UK employment law cases spotlight – August 2021

31 Aug 21 by esphr
UK employment law cases

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.

IX v WABE & MH Muller v MJ (2021) C-804/18 and C-341/19

Facts

Two cases were brought in the German Labour Courts regarding policies “prohibiting employees from displaying, in a manner visible to parents, children or third parties, any signs of political, philosophical or religious beliefs.”

The two Claimants had a policy enforced against them by their employer for wearing an Islamic headscarf. One of the employers in the action produced evidence that they applied the same policy to an employee wearing a cross around her neck. The domestic courts referred this question to the Court of Justice of the European (CJEU).

Held

The CJEU found that such a policy was not discriminatory. Such a policy was “neutral” and applied uniformly to all employees in a general and unconditional manner. Even if this caused inconvenience for the employee, there was no difference in treatment based on religion or belief as opposed to other employees.

In so far as indirect discrimination was concerned, the CJEU added that such a policy could be justified where the policy could be demonstrated as meeting a “genuine need”. The difference in treatment is appropriate for achieving a policy of neutrality being applied, ensuring a consistent approach and that the policy is limited to what is strictly necessary having regard to “the actual scale and severity of the adverse consequences that the employer is seeking to avoid by adopting that prohibition.”

However, uniformity of application was important. The CJEU added a policy that banned conspicuous manifestations of belief, but not subtle manifestations, would likely be direct discrimination and, therefore, not justifiable.

L v K [2021] CSIH 35

Facts

The Claimant was employed as a teacher. He was arrested and charged with possession of a computer containing indecent images of children following enquiries made by the police of an IP address linked to such images. His son, who also lived with him, was also charged with the same offence. Ultimately, no criminal proceedings were brought against either of them.

The Claimant informed the headmaster of the school where he was employed. Disciplinary proceedings were initiated. The Claimant confirmed that a computer in his house contained indecent images but that he did not know how this happened. He confirmed that his son and his friends had access to the computer. The view of the head of HR at the end of the hearing was that it could not be concluded that the Claimant had not been involved which gave rise to safeguarding concerns and reputational risk. A formal risk assessment concluded that he was a risk to children. He was dismissed.

The Claimant brought a claim for unfair dismissal on the basis that there was not a fair reason for dismissal and whether the decision to dismiss was within the band of reasonable responses. The Tribunal concluded that, in the context of the criminal charge and the lack of dispute over the images means that the test for “some other substantial reason” had been met and that while the decision was difficult, it fell within the band of reasonable responses.

The case was appealed to the Employment Appeal Tribunal (EAT). The Claimant was successful on the basis that the invitation to the dismissal hearing did not include that reputational risk was a ground for dismissal and rendered the dismissal unfair. The EAT understood that the reason for dismissal was misconduct and that given this could not be proved, the misconduct should not have been taken into account. He could only be fairly dismissed if the evidence indicated so, and the employer is satisfied that he was responsible. The employer appealed.

Held

The Court of Session held that the EAT had erred in its categorisation of the reason for dismissal and interfered incorrectly with the Tribunal's decision. On the reason for dismissal, the Court concluded that the Tribunal had made clear that the reason for dismissal was ‘Some Other Substantial Reason’ (SOSR) and that this was genuine and substantial.

Properly understood, the SOSR did not include a belief of responsibility for the alleged offence, but that due to the real possibility that the Claimant was an offender and could not place the necessary trust and confidence in the Claimant.

Having found that this was the reason for dismissal, the Court concluded this was within the range of reasonable responses. It was not the Court's role to re-argue the case and while this approach risks “serious injustice to an employee”, the role of the Court was to decide whether the decision to dismiss was unreasonable.

The Court decided that the decision to dismiss was within the band of reasonable responses. While another employer may not have made the decision to dismiss, and while the EAT or Court of Appeal may have taken a different view, the conclusion of the Tribunal was free from legal error.

The Court added that the failing to mention reputational risk in the invitation to the disciplinary hearing did not render the dismissal procedurally unfair. The Claimant was aware he may be dismissed, the complaint was understood by him, the reason for dismissal was identifiable from the invitation letter and highlighted in a report given in advance which mentioned reputational risk. This was also discussed at the hearing. The Court found in any event that reputational risk was not the main reason for dismissal.

Driscoll (née Cobbing) v (1) V & P Global Ltd and (2) Mr F Varela EA-2020-000876

Facts

Ms Driscoll was employed by the First Respondent as an executive agent. She resigned within four months of starting her job. She made a claim that the Second Respondent – the Chief Executive of the First Respondent – made comments which constituted harassment on the grounds of sex, race, or disability. It was also claimed that the Claimant was victimised by the First Respondent, that the Claimant had been constructively dismissed and that this amounted to an act of harassment. This aspect of the claim was struck out and the Claimant was not permitted to amend the list of issues at a full hearing.

