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.
Ljegede v Signature Senior Lifestyle Operations Limited EA-2020-000047-AS
Facts:
The Claimant worked for the Respondent as a ‘Lead carer’, and brought claims of discrimination. The Claimant was represented by his wife, a lay person and for the employment tribunal (ET), the parties had prepared an agreed list of issues which the ET went through at the commencement of the hearing. This was in order to clarify the matters to be determined by the ET. However, the ET departed from the agreed list of issues, narrowing the claim by excluding 2 issues.
The Claimant’s claims were dismissed. He appealed, arguing that the ET had erred in departing from a list of issues previously agreed.
Held:
The EAT held that the Tribunal had wrongly narrowed the list of issues leading it to misunderstand the basis of the claim. They held that a Tribunal should not narrow its focus from a list of issues previously agreed between the parties unless variations are necessary and in the interests of justice. The ET ought to have directed itself properly as to the significant issues in dispute.
Nissan v Passi [2021] EWHC 3642 (Ch)
Facts:
Disciplinary proceedings were brought against Mr Passi in June 2020. It was then decided in November 2020 that his employment should be terminated on grounds of misconduct, and he was given payment in lieu of notice. Nissan stated that Mr Passi was dismissed because he failed to follow lawful instructions and procedures and had destroyed the necessary trust and confidence of the relationship. Mr Passi stated that he had made protected disclosures in respect of matters relating to a certain high profile and much publicised arrest and related events and that, in consequence of that, he was victimised by the claimants, peremptorily moved from his settled home in Japan and finally dismissed.
Mr Passi had taken, and refused to return/delete, over 100 sensitive and confidential documents belonging to Nissan. He said he had taken them for the purpose of seeking legal advice, and wanted to retain them because he lacked confidence that his ex-employer would disclose them in his pending whistleblowing litigation.
Held:
The HC held that a whistle-blower is not entitled to remove confidential legal documents from their employer for the purpose of taking legal advice. They granted an interim injunction for return and deletion of these documents. Mr Passi had no proprietary interest in the documents, whereas Nissan did. There was no justification for allowing Mr Passi to ‘pre-empt’ what might happen during disclosure on the assumption the employer would not comply with its obligations.
Shittu v Maudsley NHS Foundation Trust [2022] EAT 18
Facts:
The Claimant was employed by the Respondent from 2004, initially as a complaints administrator, then from 2013 as a complaints and serious incidents case manager, until 2016 when he resigned. The Claimant was disabled as he had been diagnosed with bowel cancer. The Respondent made a deduction from the Claimant’s pay for what they considered to be an unauthorised absence when attending a hospital appointment. The Claimant went off sick and lodged grievances in relation to the deduction made from his pay and additional complaints of bullying and harassment. The Respondent dismissed the Claimant’s complaints of bullying and harassment and, whilst offering a conciliatory meeting refused the Claimant a right of appeal. The Claimant resigned and issued claims for constructive dismissal and disability discrimination.
The Tribunal found in favour of the Claimant. However, at the remedy hearing the Claimant was only awarded basic pay for unfair dismissal. No compensatory award was made in respect of the unfair dismissal claim nor were damages awarded for loss of earnings under the discrimination claims. This was appealed to the EAT.
The EAT had to decide what the correct approach was when assessing loss of earnings compensation and remedy for constructive dismissal and disability discrimination dismissal. The issues were firstly whether the ET had assessed loss on the balance of probabilities or on the basis of the loss of a chance. If it had been the former, the second issue was whether it was entitled to take that approach in a claim of constructive dismissal in light of Perry v Raleys Solicitors.
Held:
The EAT held that it is only open to an ET to refuse to award any loss of earnings compensation, or to limit compensation to a period, as opposed to making a percentage deduction where the Tribunal is 100% confident that dismissal would have occurred on the same date as dismissal, or the later period it has identified. The EAT found that the ET had approached the issue on the basis of a loss of chance and held that on the facts of the case, the ET was entitled to find that there was a 100% chance that the Claimant would have resigned on the same date, absent the fundamental breach of contract by the Respondent.
The EAT held that the SC judgment in Perry v Raleys Solicitors does not apply to unfair or discriminatory dismissal claims in the Tribunal. That case applies in professional negligence claims; counter factual matters which depend on what the Claimant would have done absent the tortious act, are to be decided on the balance of probabilities, whereas matters which depend upon what a third party would have done are to be assessed on the basis of a loss of chance.
