Our legal team has come together to compile a rundown of employment law cases – including the background and decisions made – that HR and employee relations (ER) professionals should be aware of.
Slade and another v Biggs and others: EAT/000687/19 & EAT/000722/19
Facts:
Biggs and Steward were employed by the Respondent. In 2017 they both became pregnant. The Respondent found this ‘highly inconvenient’ and decided to engineer their departure from their employment by failing to pay Statutory Maternity Pay (SMP), ignoring grievances and conducting a spurious TUPE transfer.
Biggs resigned and claimed constructive dismissal, and Stewart was dismissed for gross misconduct whilst recovering from the premature birth of her child. The tribunal described the disciplinary process as having been “entirely spurious and vindictive” and commented that her suspension and dismissal was “one of the most egregious acts of discrimination possible”.
The Employment Tribunal (ET) found both Claimant’s claims to be successful. It made compensatory awards which included the maximum 25% uplift for breach of the ACAS Code of Practice on Disciplinary and Grievance Procedures. It also made awards for injury to feelings, with £5,000 aggravated damages each. These awards were then uplifted by 25% to reflect breach of the ACAS Code.
Held:
The Employment Appeal Tribunal (EAT) dismissed the appeals and upheld that the tribunal had been entitled to apply the 25% ACAS uplift to the awards for aggravated damages and injury to feelings, given its findings of serious pregnancy discrimination. It suggested that, in future, tribunals may choose to apply a four-stage test when considering the effect of a failure to comply with the ACAS Code. This test is:
- Is the case such as to make it just and equitable to award any ACAS uplift?
- If so, what does the tribunal consider a just and equitable percentage, which must not exceed 25%, though it can equal 25%?
- Does the uplift overlap, or potentially overlap, with other awards? If so, what is the appropriate adjustment, if any, to the percentage of those awards to avoid double counting?
- Applying a final sense check considering whether the sum of money represented by the application of the percentage uplift is disproportionate in absolute terms and, if so, what further adjustment should be made?
This case also clarifies that awards for injury to feelings and for aggravated damages are taxable, and the tribunal should, therefore, gross up the awards to take account of taxation.
Chell v Tarmac Cement and Lime Ltd [2022] EWCA Civ 7
Facts:
The Claimant worked on a site operated by the Respondent. He was employed by Roltec Engineering Ltd, which was providing services to the Respondent. One of the Respondent’s employees deliberately hit pellet targets with a hammer very close to the Claimant’s ear, apparently as a joke, and the subsequent explosion caused him noise induced hearing loss and tinnitus.
The Claimant brought a personal injury claim against the Respondent, arguing that it was vicariously liable for its employee’s actions, and directly liable for breaching its own duty of care, and failing to provide a safe working environment. That claim and a subsequent appeal failed, and the Claimant appealed to the Court of Appeal (COA).
Held:
The appeal was dismissed. The COA confirmed that the correct approach was to ask whether an employee was acting in the course of their employment when they carried out the act (complained of). This depends on whether their conduct is so closely connected with acts that they were authorised to do that it is fair and proper, with regards to the conduct as done in the ordinary course of employment.
The COA confirmed the Respondent was not directly or vicariously liable for personal injury from a practical joke gone wrong. Among other things, the real cause of the Claimant’s injuries was the explosive pellet, which was not the Respondent’s equipment and not used in the employee’s work. It could not be said that the Respondent authorised what the employee did, nor was his act an unlawful mode of doing something authorised by them. The wrongful acts were not done in the course of employment.
Regarding breach of duty of care, there was no reasonably foreseeable risk of injury arising from the prank and any reported tension did not suggest potential violence. Even if such a risk of injury had been established, it would be unreasonable and unrealistic to expect an employer to have in place a system to ensure employees refrained from horseplay. Employees were expected to carry out their tasks using reasonable skill and care, and by implication to refrain from horseplay. Common sense decreed that horseplay was inappropriate at a working site.
