a surge in claims about protected beliefs that lawyers say are incrementally blurring the lines between unconventional but legally valid views and politicised public debates.

The trust argued in June that Thomas’ views were ‘akin to Nazism‘, which British courts have ruled is not protected. They also defended the employment tribunal claim on the basis that he was actually dismissed because he lied in his résumé about an unspent conviction.

Thomas had either posted himself, or reposted, on social media platform X, comments such as ‘Ethnic cleansing…always happens to Muslims…wonder why?‘ and used the hashtag ‘#RemoveAllMuslims’, according to the judgment of the employment tribunal.

Oscar Davies of Garden Court Chambers, counsel for Thomas, argued in written submissions in the appeal case that the views of the claimant ‘might well be considered offensive and abhorrent to some’—but did not seek to destroy the rights of anyone.

As such, they did not violate the European Convention on Human Rights, Davies added.

But Sheldon J upheld the employment tribunal’s reasoning for dismissing the case.

‘A finding that the claimant’s beliefs included the banning of Islam or the forcible removal of Muslims from the United Kingdom is only consistent with an infringement—and in fact the destruction—of rights of others’, he ruled.

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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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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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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 2023

  • Employment,

  • 15th December 2023

Employment Law

As the year draws to a close we delve into some technical cases – an update on the case that just keeps on giving (Deliveroo), a look at how “heat of the moment” resignations play out and when they might be considered to have in fact been an unfair or wrongful dismissal, and how a tribunal got it wrong in not calling out a respondent’s alleged dishonesty.

  • Worker Status: Supreme Court unanimously agrees that Deliveroo riders were not in an employment relationship
  • Termination: No ‘special circumstances exception’ when assessing resignation or dismissal
  • Tribunals: Tribunal’s failure to allege dishonesty amounted to a serious procedural irregularity

Worker Status: Supreme Court unanimously agrees that Deliveroo riders were not in an employment relationship

On 21 November 2023, the Supreme Court handed down its judgment in Independent Workers Union of Great Britain v Central Arbitration Committee [2023] UKSC 43. The issues at stake were, did the Central Arbitration Committee’s refusal to accept the Union’s application to be recognised by Deliveroo for collective bargaining interfere with the rights of Deliveroo riders to form and join a trade union under Article 11 of the European Convention on Human Rights? If so, was this interference justified? Should the courts below have construed section 296(1)(b) of the 1992 Act so as to give effect to Article 11?

This appeal concerns collective bargaining rights in respect of Deliveroo riders. The appellant, the Independent Workers Union of Great Britain (“the Union”) is an independent trade union whose members include Deliveroo riders. The second respondent, Roofoods Ltd (“Deliveroo”) operates the Deliveroo food and drinks delivery service.

On 28 November 2016, the Union submitted an application to the first respondent, the Central Arbitration Committee (“the CAC”), that the Union should be recognised by Deliveroo for collective bargaining in respect of a group of Deliveroo riders in the Camden zone. Applications are considered by the CAC in accordance with Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”). The CAC refused to accept the Union’s application on the basis that the riders were not “workers” within the meaning of the 1992 Act. This was because Deliveroo did not require them to provide delivery services personally, but permitted the use of substitutes, i.e. they did not provide “personal service”.

Both the High Court and the Court of Appeal dismissed the Union’s claim for judicial review of the CAC’s decision. The Union then appealed to the Supreme Court.

In a unanimous decision delivered by Lord Lloyd-Jones and Lady Rose in a joint judgment, the Supreme Court agreed with the previous decisions of the lower courts that the Deliveroo riders in question did not have an employment relationship with Deliveroo for the purposes of article 11 of the European Convention on Human Rights (ECHR) (i.e. the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions), and therefore the provisions of that article did not apply to them.

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Termination: No ‘special circumstances exception’ when assessing resignation or dismissal

In Omar v Epping Forest District Citizens Advice [2023] EAT 132 the EAT had to consider the position of a claimant who had resigned ‘in the heat of the moment’ and then sought to retract the resignation. The claimant had contended that he should not be treated as having resigned as the situation fell within the so-called ‘special circumstances exception’ recognised in Sothern v Frank Charlesly [1981] IRLR 278. He argued that he had been unfairly and wrongfully dismissed. The employment tribunal disagreed and found that the claimant had resigned.

The EAT held, among other things, that the employment tribunal had erred in law by failing to make adequate findings of fact and failed to direct itself properly in accordance with the applicable legal principles set out in Sothern v Frank Charlesly. The EAT summarised the case law on the issue, including, among other things, that:

  • there is no such thing as the ‘special circumstances exception’; the same rules apply in all cases where notice of dismissal or resignation is given in the employment context;
  • words of dismissal or resignation, or words that potentially constitute words of dismissal or resignation, must be construed objectively in all the circumstances of the case in accordance with normal rules of contractual interpretation (i.e. the reasonably bystander test);
  • the subjective uncommunicated intention of the speaking party is not relevant, but the subjective understanding of the recipient is relevant but not determinative in assisting the tribunal form a judgment as to what the reasonable bystander would have thought.

