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.

Cummins Ltd v Mohammed UKEAT/0039/20

Facts

• The Claimant was employed as a Chief Machinist with the Respondent, a global designer and manufacturer of diesel and alternative fuel engines
• On 11 July 2016, the Claimant was given a final written warning for aggressive behaviour
• On 17 August 2016, the Claimant was diagnosed as suffering from anxiety and depression and began a period of sick leave
• On 31 August 2016, the Claimant visited his General Practitioner and was advised to take a short break for a therapeutic holiday.

Prior to the provision of his witness statement, the Claimant had not contended that he had been given permission to travel to Pakistan during the meeting by Ms Price (although it was suggested at the appeal stage that Mr Hadley had given the Claimant permission to travel).

The Claimant attended an appointment with Dr Cassidy of Occupational Health on 15 September 2016. It was the Respondent’s case that, during the consultation, the Claimant was informed that he was fit to return to work, even though he was still subject to a sick note that lasted until the end of the month.

The Claimant brought claims of disability discrimination and unfair dismissal. The tribunal upheld the Claimant’s claim that the dismissal amounted to discrimination because of something arising in consequence of his disability. His employer appealed.

Decision

The Employment Appeal Tribunal (EAT) upheld the appeal, and remitted the case to be reheard by a new tribunal  to consider why the decision-maker acted as they did. In this case, the tribunal had failed to grapple with the decision-maker’s reasoning. The Tribunal had stated that the ‘something’ arising from his disability was the trip to Pakistan. The decision didn’t address what part the disputed permission or fitness to work played.

In relation to his unfair dismissal claim, the EAT also held that the tribunal had substituted its decision for that of the employer as they had failed to properly address the actual misconduct that the Claimant had been accused of.

Matthew and others v Sedman and others [2021] UKSC 19

The Supreme Court ruled that, in midnight deadline cases, the day following the expiration of the deadline should be included when calculating the limitation period.

Facts

The appeal related to the calculation of the limitation period in respect of a cause of action which accrued at, or on the expiry of, the midnight hour at the end of 2 June 2011. The issue was whether 3 June 2011 counted towards the calculation of the six-year limitation period. The court held that it did, therefore the claim was statute barred.

Decision

The court considered that Gelmini v Moriggia [1913] KB 549 applied and was correctly decided. Gelmini held that as a cause of action could be brought throughout the day following the expiry of the midnight deadline, that day should be included for limitation purposes. This was an exception to the general rule that where a cause of action accrues part-way through a day, that day is excluded for limitation purposes.

The court explained the reason for the general rule is that the law rejects a fraction of a day, to prevent part of it being counted as a whole day for the purposes of limitation, thereby prejudicing the Claimant and interfering with the time periods in the Limitation Act 1980.

However, in a midnight deadline case, even if the cause of action accrued at the very start of the day following midnight, that day was, for practical purposes, a complete undivided day. There is no fraction of a day.

Further, excluding a full undivided day in a midnight deadline case from the calculation of time would give the Claimant the benefit of a limitation period of six years and one complete day. Accordingly, it should be included in the calculation of the limitation period.

Khatun v Winn Solicitors Ltd ET/2501492/2020

An Employment Tribunal has found that a solicitor had been unfairly dismissed for refusing to agree to changes to her employment contract that would have given the employer the freedom to unilaterally reduce her pay and hours to 80% or place her on furlough. The dismissal was unfair because of a lack of meaningful consultation and failure to reasonably consider alternatives to dismissal.

Facts

Following a downturn in work at the start of the Covid-19 pandemic, a firm of solicitors decided to place around half of its staff on furlough and require the remaining staff to cover the cases of the furloughed staff. The claimant, Ms Khatun, was one of the solicitors selected to continue working.

On Monday 23 March 2020 (shortly before the UK government announced the first coronavirus lockdown), Ms Khatun’s head of department met and told her about the firm’s plans. He said that everyone would need to agree variations to their contracts, which were non-negotiable, or face likely dismissal.

The following day, the HR director emailed the contract variation to all staff, instructing them to sign and return it within 24 hours – or face likely dismissal. The Claimant replied saying she was unwilling to agree to the variation, as she was continuing to perform the job she had been contracted to do (and more). Additionally, Ms Khatun stated that if she were to be furloughed or any other unexpected situation were to arise, she would consider variation at that point.

The head of department then made a five-minute telephone call to Ms Khatun, in which she repeated her offer to consider variation, should the need arise in future. However, he simply re-iterated the firm’s position that the changes were non-negotiable and that she would be dismissed if she did not agree.

Ms Khatun’s remote IT access was revoked at 2pm that day. When she queried this with the IT helpdesk, she was directed to contact her head of department, who informed her of her immediate dismissal. The Claimant brought a claim for unfair dismissal.

Decision

The tribunal found that the Claimant had been unfairly dismissed. It accepted that the firm had “sound, good business reasons” for the variation, and therefore had the potentially fair “some other substantial reason” for dismissing an employee who would not agree to it.

However, the tribunal considered the dismissal unfair in the circumstances of this case, due to lack of consultation and failure to reasonably consider solutions other than dismissal.

The firm’s directors had decided at the outset that the new terms were non-negotiable and that anyone refusing to sign would be dismissed. The Claimant’s attempts to discuss the matter had not resulted in any meaningful discussion, simply a re-stating of the firm’s position. The firm had acted too quickly in dismissing the Ms Khatun only two days after sending her the new terms. It had also failed to offer any right of appeal, which might have provided an opportunity for both sides to cool off and reach an agreement.