Secretary of State for Justice v Johnson [2022]: EAT 1
Facts:
The Claimant was a prison officer who, in 2013, attended the scene of a brutal murder in the prison. The Claimant said the sights he saw would haunt him for the rest of his life. He claimed that the Respondent had compelled him to complete an ill-health retirement assessment application when he emphatically expressed the fact that he did not want a medical retirement.
He won his claim of harassment at the ET. The Respondent appealed against the determination of the ET that the claimant had been subject to harassment and that the complaint had been submitted within time.
Held:
The EAT allowed the appeal. The ET had erred in law in failing to make specific findings about the conduct on the part of the Respondent that constituted the harassment and, if it extended beyond 20 February 2013 (the date on which the Claimant submitted an application for ill health retirement) to no later than September 2020 (the date by which it was accepted any conduct was no longer unwanted), what specific conduct on the part of the Respondent occurred and when the period over which it extended ended.
They held that a tribunal should consider delay after the submission of the ET1 when deciding if it is just and equitable to extend time. The EAT held that the tribunal should have considered the effect that extending the time limit would have on the Respondent’s ability to defend the claim, including the fact that it would result in the tribunal having to make determinations about matters that had occurred many years prior to the hearing.
Allette v Scarsdale Grange Nursing Home Limited: ET/1803699/21
Facts:
The Respondent made it mandatory for their staff to be vaccinated. This was at a time when the UK had just gone back into the second lockdown, case numbers were extremely high, and the vaccine programme was being rolled out for those people who worked in care homes and healthcare settings as well as the vulnerable.
The Claimant refused to have the vaccine. Her initial explanation was that she mistrusted the vaccine, its effectiveness and its safety. She believed it was a conspiracy. She later claimed that she would not have the vaccine due to her religious beliefs – she is Rastafarian and only believes in using herbal remedies. The Respondent did not accept this explanation as it was not the one she had given when she was first asked. They suspected that she had made up this explanation to claim discrimination.
The Claimant was dismissed for refusing a reasonable management instruction to be vaccinated and brought a claim for unfair dismissal and wrongful dismissal. It is important to note the Claimant’s dismissal pre-dated the compulsory vaccination regulations in force from November 2021.
Held:
The ET held that it is fair to dismiss for refusing to be vaccinated against COVID-19. It held that the Respondent had a legitimate aim when instructing employees to get vaccinated and for dismissing the Claimant who refused to comply, namely to protect the health and safety of residents, staff and visitors. It also stated that her reason was her fear of and scepticism about the vaccine and unsubstantiated belief that there was a conspiracy, rather than a religious belief.
Whilst there was interference with the Claimant’s Article 8 Convention right (right to respect for her private life) in requiring her to have the vaccine, this was justified in the circumstances as the particular circumstances of this care home meant that the Article 8 rights of the residents and other staff and visitors were unjustly interfered with by the presence of the Claimant. The Respondent acted within the range of reasonable responses and dismissal was proportionate.
Best v Embark on Raw Ltd (Case Number: 3202006/2020)
Facts:
The Claimant, aged 52, worked as a sales assistant for the Respondent. She was employed on a ‘zero hours’ contract’ although it was not disputed that she regularly worked full time hours every week. The Claimant raised concerns that her colleagues weren’t taking COVID-19 measures seriously which put her health, and that of others, at risk.
In March 2020, a customer had been describing a ‘hot flush’. During a conversation between the staff afterwards Ms Best put her hands over her eyes and said, “I am having none of that, I don’t even want to hear about it… I don’t want to know and it’s not coming into mine and [my husband’s] little bubble.”
Despite making it clear she didn’t want to discuss the issue, her male boss (Mr Fletcher), continued to talk about the subject and directly asked her if she was menopausal.