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Tribunals: Tribunal’s failure to allege dishonesty amounted to a serious procedural irregularity

In Stuart Harris Associates Ltd v Gobudhun [2023] EAT 145 the EAT dismissed the respondent employer’s appeal against the decision of the employment tribunal that held that: first, the claimant employee had been constructively dismissed; and second, the respondent had been either dishonest or incompetent when they engaged in the expenses practice that had led to the claimant’s resignation.

The respondent contended that the employment tribunal had erred in law since: (i) it had prejudged the case; (ii) descended into the arena by conducting their own extensive research into the law and practice of filing tax returns; and (iii) determined that the respondent’s principal, had been either ‘dishonest’ or ‘incompetent’ when it had not been put to him in terms that his conduct was dishonest or incompetent.

The EAT held, among other things, that: (i) the failure to put to the respondent that he had acted dishonestly amounted to a serious procedural irregularity which meant that the finding of dishonesty had to be set aside; and (ii) there had been no prejudgment of the case and the employment tribunal’s conduct regarding the hearing had not been unfair.

Consequently, given that the employment tribunal’s conclusions as to unfair constructive dismissal could stand irrespective of the finding as to dishonesty, the decision overall remained and was not set aside.

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 – October 2023

  • Anne-Marie Pavitt,

  • 24th October 2023

Employment Law

An interesting look at how not to exclude staff on maternity leave, how to properly handle transgender workers, calculating holiday pay where employees are subject to compulsory overtime and the use of contract clauses to retain employees where discretionary bonus payments are payable which do not amount to restraint of trade.

  • Sex Discrimination: Erosion of reputation as “an effective and useful member of staff” due to pregnancy is discriminatory
  • Sex Discrimination: ‘Deadnaming’ transgender worker amounts to less favourable treatment
  • Holiday Pay: Landmark case confirms a gap of three months or a correct payment does not necessarily break a series of deductions
  • Contract: Bonus clause conditional on staying in employment not restraint of trade

Sex Discrimination: Erosion of reputation as “an effective and useful member of staff” due to pregnancy is discriminatory

In Smith v Greatwell Homes (3316461/2021) a tribunal had to consider the employer’s actions and treatment of Ms Smith, following her declaration to her boss that she was pregnant. This case was reported in People Management on 13 October 2023:

Ms Smith began working at Greatwell Homes in March 2019 as a business improvement analyst within the business improvement team, where she was apparently a valuable and ambitious member of staff. The tribunal noted she was a “credible and consistent witness”. Within her team there were three members of staff: herself, a business improvement manager and a head of business intelligence. However, the person occupying the post of business improvement manager – the person who was meant to be Ms Smith’s line manager – had been absent from August 2019 due to long-term ill health. She never returned to work and resigned in early 2020. Consequently, Ms Smith was required to take on a “significant proportion” of the responsibilities that should have been her line manager’s.

The firm’s head of property services and compliance, Miss Herzig, viewed Ms Smith as a valuable member of the team and encouraged her to apply for a more senior post with line management responsibilities should one become available. In April 2020, Ms Smith informed Miss Herzig that she was pregnant. The tribunal found the news was not effectively communicated to human resources by Miss Herzig, and Ms Smith was required to confirm with HR that she was expecting a baby on two further occasions. “We find that this was symptomatic of the respondent’s attitude towards the claimant and/or to the fact she was pregnant,” it said. 

Ms Smith’s first claim arose during the same month. All staff were given a free day off by the company as a thank you for their efforts during the Covid pandemic. The day off was a Friday, however, when Ms Smith mentioned that she did not work Fridays, the firm refused to allow her to take a different day off. In September 2020, she went on maternity leave. Other than a few emails from HR about pension matters and some personal messages from Miss Herzig, Ms Smith did not hear from her employer during her maternity leave. 

Then in April 2021, Ms Smith received a text message from Miss Herzig in which she was informed that someone had been appointed as her new manager and the firm had also hired a Governance and Assurance Manager, which was only published internally on the company intranet. These were both roles, the tribunal ruled, that would have been opportunities for Ms Smith to progress within the company. The claimant was not happy about the text and what she perceived to be a lack of communication from the respondent during her maternity leave, which went against the company’s maternity policy – which stated that employees on maternity leave must be informed of job vacancies. She commenced a grievance which was heard by Mr Wilesmith, but it was not upheld. 

In August 2021, the respondent began to send job adverts to Ms Smith. This included a re-advertisement of the Governance and Assurance Manager’s post, as the current person occupying the role was on a 12-month contract and it would end in April 2022. The claimant resigned by letter dated 31 August. By a letter of the same day, the respondent accepted her resignation.

The tribunal held that Ms Smith was treated less favourably by the respondent on the grounds that she was on maternity leave, and commented that neither Miss Herzig nor Mr Wilesmith were impressive witnesses. It noted: “Neither demonstrated sufficient knowledge, skills or empathy in the way they dealt with the claimant throughout this process. It was the tribunal’s view that both were ill-equipped to deal with equality and diversity issues. It is incumbent on an employer to make sure that appropriately skilled and experienced staff deal with equality and diversity issues. The respondent had singularly failed in this regard.”