Mercer v Alternative Future Group [2021] IRLR 620
Ryanair DAC v Morais and others (Case No: EA-2021-000275)
Facts:
In the Mercer case, the EAT concluded that protection from detriment for taking part in industrial action should be read into legislation in order to make it compatible with an employee’s human right to freedom of assembly and to form and join trade unions for the protection of their interests. It found that the lack of protection from detriment short of dismissal for the participants in industrial action amounts to a breach of their human rights.
This reasoning was followed in the Ryanair case.
A number of pilots employed by Ryanair took part in a strike. As a result, and after warning it would do so, Ryanair withdrew concessionary travel benefits from them for one year. The Claimants brought a claim alleging that the withdrawal of benefits was an unlawful detriment. They also claimed that they had suffered a detriment because of being on a “prohibited” list known as a blacklist under the blacklisting legislation.
The ET concluded that protection from detriment for participating in industrial action should be read into the relevant legislation in order to protect the pilots’ human right to freedom of assembly and association under Article 11 of the European Convention of Human Rights. It also concluded that the pilots were protected by the Blacklisting Regulations.
The ET said that it would usually have to consider whether the strike itself amounted to “protected industrial action”. If the industrial action was not protected, then the striking employees would not be protected. However, the Tribunal decided that it was not open to Ryanair to argue that the strike was not protected because of the conduct and outcome of earlier High Court proceedings against the union in relation to the strike.
Ryanair appealed the Tribunal ’s decision in the EAT. The pilots cross-appealed. They argued that it did not matter whether the strike was “protected industrial action”.
Held:
The EAT concluded that the pilots were protected from suffering detriment. It held that the requirement to read the legislation compatibly with the ECHR meant that the ET had correctly concluded that the pilots had been taking part in trade union activities for the purposes of the legislation. However, the EAT concluded that the ET was wrong to find that this depended on the strike being protected industrial action. To ensure compatibility with Article 11, the protection must extend to workers who participate in all union industrial action – regardless of whether such action is protected industrial action.
The EAT also found that striking workers are protected from suffering a detriment under the blacklisting legislation, and that this is not just restricted to protected industrial action given that concept is not referred to in that legislation.
Note both Ryanair and the employer in the Mercer case have been given permission to appeal to the COA.
Kocur v Angard Staffing Solution Ltd [2022] EWCA Civ 189
Facts:
The Claimant was employed by Angard Staffing Solutions (1st Respondent), an employment agency who only supplies its workers to the 2nd Respondent. The Claimant worked as an agency worker for the 2nd Respondent and had typically been allocated less than 20 hours work each week. Once he had worked for the 2nd Respondent for over 12 weeks, he claimed that this had triggered his entitlement to the same basic working and employment terms and conditions as if he was recruited directly, under the Agency Working Regulations 2010 (AWR). Regulation 6 confirms that these ‘terms and conditions’ include pay, the duration of working time, night work, rest periods, rest breaks and annual leave. He claimed that he should therefore be offered the same hours of work as the Respondent’s directly employed staff, which was around 39 hours a week. However, there remained differences between his conditions and those of the permanent employees.
Regulation 13 gives agency workers a right to be informed of vacancies in the same terms as permanent workers. When vacancies arose for the 2nd Respondent, they were put on the internal notice board for all to see, but permanent staff had the first chance to apply. The Claimant was told that he would not be eligible to apply for internal vacancies notified to him. He could only apply when they were advertised externally. He claimed that the right to be notified of any vacancies, included by implication the right to apply for those jobs.
The issue that the courts had to determine was whether the AWR meant that an agency worker doing the same job as a directly employed employee should, after the 12-week qualifying period, be entitled to work the same number of hours per week that that permanent employee enjoyed.
The EAT dismissed his claim. The Claimant appealed to the COA.
Held:
The COA rejected the Claimant’s argument and instead found that the reference to “the duration of working time” is related to working time limits under the Working Time Regulations, not the contracted hours of permanent staff. The COA held that agency workers do not have the right under the AWR to apply and/or be considered for a directly employed vacancy with the hirer. The AWR goes no further than conferring on an agency worker a right to be notified of relevant vacant posts.
Waters v The Mote Cricket Club [2022] EAT 28
Facts:
The Respondent is an unincorporated members’ club run by committee and has 2 cricket pitches on grounds at Maidstone in Kent. It had employed a groundsman from about 2000. It was common ground between the parties that he had been an employee of the club. As part of his contractual arrangements, he had licence to live in residential accommodation at Moteside.
The Claimant was a member of the Club and, latterly, of the committee. He had, on occasion, worked as a volunteer and/or casual worker assisting the groundsman. In 2011 the Claimant started a business, Green Hand Gardens, which provided gardening and grounds services, including the maintenance of another cricket pitch.