On another occasion, Mr Fletcher read out a newspaper article about COVID-19 which indicated that medical staff may have to ‘play God’ and prioritise ventilating younger and fitter people because ‘they are more likely to survive’.
Ms Best complained to Mr Fletcher’s wife (who co-owned the business) about the comments he had made about the menopause. She was given little sympathy and was told that she had to stop moaning and trying to blame people. She then received a verbal warning and was dismissed a couple of weeks later.
The Claimant was dismissed for what the Respondent claimed was rude and confrontational behaviour with colleagues. The Claimant however alleged it was because she had raised protected disclosures about the safety of her workplace. She brought a number of claims. She argued that asking her if she was menopausal was an unwanted comment which violated her dignity and created a humiliating environment for her at work. She also alleged that the comment about the ventilator implied she wasn’t one of the ‘younger and fitter people’ and also constituted harassment.
Held:
The ET held that both comments amounted to harassment, because of the Claimant’s age and sex, stating they were two one-off acts of harassment of a relatively minor nature. As they were relevant to the Claimant’s protected characteristic of age and sex, her harassment claims succeeded. It held that menopause is not a protected characteristic and women bringing claims have to argue them within the framework of the Equality Act 2010. This decision also provides a useful reminder that an employee can bring a harassment claim even for a one-off incident or comment.
Parr v MSR Partners LLP and others [2022] EWCA Civ 24
Facts:
The Claimant joined the Respondent, an accountancy firm, in 1982. He was promoted to salaried partner in 1988 and became an equity partner in 1995. The Claimant’s ‘normal retirement date’ was 30 April 2018. Several months before this, the Claimant proposed that he should continue with the firm and not retire, on the basis that there was a business case for him to do so.
The Respondent decided that he could be permitted to remain as a member of the LLP for two years beyond his normal retirement date, but not as an equity partner. A deed was drawn up to this effect. The Claimant was dissatisfied at not being offered a further period as an equity partner.
However, he took the view that the difference between his earnings as an Equity Partner and his future earnings as an ordinary Partner was not so significant as to cause him to take legal advice on his position.
At around the time that the De-Equitisation Agreement was entered into, he believed that his loss would be a reduction in income of the order of £31,000 in the subsequent financial year. He considered, with that figure in mind, that any legal action he might take would cost a considerable amount of money in legal fees in comparison to the possible benefit from it.
When the Claimant’s status was changed to ordinary partner in April 2018, he was repaid the capital sum which he had invested in the business. After that he was not required to make any further capital contributions and did not have the potential liabilities that he would have had as an Equity Partner. He accepted in his evidence to the ET that he knew the effect of the De-Equitisation Agreement was that he would also lose any right to distribution of capital profits.
In September of the same year, the claimant learnt that the Respondent was planning to sell parts of its business. This was not something of which he had been aware when he entered into the De-Equitisation Agreement in October 2017. The Respondent asserted that they had made the decision to sell those parts of the business on 14 February 2018, that is to say several months after the Claimant’s De-Equitisation Agreement.
In December 2018, the Claimant raised the issue of whether he would benefit from the proceeds of the forthcoming disposal of the First Respondent’s business, believing (unrealistically, as the ET found) that he would receive a share despite having ceased to be an Equity Partner as a consequence of the De-Equitisation Agreement. He was told that he would not do so. The Claimant’s case is that had he remained an Equity Partner his share of the proceeds would have been almost £3 million. Hence his issue of the ET claim in January 2019.
In January 2019 the Claimant brought employment tribunal proceedings alleging direct age discrimination by the Respondents. An issue was raised as to whether the claim had been issued in time. At a Preliminary Hearing in the ET, it was determined that the Respondents’ acts complained of amounted to “conduct extending over a period” within the terms of s123(3)(a) of the Equality Act 2010 and that the claim had therefore been issued in time.