Regarding the free day off, the tribunal said the firm’s decision to not allow her to reschedule a day off was “unfavourable towards part-time workers, and therefore indirectly discriminatory towards female members of staff, as well as deeply unsympathetic in relation to the claimant herself”. It also ruled that Ms Smith “clearly [had] less favourable treatment” because she was on maternity leave as she was “barred from the opportunity” of participating in any recruitment process, or the chance to compete with other applicants to progress her career.

Employment judge Wood said: “In our view, it is clear that Miss Herzig’s view of [Smith] as an effective and useful member of staff had been eroded by the knowledge that she had become pregnant and was on maternity leave. It may have been, in part, a subconscious attitude. Nonetheless, we are clear that it was the reason, or a significant part of the reason, for the unfavourable treatment.” It also said the firm’s decision to send Smith job ads in August 2021 for vacancies that were expected to become available in April the following year were just “window dressing” to disguise the treatment that had gone before. Greatwell Homes was consequently ordered to pay Ms Smith £50,000.

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Sex Discrimination: ‘Deadnaming’ transgender worker amounts to less favourable treatment

In AB v Royal Borough of Kingston upon Thames (ET/2303616/2021) the tribunal ruled that the Borough of Kingston Council had committed several acts of direct discrimination against its employee, Miss AB, because of her status as a transgender woman her while she was undergoing a gender transition by using her previous name. The Employment Tribunal upheld 10 of her claims and awarded her nearly £25,000 in damages.

The majority of the claims that succeeded were instances in which she was ‘deadnamed’—the term for referring to a trans person by the name, and therefore gender, that they used before they transitioned. The council used Miss AB’s deadname on her office door pass, her pension records, the staff directory, the internal complaints system and her parking pass, according to the judgment. All of these instances amounted to ‘less favourable treatment’ and were ‘because of the claimant’s protected characteristic’, the tribunal found. The tribunal also sided with Miss AB when she argued that management’s decision to remove some of her job responsibilities was an act of direct discrimination. ‘We conclude that [Miss AB’s manager] in taking this action was not simply acting unreasonably, but that the claimant’s protected characteristic was part of the reason for this treatment’, the tribunal ruled. ‘The claim therefore succeeds’.

The panel also found that management’s response to a complaint from Miss AB was direct discrimination because they failed to take the complaint seriously. It found that management ‘did not treat the claimant’s allegation with respect’ and demonstrated ‘a dismissive attitude towards the issue’. ‘We have to conclude that some part of his reaction was because of the claimant’s protected characteristic’, the panel ruled. Similarly, the tribunal held that a manager fell foul of discrimination law when he failed to properly escalate Miss AB’s complaint. ‘Again, we have to conclude that some part of his reaction and his lack of action was because of the claimant’s protected characteristic’, the panel said.

However, many of Miss AB’s claims failed because she filed them too late and did not give the judge a sufficient reason for her delay. Miss AB argued that her employer’s decision to cut off her direct contact with internal councillors was a discrete, rather than ongoing, act. However, the tribunal found that although the decision had ongoing consequences, it was a discrete act and it fell outside the tribunal’s time limits. The panel also found that a reprimand one of the managers gave Miss AB also took place too long before she filed her claim, but added that the claim would have failed in any event because the reprimand was a reasonable management response to her failing to obey an instruction.

The tribunal disagreed with Miss AB’s argument that the council’s failure to implement a health and safety risk assessment for gender transition was discrimination. There was no obligation to undertake such a risk assessment, the judgment said. The panel also found that the council did fail to have appropriate Equalities Act policies in place but said this ‘was not because of the claimant’s protected characteristic but because of HR failures on a wider scale’.

The tribunal awarded Miss AB £21,000 as compensation for injury to feelings plus £4,423 in interest.

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Holiday Pay: Landmark case confirms a gap of three months or a correct payment does not necessarily break a series of deductions

In Chief Constable of the Police Service of Northern Ireland and another v Agnew and others [2023] UKSC 33 it was held that police officers and civilian staff in Northern Ireland are entitled to claim for underpayments of holiday pay going back many years following their employer’s failure to include overtime in its holiday pay calculations.

The Claimants were police officers and civilian staff working for the police in Northern Ireland. The case arose because they had historically only received basic pay for annual leave but the parties had agreed there had been an underpayment because the holiday pay should have included periods of compulsory overtime. The claimants brought claims for underpayment of holiday pay, and the question before the court was how far did this underpayment go back? The relevant Northern Irish legislation (mirroring the Employment Rights Act 1996) provided that a claim could only be made in respect of a payment made in the three months before the claim was brought. However, if the deduction was part of a series, the deductions could be linked together provided that the claim was brought within three months of the last of the series of deductions.

Previously, the EAT in Bear Scotland v Fulton had previously concluded that deductions could only be linked in a series if there was a gap of three months or less between each deduction but here the Supreme Court has now held that where a series of deductions are all based on an employer failing to properly meets its obligations to pay holiday correctly and, but for the mandatory cut off after 3 months which was set out in Bear Scotland, they would otherwise constitute a series, employees should be able to link each deduction. To hold otherwise would produce unfair consequences.