The basis for this decision was that as a matter of law, a constructive dismissal could not amount to an act of harassment under Section 26 of the Equality Act 2010. The Tribunal was bound by Timothy James Consulting Ltd v Wilton [2015] IRLR 368 and Urso v Department of Work and Pensions [2017] IRLR 304. The Claimant appealed.

Decision

The EAT allowed the appeal on the basis that Wilton was inconsistent with both European and domestic law and was therefore “manifestly wrong.” The provisions in the Equality Act 2010 that define harassment need to be interpreted purposively to comply with EU directives. Wilton had not done this. Urso had added obiter comments that an actual dismissal could amount to harassment.

The EAT was satisfied that the directives proscribe harassment on the grounds they refer to, including in relation to dismissals. Dismissals had been defined widely by the CJEU, including coverage for voluntary redundancy and compulsory dismissal pursuant to a retirement policy.

The EAT also referred to the case of Meikle v Nottinghamshire County Council [2005] ICR 1 which held that constructive dismissal could amount to a discriminatory act in a disability discrimination claim. The Court of Appeal cautioned against distinguishing between types of dismissal when considering a discrimination claim.

Therefore, constructive dismissal could constitute unwanted conduct for the purposes of a harassment claim and that the constructive dismissal claim should be reinstated and determined at a full hearing.

Secretary of State for Justice v Plaistow UKEAT/0016/20 and UKEAT/0085/20

Facts

The Claimant was a prison officer and was subject to harassment based on his sexual orientation or perceived sexual orientation, and was subject to both physical and verbal abuse, as well as enquiries as to his sexuality. The Claimant was successful in the Tribunal in respect of a number of claims including unfair dismissal, harassment, victimisation and direct discrimination.

The Tribunal awarded compensation under various heads including £41,000 for injury to feelings, £15,000 for aggravated damages and £8,000 for exemplary damages. In respect of financial loss, the Tribunal concluded that, based on the medical evidence, loss should be considered career-long. As such he was awarded a net salary of £31,000 per annum. A 5% discount was applied by the Tribunal reflecting the likelihood that he may have chosen to leave employment early or that he may return to some form of employment. The Tribunal also awarded a 20% uplift in respect of the Respondent's failure to follow the ACAS code in respect of the Claimant's dismissal in this case which was ostensibly for gross misconduct.

The Tribunal concluded that the result of the dismissal process had been predetermined, that the investigatory and dismissal process had been flawed in the dissemination of information, and the use of oppressive questioning and failure to adhere to timescales. There has also been a failure to follow the correct grievance procedure. The Respondent appealed to the EAT to challenge the award of career long losses, the 5% reduction and 20% uplift.

Held

The EAT allowed the appeal in part. The EAT rejected the challenge to career-long losses as the Tribunal was entitled to find that the Claimant's mental conditions would be life-long, and that it was unlikely that he would return to work before retirement. The Tribunal was correct to look at what was likely to happen rather than an assessment on the balance of probabilities. The Tribunal was entitled to prefer the Claimant's expert evidence over the Respondent's expert evidence.

The EAT accepted, on a limited basis, the appeal on the 5% discount. The Tribunal was entitled to conclude that ordinarily, the Claimant would not have left the prison service. However, the Tribunal had not considered other potential factors such as the possibilities that could have shortened his career – such as early death or disability.

The EAT found that the Tribunal had erred in its application of the 20% uplift. The Tribunal had not considered the absolute financial value of the award it was making. Given that the total, likely award would be over £2 million. There was evidence of careful consideration for the aggravated and exemplary damages, but the EAT was not confident that the Tribunal had undertaken a careful assessment in considering the percentage update.

The questions of discount and uplift were remitted to the Tribunal.

Royal Mail Group v Efobi [2021] UKSC 33

Facts

The Claimant had worked as a postman for the Respondent. He was born in Nigeria and has qualifications in computing. He wanted a more senior position with the Respondent. Over four years, he applied unsuccessfully for over 30 jobs. The Claimant brought claims of discrimination and indirect discrimination on the basis of his race against the Respondent and made allegations of racial harassment and victimisation.

The ET rejected the discrimination claims on the basis that there was not enough evidence to establish the claims. This disclosure had not been sought from the Respondent and the Respondent did not offer this information. The Tribunal did not draw and adverse inference about the recruitment process and so the Claimant had not discharged the burden of proof required under s136 of the Equality Act 2010 which would allow a Tribunal, absent any explanation, that discrimination had occurred. The Claimant appealed to the EAT on the basis that the Tribunal had erred in its interpretation of s136 and that the Tribunal ought to have drawn inferences from the Respondent's failure to call witnesses.

