UK employment law cases spotlight – December 2021

7 Jan 22 by esphr
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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.

Emuemukoro v Croma Vigilant (Scotland) Ltd and Others: EA-2020-000006-JOJ

Facts:

The Claimant was employed as a security officer by the Respondent until he was dismissed for, purportedly, failing to provide documentation that proved he was entitled to work. The Claimant was one of several employees who were dismissed for this reason. The Claimant brought various claims including unfair dismissal, wrongful dismissal in respect of notice pay, and holiday pay.

The Tribunal made a Case Management Order at the preliminary hearing. However, the Respondent missed various deadlines meaning that on day one of the five day hearing the Respondent had failed to prepare their witness statements and the hearing bundle was missing various documents which were vital to the case.

The Claimant applied to have the response struck out and the Tribunal accepted this application. It found that it would not be possible to conduct a fair trial in the allocated trial window and that adjourning the proceedings would cause unacceptable prejudice to the Claimants who had already suffered considerable losses in the two years after their dismissal. The Tribunal found that the Claimant's case was well-founded. The Respondent appealed, arguing that the strike out should only occur where it would never be possible to conduct a fair hearing.

Held:

The EAT dismissed the appeal. It held that it was enough that a fair trial could not take place within the allocated trial window due to the Respondent's conduct. A strike out application had to consider various factors including financial expenditure, the demands of other litigants and the finite resources of the tribunal. if the test was one of whether a future trial was feasible it would mean these concerns were subordinate to these factors. The overall question in such an application is fairness which should not preclude the consideration of these factors.

The EAT also added, when considering whether it was proportionate for the Tribunal to exercise their strike out discretion, that the strike out decision was the most proportionate course of action when considering the prejudice that would have occurred if the adjournment application was granted.

Hovis Limited v Louton: EA-2020-000973-LA

Facts:

The Claimant was summarily dismissed by the Respondent for smoking while driving his company vehicle. The Claimant denied this accusation and the Respondent had no physical evidence that he smoked in the vehicle. However, the Respondent did have evidence including written statements by a manager for the Respondent and his wife who alleged that they saw the Claimant smoking when they overtook him on the motorway. This included dashcam footage which confirmed that it was the Claimant's vehicle.

Following an internal investigation, the Claimant was dismissed without notice. The Claimant brought claims of unfair and wrongful dismissal. At the hearing, the Claimant gave evidence in person and denied that he had been smoking whilst driving. Neither of the two witnesses gave evidence in person, although their written statements were put in evidence.

The Tribunal rejected the claim for unfair dismissal but found that the dismissal was wrongful. This was because the Tribunal stated that it needed to make its own assessment of the facts. The Employment Judge did not hear evidence from the two individuals who alleged that the misconduct had taken place and had only heard evidence from the Claimant. On that basis, the Tribunal could not evaluate the evidence and come to a finding that the misconduct had taken place on the balance of probabilities. The Respondent appealed.

Held:

The Respondent's appeal was upheld in part. The EAT rejected the ground of appeal that the Tribunal had fallen back on the burden of proof rather than making a positive finding. This was rejected as the Tribunal held that there was insufficient evidence in relation to the allegation.

The second ground of appeal did succeed. This ground of appeal was that the Tribunal had wrongly ascribed no weight to the documentary and hearsay evidence. The Employment Judge had said that without the eye witness testimony they could not assess the credibility of the Claimant and, as a result, could not make a finding against the Claimant. The Employment Judge had erred in this respect as there was no rule that oral testimony must be preferred to hearsay or documentary evidence if the judge were to find them more reliable. It was wrong to say that the judge could not assess the credibility of the statements or that it was not open to the Tribunal to find against the Claimant.

The EAT overturned the finding of wrongful dismissal and the case was remitted to a new tribunal.