The Supreme Court held that:

(1) the EU principle of equivalence requires the police officers to be allowed the more advantageous series extension found in the Employment Rights (Northern Ireland) Order 1996 even though they are not workers for the purposes of that legislation,

(2) the series extension is therefore read into the relevant part of the Working Time Regulations (Northern Ireland) 2016 to achieve this, and

(3) what constitutes a series of deductions is a question of fact which does not require a contiguous sequence and is not necessarily brought to an end by a gap of three months or a correct payment if that correct payment was calculated when the claimants were at work.

It further found that, (1) there is no legal requirement that leave derived from different sources must be taken in a particular order, (2) it is inappropriate to apply a general principle of using calendar days in the reference period when calculating a worker’s normal pay, and (3) the appropriate reference period when calculating normal pay in any case is a question of fact.

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Contract: Bonus clause conditional on staying in employment not restraint of trade

In Steel v Spencer Road LLP (trading as Omerta Steel) [2023] EWHC 2492 (Ch) the Chancery Division dismissed the appellant’s appeal from a decision which had dismissed his application to set aside a statutory demand served by the respondent. The appellant was a former employee of the respondent. Under the terms of his employment contract, his remuneration was by way of a basic annual salary plus a discretionary bonus scheme. The bonus was conditional on the appellant remaining in the employment of the respondent for three months from the date of payment of any bonus, and not having given or been given notice to terminate his appointment during that period.

In January 2022, the appellant was paid a bonus which was an amount considerably larger than his basic salary at the time. Later, he gave notice of termination of his employment in February. The respondent had requested repayment of the bonus under the clawback provisions in the employment contract. The appellant refused to do so and had argued that the bonus clawback provisions were unenforceable on the grounds that they were in restraint of trade and/or penalty clauses. The court held, among other things, that there was no doubt that an employee bonus or commission scheme which was conditional on the employee remaining in employment for a specified period of time operated as a disincentive to that employee resigning. That had not, however, turned such a provision into a restraint of trade.

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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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Employment Law Case Update – July 2023

  • Employment,

  • 25th July 2023

Employment Law

A round-up of the most significant employment law cases to be published over the last month, and it’s a varied bag. We look at what lead to an interim injunction before a disciplinary hearing, whether it was lawful for the government to revoke legislation without consultation, whether a person can have two employers at the same time for the same work, whether a dismissal meeting is always needed to ensure a fair process and how a lay tribunal member could be considered to have been biased.

  • Injunctions: Witnesses and disclosure of documents at disciplinary hearings
  • Strikes: Could the government revoke legislation to prevent strikers being replaced by agency staff?
  • Worker Status: Can a person have two different employers at the same time for the same work?
  • Unfair Dismissal: Lack of dismissal meeting does not render dismissal unfair
  • Tribunals: Apparent bias in case of lay member posting on social media

Injunctions: Witnesses and disclosure of documents at disciplinary hearings

In Colbert v Royal United Hospitals Bath NHS Foundation Trust [2023] EWHC 1672 (KB), the Claimant, Dr Serryth Colbert, was a consultant in oral and maxillofacial surgery, employed by the Defendant, the Royal United Hospitals Bath NHS Foundation Trust. The Claimant was the subject of disciplinary proceedings brought by the Defendant following allegations that he intimidated and bullied colleagues and other allegations of misconduct. The Claimant issued proceedings on 30 May 2023 seeking an interim injunction relating to the conduct by the Defendant of the disciplinary process.

This case involved two issues in dispute: 1) whether the Claimant had a right to require the attendance of individuals at a disciplinary hearing, who were interviewed as part of the investigation of allegations against him, but who the Defendant was not proposing to call to give evidence, and 2) whether the Claimant was entitled to disclosure of specific documents as part of the disciplinary process, and in particular to an unredacted report that had been produced into alleged misconduct in his department. The Claimant claimed that the way the Defendant had dealt with those two matters breached express contractual obligations, contained in two documents which he contended formed part of his contract: (1) “Maintaining High Professional Standards in the Modern NHS” (“MHPS”) published by the Department of Health; and (2) “Managing Conduct Policy” (“MCP”), the Defendant’s policy for dealing with allegations of misconduct.

In December 2020, the Defendant commissioned an external review to examine the department in which the Claimant worked following allegations having been raised of inappropriate workplace behaviour. A report was produced in February 2021 (“the Atkinson Report”) by the external reviewer, and considered the behaviour of a number of individuals, including the Claimant, and made recommendations, one of which was that the Claimant should be investigated for alleged bullying / inappropriate behaviour. The Claimant was excluded from work from 8 March 2021 while an investigation was carried out (conducted pursuant to the MHPS). An external report was commissioned involving the interviewing of 21 witnesses, including the claimant, and a further report submitted in December 2021 (“the Cunningham Report”). The Report made a number of critical findings about the Claimant including that he had displayed intimidating and bullying behaviour towards a number of colleagues.

On 16 December 2021 a letter was sent to the Claimant with the outcome of the investigation, concluding that the Claimant had a case to answer in relation to a series of allegations, and that the matter would proceed to a disciplinary panel, to be held in January 2023, in accordance with the Defendant’s MCP. The letter stated who would be called as witnesses for the Defendant and who else would be giving evidence, and invited the Claimant to identify who he would be calling, and enclosed a number of documents including the Cunningham Report and a redacted copy of the Atkinson Report (the redactions relating to the other individuals identified by the report).