Mercer v Alternative Future Group Ltd and another (Secretary of State for Business, Energy and Industrial Strategy intervening) UKEAT/0196/20

The EAT has held that a lack of protection from detriment for having participated in strike action under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, was a breach of Article 11 of the European Convention on Human Rights and that such protection should therefore be read into section 146.

Facts

Mrs Mercer has been employed by Alternative Future Group Ltd (the employer) since 2009. At the time of the events, she was its Acting Chief Executive and a workplace representative for the trade union, Unison.

In early 2019, Unison called a series of strikes to take place between 2 March and 14 May. Mrs Mercer was involved in planning and organising these strikes. She took part in some media interviews related to the strikes and indicated an intention to participate in the strikes herself.

On 26 March 2019, Mrs Mercer was suspended by the employer for nearly two weeks and subsequently disciplined. She was issued with a first written warning for abandoning her shift on 26 April 2019.

Mrs Mercer issued a claim in the Employment Tribunal on the basis that she had been subjected to a detriment (namely, suspension and disciplinary action) for participating in the activities of a trade union contrary to section 146 of TULRCA 1992. She contended that the “activities of a trade union” under section 146 included participating in industrial action. The employer resisted the claim on the basis that the suspension and disciplinary action were unconnected to trade union activities, and that taking part in industrial action was not an activity protected by section 146.

The employment tribunal found that, under domestic law, “trade union activities” under section 146 excluded participation in a strike. Employers were not therefore prevented under TULRCA 1992 from subjecting employees to a detriment short of dismissal for participating in strike action. This exclusion was a breach of the right to freedom of association under Article 11 of the European Convention on Human Rights. However, it was not possible to read section 146 in a way that was compatible with Article 11, since this would “go against the grain” of TULRCA 1992. The Claimant appealed.

Decision

The EAT agreed with the tribunal that the exclusion of industrial action from section 146 was a breach of Article 11. This exclusion struck at the very substance of the Article 11 right. The breach was not justified, since the exclusion served no objective. It was not necessary to relieve employers of the obligation to pay striking employees, as it was already clear that employers were under no such legal obligation. Further, it would be directly contrary to authorities emanating from the European Court of Human Rights to permit disciplinary action against employees for exercising the right to strike.

However, the EAT held that the tribunal had erred in finding that it was not possible to read section 146 in a way that complied with Article 11. This was possible. It did not go against the grain of TULRCA 1992, since there was nothing in the legislative history to suggest that the aim of the legislation was to exclude protection against detriment for those participating in industrial action.

Further, the wording of section 146 did not unequivocally exclude industrial action and therefore was amenable to interpretation in a way that was compatible with Article 11.

Forstater v CGD Europe & Ors

The EAT has held that a belief there are only two biological sexes in human beings, and that it is impossible for a human being literally to change sex, can amount to a ‘philosophical belief’ within the meaning of s10 Equality Act 2010.

Facts

Ms Forstater worked for CGD. In 2018, she became engaged in the debate about proposed reforms to the Gender Recognition Act. Complaints were raised with CGD that some of her tweets were ‘transphobic’. Her contract was not renewed, and she complained of discrimination on grounds of belief.

Considering the fifth of the ‘Grainger criteria’ (which determine whether a belief is protected under s10 EqA) the judge found that Ms Forstater’s belief necessarily involved “misgendering” and was incompatible with human dignity and the fundamental rights of others.

The Employment Appeal Tribunal disagreed. The evidence was that Ms Forstater’s belief is widely shared, and consistent with the law. The tribunal was wrong to assume that her belief meant she would always ‘misgender’ trans persons, irrespective of circumstances; her position was more nuanced than that. Her belief passed the ‘Grainger V’ test, and the EAT, when explaining the scope of Grainger V, stated:

“79. In our judgment, it is important that in applying Grainger V, Tribunals bear in mind that it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted under Article 9(2) or Article 10(2) as the case may be.”

The EAT emphasised that its judgment did not mean that it was taking sides in ‘the transgender debate’, or that any of the existing protections for people with the protected characteristic of gender reassignment under the EqA were in any way undermined.

Somerville v Nursing & Midwifery Council

The EAT has held that there is not always a requirement for a minimum degree of obligation or commitment required for an individual to be a worker.

The Claimant, who sat as a panel member for the regulatory body the Nursing & Midwifery Council on its Fitness to Practice panels, brought a claim for unpaid statutory holiday pay.

The tribunal held that although he was not obliged to sit for a minimum number of sessions and he could withdraw from any dates he had accepted (in other words, there was ‘no irreducible minimum of obligation’), he was a worker. The NMC appealed that finding on the basis that this irreducible minimum was a prerequisite for worker status.

The EAT rejected the appeal. There were a series of individual contracts each time he sat on a panel, and an overarching agreement for the provision of his services. Therefore, there was a contract in place in between any sittings. Following a thorough review of the authorities, including the Supreme Court’s decision in Uber, it was held that this irreducible minimum of obligation was not essential for worker status, it could be relevant to cases where it was disputed that there was a contract at all, or if it was alleged that there was a customer or client relationship.

This case will be relevant in relation to zero hours or casual contracts.