The Respondents appealed to the EAT who held that there had been no “conduct extending over a period” beyond 30 April 2018 and that the claim was therefore out of time. He allowed the Respondents’ appeal, set aside the finding of the ET, and remitted the claim to the ET to determine whether to extend time for the presentation of the claim form on what is generally known as the “just and equitable” ground. The judge granted the Claimant permission to appeal to COA.
Held:
The question of whether the discrimination claim was presented out of time turned on whether the act of De-Equitisation as an alternative to compulsory retirement, was a one-off act with continuing financial consequences, or a continuing act. The COA upheld the EAT’s decision confirming that the “demotion” was a one-off act, albeit one with continuing financial consequences.
The CoA highlighted that, had the Claimant been dismissed, rather than demoted, then his dismissal would have been a one-off act with continuing consequences; there was “no logical reason” why a demotion should be treated any differently simply because the Claimant and Respondent remained in a contractual relationship. Permission to appeal to the SC was refused.
This case provides helpful clarification of the distinction between one-off and continuing acts.
Smith v Pimlico Plumbers Ltd [2022] EWCA Civ 70
Facts:
The Claimant worked for the Respondent in what was originally described in his contract as “an independent contractor of the Company, in business on your own account”. The Claimant sought repayment of the four weeks’ leave required by the Working Time Directive carried over each year until he stopped working for the Respondent. The Claimant had taken no steps to invoke the right to payment until after his contract was terminated by the Respondent. The Respondent disputed the Claimant’s entitlement to paid leave.
The SC upheld that he was a worker, and the Respondent now accepts that the Claimant was entitled to paid annual leave but argued that the Claimant acted too late to enforce his rights. The Claimant argues that he was owed payment for the leave taken but not paid for. The ET dismissed the Claimant’s claim for backdated holiday pay, which was upheld by the EAT.
Held:
The Claimant’s appeal succeeded. COA held that a worker can carry over leave that has been taken, but not paid, because an employer did not realise they were a worker. They only lose the right to paid annual leave where they have had the opportunity to take paid annual leave, have been encouraged to take paid annual leave by the employer, and be told by the employer that the right would be lose at the end of the year. If this does not happen, then right accumulates until termination of the contract, at which point the employee is entitled to a payment in respect of the untaken leave.
Liverpool Heart & Chest Hospital NHS Foundation Trust v Poullis [2022] EAT 9
Facts:
The Claimant was employed by the Respondent as a cardiothoracic surgeon from 1999 until his summary dismissal by letter on 18 October 2019. The Claimant brought claims that he had been wrongfully and unfairly dismissed, including that the dismissal was automatically unfair being for the reason, or principal reason, that he had made protected disclosures. He also asserted that he had been subject to detriments done on the ground that he had made protected disclosures. The Respondent asserted in its response that the Claimant was dismissed for admitted improper completion of documentation
The grounds of claim appended to the claim form set out the basis of the claims in a manner that should have allowed the matter to be brought to trial without requiring an abnormal amount of case management, particularly having regard to the relatively straightforward nature of the Respondent’s primary defence.
The Respondent requested further information contending it was required to clarify the claim. At an earlier PH, the EJ decided to list a further Preliminary Hearing to consider various potential applications, including one for a Deposit Order. The Claimant subsequently sought to amend his claim and a further hearing, in front of a different Employment Judge, allowed some of the amendments. It was also decided that a Preliminary Hearing to consider making a Deposit Order was no longer appropriate as there was no prospect of a Deposit Order being made.
The EJ at PH refused to fix a PH to consider the Respondent’s application for a deposit order sought on the basis that the Claimant’s claims had little reasonable prospect of success. The Respondent appealed this.
Held:
The EAT held that the discretion of a tribunal to vary case management orders was limited in that the exercise of the power will generally require a material change of circumstances. The tribunal had not identified a material change of circumstances that would allow the decision to ‘cancel’ the listing of a Preliminary Hearing to consider a Deposit Order application.