In January the Claimant wrote back to state the Claimant required that 11 named individuals, described as “management witnesses”, should be present so they could be questioned, and that the Claimant intended to call “around 30 additional witnesses subject to their availability”, and asked for the hearing date to be rescheduled. The Defendant responded by acceding to a later hearing date (May) but declined to provide the 11 witnesses, other than Ms Cunningham who had prepared the second report, and said that he had received all the relevant documents, and the redacted parts of the Atkinson report related only to other members of staff and were not relevant to this investigation.

The Claimant sent a letter before claim setting out:

1. Grounds: The alleged Breaches of Contract by the Defendants are the failure to follow its disciplinary procedures, and to hold a disciplinary hearing in accordance with the Claimant’s contractual rights. These rights are confirmed in the doctor’s employment contract, in [the MHPS] and in the [MCP].

2. The failure to require the Defendant’s primary witnesses to attend the disciplinary hearing so that they can be cross examined by the Claimant’s chosen representative.

3. The failure to allow the Claimant to bring his chosen representative to represent him at the hearing in breach of the amended procedure.

4. The failure to disclose documents pertaining to the disciplinary case in line with MHPS.

The Defendant declined to agree and due to the tight schedule that the letters had caused prior to the rescheduled May disciplinary hearing, the Claimant issued an interim injunction for breach of the Claimant’s contract – the order sought to ensure un-redacted disclosure of all documents, to ensure that all the Defendant’s management witnesses attend the disciplinary hearing and the Claimant’s chosen representative was allowed to represent him at the disciplinary hearing and conduct cross-examination.

In the High Court, (King’s Bench Division) the judge held that, on the correct reading of the Defendant employer’s policy for dealing with allegations of misconduct (the MCP), the employee did not have an unqualified right to insist that any ‘management witness’ could be required to attend a disciplinary hearing to be cross-examined. Accordingly, the court dismissed the employee’s application for an interim injunction. The employee had sought the injunction to ensure unredacted disclosure of all documents, and to ensure that all the defendant’s management witnesses attended the disciplinary hearing, so that they could be cross-examined, and he had contended that the employer had breached express contractual obligations.

The court held that there was no serious issue to be tried, because: (i) the claimant had no real prospect of establishing that his interpretation of the relevant paragraph of the MCP (namely that it meant that the employer had to ensure the attendance at any rescheduled disciplinary hearing of all management witnesses, so that they can be subject to cross examination) was correct; and (ii) there was a good argument that the proceedings should run their course before it would be appropriate for the court to intervene, in circumstances where it was settled law that courts should not become involved in the ‘micromanagement’ of disciplinary proceedings. Further, the court held that the employee had no real prospect of establishing that an investigative report that a Trust had commissioned into a department at a hospital constituted ‘correspondence’, as the word was ordinarily understood or as it was intended to be used in the MHPS. Moreover, there was no real prospect of his establishing that ‘relevant’ material had been withheld from the employee and, even if the report amounted to correspondence, he would not have an unqualified right to have the unredacted report disclosed to him.

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Strikes: Could the government revoke legislation to prevent strikers being replaced by agency staff?

In R (on the application of ASLEF and others) v Secretary of State for Business and Trade [2023] EWHC 1781 (Admin) the High Court considered whether it was lawful for the government, without consultation, to revoke legislation which prevented workers on strike being replaced by agency workers. From 1976 it was unlawful for an employment business knowingly to introduce or supply workers to an employer to carry out the work of employees who were taking part in official industrial action. Regulations made pursuant to section 5 of the Employment Agencies Act 1973 and most recently regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319 – “the 2003 Regulations”), made this a criminal offence.

In 2015, the Government conducted a public consultation on a proposal to revoke regulation 7. The majority of the responses did not favour this change in the law and, in 2016, it was decided not to go ahead. In June 2022, however, the Government decided, in the context of industrial action in the rail sector and other anticipated industrial action, that regulation 7 would be revoked without further public consultation. On 27 June 2022, the draft Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852 – “the 2022 Regulations”) were therefore laid before Parliament, regulation 2(a) of which implemented this measure. The 2022 Regulations were made by the then Secretary of State for Business, Energy and Industrial Strategy (“BEIS”), Mr Kwasi Kwarteng, on 20 July 2022 and they came into effect on 21 July 2022.

Thirteen trade unions challenged the then Secretary of State’s decision to make the 2022 Regulations. The challenge is on two grounds:

  1. that he failed to comply with his statutory duty, under section 12(2) of the 1973 Act, to consult before making the 2022 Regulations (“Ground 1”).
  2. it is contended that, by making the 2022 Regulations, the Secretary of State breached his duty, under Article 11 of the European Convention on Human Rights (“ECHR”), to prevent unlawful interference with the rights of trade unions and their members (“Ground 2”).

The High Court confirmed that the challenge succeeded on the basis of Ground 1 and quashed the Regulations. In particular, it found that the decision to revoke the legislation preventing the use of agency workers in place of striking workers “was not informed by, or tested against, the views of and the evidence of bodies which were representative of the interests concerned”. The Secretary of State could not rely upon consultation which had taken place 7 years earlier on the same point (and was found not to have done so in any event).