Gray v University of Portsmouth: EA-2019-000891-OO

Facts:

The Claimant was employed by the Respondent as a service delivery analyst in the Information Service department. The Claimant took three months sick leave in 2014 and, at a similar time, he was diagnosed with high-functioning autism. On return, an incident took place with his manager and the Claimant was unable or unwilling to engage with the reconciliation process. The Claimant began to attend occupational health sessions but the doctor was not able to provide as much support as the Claimant did not provide his consent to progress referral questions.

The Claimant began sick leave again in 2015 due to a mixture of stress, which in combination with his autism, caused him to be off work. The Claimant's sick pay was halved after the first 6 months of his sick leave in line with company policy. The Respondent's capability procedure was used and meetings began which were aimed at supporting the Claimant. Meetings were regularly delayed or rescheduled to support the Claimant.

The Claimant requested a support worker, which initially became an issue in stage 2 of the procedure. By the first stage 4 meeting the Respondent was prepared to agree to the engagement of a support worker for eight weeks, although this was subject to identifying such a person. This did not occur and at the end of the process the Claimant was dismissed. His appeal against dismissal was rejected.

The Claimant made a claim under section 15 of Equality Act 2010 for discrimination arising from disability in that the Respondent had treated him unfavourably in setting up a meeting under the capability procedure, withdrawing sick pay, dismissing him, and rejecting his appeal.

The Tribunal rejected the claim and held that the steps taken by the Respondent were justified as a proportionate means of achieving a legitimate aim. The aim in this case was the efficient running of the department. The Claimant appealed on the basis that the Tribunal had not explained its conclusions as to why the Respondent's actions were justified. 

Held:

The EAT upheld the appeal. It was noted that section 15 requires a critical evaluation and a tribunal must carry out its own assessment of the objective justification to the discriminatory conduct. A tribunal is also required to explain how its assessment has been undertaken. In this case, the Tribunal's conclusions that the formal meeting under the capability procedure and the withdrawal of sick pay were justified, were not criticised. However, the decision on the dismissal and rejection of the Claimant's appeal lacked the necessary analysis. The Tribunal merely concluded that keeping the Claimant's job open was "significantly disruptive" without considering why this was so.

There was no discussion of how the Claimant's job was being covered and what evidence existed of the disruption suffered by the Respondent. There was no evidence of the cost to the Respondent of this continued absence nor any evidence of any difficulties in arranging cover for the Claimant's work.

It was also the case that the rationale behind justifying the decision to instigate a meeting under the capability procedure, which was the uncertainty regarding the Claimant's requested support, was incorrectly applied to justify the decision to dismiss, when this uncertainty was no longer present by the time of that decision. Overall, it was unclear what reasons suggested by the Respondent were accepted by the Tribunal and how this was weighed against the discriminatory impact of the dismissal.

The case has been remitted to the same Tribunal.

Sullivan v Bury Street Capital Ltd [2021] EWCA Civ 1694

Facts:

The Claimant had worked for the Respondent since 2009 as a senior sales executive. Following the breakdown of a relationship with a Ukrainian woman in 2013, he suffered paranoid delusions that he was being followed by a Russian gang connected to the woman. The Claimant's conditions caused a lack of sleep and difficulties with social interactions. The condition also impacted his timekeeping, although the Respondent had concerns with this before 2013.

The Claimant was able to take part in important business meetings by the end of 2013 but his condition deteriorated again in 2017 and after being signed off sick, the Respondent dismissed the Claimant on the basis of capability because of his poor timekeeping, lack of communication, unauthorised absences and poor record-keeping.

The Claimant brought claims of unfair dismissal, discrimination arising from disability, indirect disability discrimination, failure to make reasonable adjustments and unlawful deduction of wages. The Claimant was successful in the Tribunal in respect of his unfair dismissal claim, but not his discrimination claims. The Tribunal concluded that his delusions were not a disability within the meaning of section 6 of the Equality Act 2010.

This was because the Tribunal concluded that the evidence did not show that the condition would have a substantial adverse effect on his ability to carry out normal day-to-day activities from 2013 to 2017. In addition, while there were periods in each of those two years where a substantial adverse effect did occur, in both cases it was unlikely that the effect would persist for at least 12 months or recur. In the alternative, the Tribunal concluded that the Respondent would not have been aware, actually or constructively, of the disability. The Claimant appealed both the finding that he was not disabled and that the employer lacked knowledge of the disability.