The EAT allowed the appeal holding that the burden was not on the Claimant to prove the discrimination, but that the Tribunal should consider all the facts in the claim, including a failure to adduce evidence. This decision was reversed by the Court of Appeal, essentially restoring the Tribunal's reasoning, holding that the onus was on the Claimant to adduce information necessary for the claim to be prima facie successful.

The Respondent was not required to solve the Claimant's evidential problems, so it was not correct to draw adverse inferences from this. The Claimant appealed to the Supreme Court.

Decision

The Supreme Court dismissed the appeal. Section 136 of the Equality Act 2010 was not meant to change the burden of proof, but merely clarified that evidence could be considered from all sources, not just the Claimant when considering if a prima facie case of discrimination exists. The burden remains on the Claimant.

On adverse inferences, the Supreme Court added that tribunals were free to draw inferences they saw fit depending on the context and circumstances. The Tribunal could have drawn inferences from the lack of Respondent witnesses but chose not to. The Supreme Court also added that there was nothing in s136 that prevented a Respondent, after hearing the Claimant's evidence, to submit that there was no case to answer.

It is not required to hear the Respondent's evidence in case it strengthens the claim made. It would be unlikely to be safe to conclude that there was no case to answer after only the Claimant's evidence, but it was not excluded as a possibility.

Martin v City and County of Swansea EA-2020-000460-AT

Facts

The Claimant was engaged by the Respondent as an Equality Engagement Officer. The Claimant was redeployed in various roles when this role was made redundant, and the Claimant had various trial periods in other roles as a result of workplace stress. The Claimant went through a further redeployment process, but no roles were found which were appropriate from the Claimant's or Respondent's perspective.

The Claimant was referred to Occupational Health and then a physician. It was decided, following their reports, that the Claimant was unfit to return to work and she was informed that she would be referred to a final absence review meeting. The Claimant was dismissed on the grounds of health capability. It was mentioned that appropriate support had been given to the Claimant under the Management of Absence Policy.

The Claimant brought a claim in the Tribunal which included failure to comply with the duty to provide reasonable adjustments. It was alleged that in applying the Management of Absence Policy to the Claimant, it had placed her at a substantial disadvantage. The Tribunal rejected this claim. It was concluded that this policy did not place the Claimant at a substantial disadvantage as flexibility and discretion was built into the drafting of the policy. The Claimant appealed to the EAT.

Decision

The appeal was dismissed. However, the EAT found that the Tribunal had erred in its consideration of the Management of Absence Policy. The Tribunal was wrong to conclude that the PCP to be assessed was the terms of the policy on its own. The application of the policy also needed to be considered and that just because a policy has discretion did not mean that its application would not place her at a disadvantage.

The application put her at a disadvantage because she was at a greater risk of being absent and therefore, being dismissed. This is so, even if there is discretion that could alleviate that disadvantage. The real question was whether the employer had taken reasonable steps to avoid the disadvantage. The EAT concluded that the Tribunal was correct to hold that the Respondent had made all adjustments that were reasonable including placing the Claimant in a supernumerary position, extending the redeployment period, received protected pay, and was offered training aimed at assisting her in securing an alternative role.

Aleem v E-Act Academy Trust Limited UKEAT/0099/20/RN and UKEAT/0100/20/RN

Facts

The Claimant was employed as a teacher. The Claimant suffered with mental health illness which amounted to a disability. They moved to an alternative role as a cover-supervisor which would have paid less. For three months, the Claimant's pay was protected at the higher rate. The Respondent was at pains to point out that this was temporary during the probation period of this new role.

Occupational Health advice indicated that the Claimant would be unfit to continue the teaching role but could continue in the supervisor position. The Respondent offered the Claimant the supervisor job, but now at the lower rate of pay. The Claimant brought a claim for, amongst other claims, failure to comply with the duty to provide reasonable adjustments. The Tribunal rejected that the failure to continue to pay the Claimant at the higher rate amounted to a failure to comply with the duty.

Decision

The EAT rejected the appeal. The EAT accepted the Tribunal’s finding of fact that the Respondent had made clear that this was a temporary arrangement. The Respondent was not obliged to the pay the Claimant's the higher rate and the Claimant had accepted the job offer on the lower pay.

The Tribunal had not been wrong to take into account the serious financial pressures that would have been inflicted on the Respondent had it been required to pay the higher amount indefinitely when considering that such an adjustment was unreasonable.

 


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