The High Court, having upheld Ground 1, decided not to express a view on the more contentious Ground 2.

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Worker Status: Can a person have two different employers at the same time for the same work?

In United Taxis Ltd v Comolly [2023] EAT 93,  the EAT considered Mr Comolly’s worker status. He is a taxi driver, registered with United Taxis and who then did work driving United Taxis’ passengers, through one of its shareholders, Mr Parkinson, using his taxi.  After that relationship came to an end he did work driving United Taxis’ passengers, through another shareholder, Mr Tidman, using his taxi.  After that relationship ended he brought various complaints to the employment tribunal asserting that he was either an employee or a worker of United Taxis or Mr Tidman.

The tribunal determined as preliminary issues that Mr Comolly was a worker of United Taxis and an employee of Mr Tidman. On the facts found, the tribunal properly concluded that United Taxis’ passengers’ contracts were, and were solely, with United Taxis. It also properly concluded that, under Mr Comolly’s contract with Mr Tidman, Mr Comolly provided services to him in exchange for payment.  United Taxis contracted out the task of conveying its passengers to Mr Tidman, who in turn sub-contracted it to Mr Comolly. 

However, the EAT noted that the key cases of Brook Street Bureau v Dacas and Cable & Wireless v Muscat had found the concept of dual employment to be “problematic” and concluded that it could not “see how [the problems] could be overcome”. It therefore found that the tribunal erred in finding that Mr Tidman had a contract with United Taxis under which he also did work for it.  There was no necessity to imply such a contract, whether from the fact that he registered with United Taxis, and was required to comply with its rules and byelaws as a condition of being permitted to convey its passengers, or otherwise.  The tribunal could also not properly find that he was simultaneously an employee or worker of two employers in respect of the same work.

The tribunal also erred in finding that Mr Comolly’s contract with Mr Tidman was a contract of employment, in particular in its approach to the question of control. In particular, although Mr Tidman controlled when the taxi was available to Mr Comolly, he had no control over what Mr Comolly did during the time that the taxi was available to him. Drawing on its findings of fact, a finding was substituted that Mr Comolly was a worker of Mr Tidman.

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Unfair Dismissal: Lack of dismissal meeting does not render dismissal unfair

In Charalambous v National Bank of Greece [2023] EAT 75, the EAT considered the process of dismissal. It found that the lack of a meeting between an employee and the dismissing officer will not in and of itself, in all circumstances, make a dismissal unfair. It found that the decision in Budgen & Co v Thomas [1976] ICR 344 (EAT), was not an authority for the proposition that a dismissing officer must always have direct communication with an employee in order for a misconduct dismissal to be fair. Such a meeting is desirable and good practice but what is essential is that the employee is given the opportunity to ‘say whatever he or she wishes to say’ and there is nothing to say that this communication cannot, in principle, be in writing or by way of a report to the dismissing officer, according to the EAT. In any event, the Employment Tribunal had looked at the procedure adopted by the respondent as a whole: it found that any procedural unfairness in the initial decision to dismiss was sufficiently addressed by the internal appeal, which involved a meeting between the claimant and the decision-maker. The claimant’s appeal against the Employment Tribunal’s finding that her dismissal for misconduct had been fair was therefore dismissed.

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Tribunals: Apparent bias in case of lay member posting on social media

In Aspect Windows (Western) Limited V Retter (as representative of the estate of Mrs C McCrorie) [2023] EAT 95 following the publishing of the decision of the employment tribunal arising from a full merits hearing, one of the lay members of the tribunal posted on her LinkedIn page, a link to a report about the decision in the Mail Online. Followers of hers then responded on LinkedIn and she responded to them.

The unsuccessful Respondent in the employment tribunal appealed on the basis that the LinkedIn posts gave rise to apparent bias against it. The EAT held that whilst it is possible that what a tribunal member said about a case after the event could shed light as to their approach to the hearing of it, the fair-minded and informed observer, having considered the contents of these posts and applying the guidance in Magill v Porter [2001] UKHL 67 and other pertinent authorities, would not in the circumstances consider the lay member was biased in favour of the Claimant. The appeal was therefore dismissed.

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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 – June 2023

  • Employment,

  • 27th June 2023

Employment Law

This month we look at several aspects of the Equality Act through the lens of religious discrimination, race discrimination and harassment. We also take a look at how one should properly calculate holiday pay so as not to fall foul of the Working Time Regulations.

  • Religious Discrimination: EAT remits Facebook posts case and sets out principles underpinning proportionality assessment
  • Race Discrimination: Judgment against qualifications body held not to be Meek-compliant
  • Harassment: Claimant must be aware of the unwanted conduct in order for it to amount to harassment
  • Holiday Pay: How to calculate holiday pay on termination of employment

 

Religious Discrimination: EAT remits Facebook posts case and sets out principles underpinning proportionality assessment

In Higgs v Farmor’s School [2023] EAT 89, the EAT held that in dismissing a direct religion or belief discrimination claim brought by a Christian employee following complaints relating to her social media posts which criticised the nature of sex education in schools (including gender fluidity and same sex marriage) the employment tribunal had erred in that it failed to:

  • conclude that there was a close or direct nexus between the employee’s Facebook posts and her protected beliefs
  • determine the reason why the employer acted as it had, and
  • assess whether the employer’s actions were prescribed by law and necessary for the protection of the rights and freedoms of others

The proportionality assessment, which the tribunal had not carried out, was necessary to determine whether the employer’s actions were because of, or related to, the manifestation of the employee’s protected beliefs, or were in fact due to a justified objection to the manner of that manifestation.