Held:

The Court of Appeal rejected the appeal. Ultimately, the Court of Appeal could only assess if the reasons given by the Tribunal for its decision were adequate. The Court concluded that its reasons were adequate, but dealt with them in turn. The Tribunal had asked itself the correct questions on assessing a substantial adverse effect and a lack of reference to the explanatory notes and guidance on the Equality Act 2010 did not amount to an error of law.

The Tribunal had not erred in its approach as to whether the disability would be recurring. In this case, there had been the triggering events of 2013 and a recurrence in 2017 but it did not follow that the condition would be recurring. In this case, the recurrence in 2017 had been due to an issue with remuneration and the Tribunal was entitled to conclude that the triggering event was unlikely to recur.

Primaz v Carl Room Restaurants Ltd t/a McDonald's Restaurants Ltd and Others: EA-2020-000110-JOJ and EA-2020-000278-JOJ

Facts:

The Claimant works in the fast-food restaurant franchise owned by the first Respondent. In her claim, the Claimant alleged various instances of disability discrimination. A preliminary issue was whether the Claimant was disabled. The Claimant had been diagnosed with epilepsy in 1996. The Claimant also had a brain tumour removed ten years prior to the events in question.

The medical records at the time did not mention that the tumour was cancerous and it was stated that it was benign, but the Claimant relied on Public Health Guidance which stated that these type of tumours are considered cancerous. The Claimant argued that this was a disability and that it had caused other impairments including epilepsy and  vitiligo. The Claimant avoided alcohol, coffee, cleaning products, sunlight and all medications due to her belief that this would help mitigate these conditions (despite the fact that the medical evidence did not support these beliefs).

The Tribunal in the Preliminary Hearing rejected the claim that the Claimant was disabled due to her tumour as the Tribunal could not conclude that it was cancer and even if it was, it had been removed prior to the alleged discriminatory actions. However, the Tribunal did conclude that the Claimant was disabled by reason of her epilepsy and that her adopted behaviour aimed at mitigating its impact gave rise to a substantial adverse impact on her day-to-day activities. The Respondent appealed.

Held:

The EAT allowed the Respondent's appeal. The EAT held that the Claimant had suffered with cancer and that the Public Health Guidance could be relied upon. However, the Tribunal was still entitled to hold that the Claimant was not suffering with cancer at the time of the alleged discriminatory conduct.

However, on the question of whether the Claimant's impairments had an adverse impact on normal day-to-day activities, the Tribunal confirmed that this question was an objective one and could not be resolved by the Claimant's subjective beliefs. It should have considered what impact the conditions actually had on the Claimant's day-to-day activities, disregarding the Claimant's avoidance techniques.

The question of whether the Claimant was disabled was remitted to a new tribunal.

Walsh v Network Rail Infrastructure Limited Case No: EA-2020-000724-RN

Facts:

The Claimant submitted a flexible working request. The Respondent rejected this request. The Claimant appealed this rejection but there was a delay in setting the date for the appeal hearing. This delay passed the original decision period for dealing with the request (3 months after the flexible working request).

The Respondent communicated with the Claimant on 24 June that the appeal hearing would take place on 1 July. However, a day after the communication, the Claimant issued tribunal proceedings bringing a complaint that the Respondent had not followed the correct process for a flexible working request. The Tribunal found that an agreement was reached with the Claimant for this appeal hearing date. The Claimant's appeal was rejected by the Respondent.

The Tribunal held that it did not have jurisdiction to hear the claim on the basis that agreement to hear the appeal on 1 July also led to an agreement to extend the decision period. The Claimant appealed.

Held:

The EAT held that there was jurisdiction to hear the claim. Agreement is required to extend the decision period. Agreement to the appeal hearing did not necessarily involve an extension to the decision period. Extension to the decision period requires specific agreement. An appeal outside the decision period could resolve the differences between the parties but an employee agreeing to do so does not imply that there is an agreement to extend the decision period.