The amendment to the claim was not a material change as the tribunal itself had made the point that it had introduced no new claims and the legal basis of the claims remained the same. The EAT also said that the Respondent should have had an opportunity to make submissions before the employment tribunal made the decision, rather than merely having an opportunity to try to push back against a decision that had already been made.
Johnson v Transopco UK Ltd [2022] EAT 6
Facts:
From 2014 the Claimant worked full-time on his own account as a black cab driver in London, before registering as a driver on the MyTaxi app in February 2017. Apart from the odd trip in April he did not start to actively use it until around the end of July 2017.
Between April 2017 and April 2018 he completed 282 trips via the app at a total value of £4,560.48. In the same period, he earned £30,472.45 as a self-employed driver through other sources. He made no trips using it after 18 April 2018 when he was removed from it. Throughout that period, he continued to source work away from the app as a self-employed black-cab driver.
The Claimant brought tribunal claims of failure to pay national minimum wage, unlawful deduction from wages, working-time holiday pay, and detrimental treatment from whistleblowing. These claims depended on him having been a worker of the Respondent. The ET found that the Claimant was not a worker.
The Respondent and the Claimant contracted with each other as two businesses and the Respondent was essentially a client or customer of the Claimant’s taxi-driving business. The Claimant could provide his services as often or as little as he wanted, he could dictate the timing of his services, and he was not under control by the Respondent as to how those services were undertaken. The Claimant appealed this decision.
Held:
The EAT upheld the ET decision that a taxi driver working through an app was not a worker. It held the ET was entitled to rely upon its finding and concluded that its findings were soundly and thoughtfully reasoned.
Abellio East Midlands Ltd v Thomas [2022] EAT 20
Facts:
The Claimant was employed by the Respondent as Area Manager for Leicester. He agreed to move to a new position as area manager for Nottingham and was told that he would receive an increased salary to reflect the greater responsibilities in that role. The Claimant and Respondent failed to agree the increased salary and his employment was eventually terminated.
The ET decided that the Claimant was entitled to a remedy in unjust enrichment, a quantum meruit payment, for the work he did in the ‘entirely different’ position in Nottingham. It decided that he should have been paid an increased salary while in that position, and such a claim could be brought as an unlawful deduction from wages claim under Part II of the ERA. The Respondent appealed.
Held:
The EAT disagreed with this, stating that an unjust enrichment claim for a quantum meruit could not be brought under Part II of the ERA. A quantum meruit could only be brought in respect of additional work which went beyond the scope of the existing contract. Moreover, claims for quantum meruit would, with difficulty, fit with the structure of a claim for unlawful deductions from wages. The Respondent’s appeal was therefore allowed.
Citizens Advice Merton and Lambeth Ltd v Mefful [2022] EAT 11
Facts:
The Claimant was employed by the Respondent as a specialist service manager from 19 January 2004 to 15 August 2012 when he was dismissed, ostensibly by reason of redundancy. The Claimant brought proceedings on the basis that at grievance hearing he had told the Respondent that he was being bullied and sexually harassed by his line manager, and that this was a protected disclosure. He alleged the dismissal decision was automatically unfair, as well as disability discrimination and victimisation.
The ET found that the decision to dismiss the Claimant had been taken (without his knowledge) on 19th March 2012, that the Claimant lacked capability and engagement, it was a ‘done deal’ and everything after that date in the redundancy process had been a sham. The Claimant became disabled in April 2012, and the ET held that the dismissal was tainted by disability discrimination, relying on incidents from April 2012 onwards. Therefore, it was found that the Claimant was unfairly dismissed and subject to unlawful disability discrimination. The Respondent appealed.
Held:
The EAT held that it was wrong for the ET to consider events after a decision to dismiss when considering an unfair dismissal claim. Therefore, in this case, the disability could not have affected the reason for dismissal and the EAT held that the finding of disability discrimination should be set aside and revoked. The case was remitted back to the ET.