The EAT also set out basic principles that underpin the approach adopted when assessing proportionality of any interference with rights to freedom of religion and freedom of expression to assist tribunals and to better inform employers and employees as to where they stand on issues arising from the manifestation of religious or other philosophical beliefs.

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Race Discrimination: Judgment against qualifications body held not to be Meek-compliant

The case of General Medical Council v Karim [2023] EAT 87 concerned a claimant doctor who was subject to an investigation by his employer. That led to a referral to the General Medical Council (GMC). The employment side of things was settled when he resigned and a settlement agreement was entered into. However the GMC matter continued. The claimant then made a claim of discrimination by the GMC as a qualifications body, making various complaints in relation to its handling of the matter.

The employment tribunal upheld some (but not all) of the complaints of direct race discrimination on the basis that the burden of proof had passed but not been satisfied.

The GMC appealed to the EAT.

Allowing the GMC’s appeal, the EAT held, in summary, that the tribunal had failed to engage with key aspects of its case, and so produced a decision which was not Meek-compliant; and reached some findings and conclusions at different points that were conflicting or contradictory.

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Harassment: Claimant must be aware of the unwanted conduct in order for it to amount to harassment

In Greasley-Adams v Royal Mail Group Ltd [2023] EAT 86 the EAT had to consider (amongst other grounds of appeal) whether an employment tribunal had failed in its analysis of the claimant’s claims of harassment under section 26 of the Equality Act 2020 by not having regard to conduct of which he was not aware.

The EAT, dismissing the appeal, held that only conduct of which the claimant was aware could amount to harassment. This was because:

  • the perception of the person claiming harassment was a key and indeed mandatory component in determining whether harassment had occurred
  • as confirmed by the relevant authorities, if there was no awareness, there could be no perception.

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Holiday Pay: How to calculate holiday pay on termination of employment

In Connor v Chief Constable of West Yorkshire Police [2023] EAT 42 the EAT considered the provisions of a ‘relevant agreement’ reached in relation to holiday pay on termination of employment and how these compared to the calculations provided for by the Working Time Regulations 1998 (‘WTR’) and found it not to be compatible.

In this case the Claimant’s employment contract stated that holiday pay on termination of employment would be calculated based on 1/365th annual salary. This meant, on that upon his termination, he received a lower payment for accrued holiday than that which he would have received using the calculation set-out in the WTR.

The tribunal held that the 1/365th calculation was a valid ‘relevant agreement’ under Regulation 14(3) (which states that the amount of holiday pay due on termination of employment is either that which would be prescribed if the formula set out in the WTR were applied or such other sum which is stated to be payable on termination of employment pursuant to a ‘relevant agreement’) and that therefore there had been no unlawful deduction from the claimant’s wages.

The EAT disagreed. They held that a ‘relevant agreement’ under Regulation 14(3) on the payment of holiday on termination of employment cannot result in a payment which is lower than that which would be calculated using the method set out in the WTR. The Claimant was entitled to the higher amount. . Regulation 14 provides a method of calculation for the purposes of regulations 13 and 13A for an incomplete leave year. The entitlement to annual leave, and payment, are not modified by regulation 14. The regulation provides a formula of calculation which promotes the right to annual leave and the attendant payment for holiday. The phrase “such sum as may be provided for the purposes of this regulation in a relevant agreement” refers to any agreement that provides a formula which is in keeping with the rights provided for in the regulations.

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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 – April 2023

  • Employment,

  • 25th April 2023

Employment Law

The devil is in the detail. This month’s case updates include recusing an EAT member for apparent bias to ensure impartiality, upholding a procedural system so that mass litigants could not be removed from an equal pay case, and taking a look at the detail of restrictive covenants, to reduce the effect where it was too fantastical to be valid.

  • Tribunals: EAT lay member recused due to appearance of bias
  • Equal Pay: 700 Sainsbury’s staff to remain in equal pay claim
  • Restrictive Covenants: Is a restrictive covenant still valid if it unintentionally covers “fantastical” areas which were not contemplated, as well as what it set out to do?

Tribunals: EAT lay member recused due to appearance of bias

In Higgs v Farmor’s School and the Archbishops’ Council of the Church of England [2023] EAT 45, the EAT allowed the appellant’s application for the recusal of a lay member from hearing the instant appeal against the respondent. The appellant had filed for an application for the recusal of the lay member, AM, from the hearing of the appeal based on apparent bias. It was alleged that AM’s former position as Assistant General Secretary of the National Education Union (NEU), when that entity was campaigning on matters of educational policy, had publicly expressed clear views, on the opposite side of a heated debate to the position of the appellant. The respondent did not consent to the application for recusal.

The court held, among other things, that a reasonable and well-informed observer would not see AM as an impartial judge for the appeal. Accordingly, applying the test of the fair-minded and informed observer (Porter v Magill), there was an appearance of bias such that the lay member should be recused from hearing the appeal.