Slade and another v Biggs and Others: EA-2019-000687-VP and EA-2019-000722-VP

Facts:

The Claimants worked at properties owned by the Respondent (Sir Benjamin Slade). They were both employed by Offer Ltd, but were TUPE transferred to Aethelbert Ltd just before their employment was terminated. Mrs Biggs was employed as an administration assistant up until she resigned. Ms Stewart was employed as a deputy manager until she was dismissed.

Both employees notified the Respondent that they were pregnant in the space of 5 months. The Tribunal found that the Respondent found this "highly inconvenient" and sought to "engineer their departure from their employment" by pursuing a course of conduct aimed at encouraging their resignation including failure to pay them their correct wages, their maternity pay, a TUPE transfer to a company with no funds and ignoring their grievances.

The Respondent also insisted that Mrs Biggs resign. Ms Stewart was accused of misconduct and, while recovering from her premature birth, was dismissed with her dismissal date backdated which, the Tribunal concluded, was an attempt by the Respondent to avoid paying maternity pay.

The Tribunal concluded that the disciplinary process was engineered to drive Ms Stewart from the business and did not follow a fair process with no hearing held, no right of appeal and no detail of the charges given to Ms Stewart.

The Tribunal concluded that both the Respondent and his colleague, Mr Hamilton, were found to have acted vindictively with Mr Hamilton held to be jointly and severally liable for pregnancy and maternity discrimination against Mrs Biggs and Ms Stewart as well as the constructive unfair dismissal of Mrs Biggs, unfairly dismissing Ms Stewart and not informing or consulting with either employees in respect of the TUPE transfer.

The Tribunal also awarded the maximum 25% uplift to the unfair dismissal, injury to feelings and aggravated damages as the disciplinary process against Ms Stewart was conducted without regard to the Acas Code. Further, the Respondent had ignored the grievance of Mrs Biggs, giving her little choice but to resign.

The Respondent appealed saying that the 25% uplift was too high as it involved double-counting between the awards for injury to feelings and aggravated damages and the 25% uplift to the awards produced figures which were disproportionate. It was also submitted that the Tribunal erred in grossing up the awards for injury to feelings and aggravated damages and these were taxable under section 401 of the ITEPA 2003. Mr Hamilton also appealed his joint and several liability for the uplift amounts.

Held:

The EAT upheld the Tribunal's decision to apply the maximum uplift and to gross up the awards for injury to feelings and aggravated damages. The EAT could not find any obvious double-counting on the awards given. The different damages were remedies for distinct elements of the alleged conduct.

The argument that the awards were disproportionate was also dismissed. Cases must exist to which the top band of 25% applies and the discretion given to the Tribunal was broad. While this should be reserved for the most serious conduct, there was no requirement for a tribunal to state that such cases were exceptional in order to apply the uplift. Wholly disproportionate sums must be reduced, but reference should not be made to case law in order to create a further numerical threshold to further modify the percentage uplift. This would effectively introduce a new cap which Parliament had not intended.

The EAT upheld the decision to gross up the injury to feelings. They were clearly taxable as connected to the termination of employment and the Tribunal was correct to gross up those awards to take account of this taxation.

In addition, the Tribunal was entitled to find Mr Hamilton joint and severally liable for the uplift as he had been personally and directly involved in the discrimination and the Tribunal was entitled to find him equally culpable.

In order to assist with future cases, the EAT gave guidance on the issue of addressing percentage uplift for failure to comply with the Acas code:

1. Is it just and equitable to award the uplift?

2. What does the tribunal consider a just and equitable percentage, not exceeding, but potentially equalling, 25%?

3. Does the uplift overlap with other general awards such as injury to feelings? If there is overlap, what does the tribunal consider would be an appropriate adjustment, if any, to the percentage to avoid double-counting?

4. Finally, is the sum of money represented by the percentage uplift disproportionate in absolute terms? If it is, what adjustment needs to be made?

 


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