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Equal Pay: 700 Sainsbury’s staff to remain in equal pay claim

In Sainsbury’s Supermarkets Ltd v Clark [2023] EWCA Civ 386 the Court of Appeal, Civil Division, dismissed the appeal brought by the appellant, a supermarket company, from a decision which had allowed the respondents’ appeal and reinstated their claims. In 2015 and 2016 a large number of employees working in supermarkets brought equal pay claims against their employers, who included the appellant and other well-known retailers. The case involves two separate but related equal pay claims against Sainsbury’s Supermarkets Ltd and Lloyds. One was brought by women seeking equal pay to male staff and another that would ensure men’s pay does not fall below the women’s if the first claim succeeds.

The claims had generally been brought on a multiple claim form, a type of document expressly permitted by rule 9 of the Employment Tribunals Rules of Procedure. The appellant alleged that the judge had erred in law in interpreting rules 10 and 12 of the Employment Tribunals Rules of Procedure 2013. It added that the employment tribunal should have rejected large numbers of those claims on the grounds that the claim forms did not contain the reference number of a certificate issued by the Advisory, Conciliation, and Arbitration Service relating to early conciliation (EC) of their claims.

The court held, among other things, that the judge’s construction of rule 10 was the correct one. A panel of three judges in the Court of Appeal unanimously ruled that the attempt by Sainsbury’s to remove the majority of claimants in the 865-person lawsuit because their names were not listed in early-stage paperwork was “highly technical” and lacked “any substantive merit”. While a claim form should contain the name and address of each claimant and each respondent, it was sufficient for it to contain the number of an EC certificate on which the name of one of the prospective claimants appeared. There was no suggestion the 700 workers had failed to follow the correct procedure, Lord Justice Bean held.

“It has been repeatedly stated that employment tribunals should do their best not to place artificial barriers in the way of genuine claim”’, Lord Justice Bean wrote. “The complaint is no more and no less than that the employment tribunal claim form did not give the appropriate certificate number”.

Tribunal rules requiring claimants to provide this information are a “preliminary filter” rather than an opportunity to strike out a claim, he added. “I do not accept…that the existence of the certificate should be checked before proceedings can be issued, still less to lay down that if the certificate number was incorrectly entered or omitted the claim is doomed from the star”’, Lord Justice Bean ruled.

Accordingly, the Court upheld the EAT’s decision in the respondents’ favour for a more fundamental reason relating to the structure and wording of the Rules of Procedure.

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Restrictive Covenants: Is a restrictive covenant still valid if it unintentionally covers “fantastical” areas which were not contemplated, as well as what it set out to do?

The Court of Appeal in Boydell v (1) NZP Limited and (2) AI ICE (Luxembourg) Midco S.A.R.L. [2023] EWCA Civ 373, was tasked with considering whether a restrictive covenant that covered what it needed to and what had been contemplated by the parties, but also unintentionally covered other areas (described as “fantastical”) and which had not been contemplated, can it still be valid?

Dr Boydell worked for NZP Ltd, a specialist pharmaceutical business covering a niche area of the pharmaceutical industry described in summary as the development, production and sale of bile acid derivatives for sale to pharmaceutical companies for use by them in their products and is part of the ICE Pharma Group of companies (the second defendant being the ultimate holding company). His contract of employment included a non-competition covenant preventing him from working in any capacity for any competing businesses of either NZP or any of its group companies.

NZP and ICE sought to enforce two sets of restrictive covenants. One set, contained in a variation to the Appellant’s employment contract, ran for one year from the termination of his employment. The other set, contained in a shareholder’s agreement ran for two years. The judge granted an interim injunction enforcing the one year covenants in the employment contract until the trial, with some modifications but refused to enforce the two year restrictions in the shareholder’s agreement (which the companies did not seek to appeal). In doing so, the Judge severed certain parts of the clause, including removing the reference to other group companies. This decision was appealed by NZP who argued that the Judge could not use severance to significantly change the effect of the restraints.

The Court of Appeal disagreed and held that if a clause covers what it needs to and what was contemplated but also unintentionally covers areas which are “fantastical” (Home Counties Dairies Ltd v Skilton) then it may still be valid. If there are two realistic constructions then the court should rely on the one which would result in a valid clause. This meant that, by severing the references to group companies (which were “fantastical”), the Judge had not significantly changed the overall effect of the clause.

Lord Justice Bean (at para.30) said, “The whole burden of the clause is directed to the specialist activities of NZP, which it lists at some length. The judge was entitled, at least at the interim injunction stage, to sever the words from the clause and grant an injunction on a more limited basis. There is a serious question to be tried as to whether other group companies have significant areas of business which are wholly distinct from the activities carried out by NZP. I would, however, refuse Ms Stone’s application for permission to cross-appeal against the judge’s decision to sever the relevant words from clause 3.1.”

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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 – March 2023

  • Employment,

  • 27th March 2023

Employment Law

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

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

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

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

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

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

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

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

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

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Restricted Reporting: Anonymity in hearing cases in the tribunals

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

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

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

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Data Protection: ICO and Easylife reach agreement regarding monetary penalty

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

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Further Information:

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

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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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