The employed groundsman vacated Moteside in 2016. It was decided that his replacement was to be engaged as a self-employed contractor. The person appointed would not have a licence for the residential premises which were to be let out by the Club. A contractor was appointed by the Club. The Claimant obtained a short-hold tenancy of the property at the grounds. He lived and based his business there, using a shed on the property and bringing in a shipping container in which he kept tools and equipment.
The contractor initially appointed was removed, and the Claimant was approached. He stated that he had no desire to work as a contractor, as he felt that the job was better suited to a service-occupier, as had previously been the case. He went on to state that, since he really wanted to do the job, he had no choice but to agree to the terms offered as a contractor. He stated that he was offered a contract, which he signed. The parties then fell out over money. Mr Waters claimed, inter alia, holiday pay, asserting he was a ‘worker’.
The ET concluded that the Claimant was not an employee of, or a worker for, the Respondent and, therefore, was not entitled to claim holiday pay or notice pay; and that an application to amend to claim unfair dismissal would not be permitted.
Held:
The EAT held that the ET was entitled to hold that the Claimant was neither a worker nor an employee for the purposes of the claims he sought to bring in the Employment Tribunal, but was in business of his own account. The judge was entitled to conclude that there was not a “sham” agreement, and that the Respondent was the customer of a business undertaking operated by the claimant.
HM Attorney-General v Taheri [2022] EAT 35
Facts:
Taheri had made over 40 claims in the ET over 10 years, all relating to unsuccessful applications for employment. He therefore had a pattern, following unsuccessful job applications, of bringing discrimination claims and seeking substantial sums, then seeking nuisance payments. If he did not get a settlement, he generally withdrew or threatened adverse publicity to the Respondent or regulatory referral to its representatives. Most claims were withdrawn before a hearing or settled; in two merits hearings, he lost and faced costs. There was evidence to suggest that Taheri had used the ET process to put pressure on would-be employers to enter into low value settlements.
The Applicant asks that the EAT makes a restriction of proceedings order (RPO) of indefinite duration against Taheri, on the basis that he has habitually and persistently, and without reasonable grounds, instituted vexatious proceedings before the ET. Taheri resisted this application, saying it was vexatious and an attempt to violate his rights under Article 6 of the European Convention on Human Rights and under the Equality Act 2010.
Held:
The EAT held that it was appropriate to make an indefinite RPO against a Claimant who had brought over 40 Employment Tribunal claims in 10 years, against a range of prospective employers.
The EAT considered the conditions for an RPO, the first was met, that the Claimant had been ‘habitual and persistent’ in bringing proceedings, despite his bringing no claims between 2013 and 2017. On the available evidence, the second condition, bringing claims without any reasonable ground, was met, as was the third condition, (which overlapped with the second) instituting vexatious proceedings. The EAT noted that many cases had been struck out, or withdrawn before a determination on the merits, in others the Claimant had failed to pay deposit orders. He lost both merits hearings and faced costs.
At the final stage, exercising the discretion on making an RPO, the EAT noted that it would be naïve to discount the possibility that someone in the Claimant’s circumstances might not face discrimination in a competitive labour market but, given the history of litigation pursued by the Claimant, the balance fell firmly in favour of making an indefinite RPO, a filter rather than a barrier to claims. The EAT noted that they thought it was necessary for public protection against abusive claims and to ensure that the administration of justice is not impaired by the persistent pursuit of unmeritorious proceedings.
Arvunescu v Quick Release (Automotive) Ltd [2022] EAT 26
Facts:
The Claimant brought proceedings against the Respondent for race discrimination after his employment was terminated. The proceedings were compromised by a “COT3” agreement signed in March 2018. Soon afterwards, in May 2018, the Claimant brought a new claim against the Respondent. He alleged, among other matters, that in early 2018 he had been rejected when he applied for a post with a wholly-owned subsidiary of the Respondent in Germany.
At a PH, the ET decided that the new claim fell within the scope of claims which were compromised by the COT3 and struck out his claim on the basis that there was no reasonable prospect that the Respondent was liable for his rejection from the post.
The Claimant appealed.
Held:
The EAT allowed the appeal on the strike out, but dismissed it on the basis that it fell within the scope of the COT3. The ET was wrong to consider that claim had no reasonable prospects of success. However, while in theory a claim under section 112 of the Equality Act did not necessarily require a link with employment, on the alleged facts there was a sufficient link with the claimant’s past employment with the respondent to fall within the terms of the COT3.
Brake and another v Guy and others [2022] EWCA Civ 235
Facts:
The Claimants, Mrs Nihal Brake and Mr Andrew Brake, had brought a claim for a final injunction and damages in respect of the alleged accessing, retention and use of emails sent and received by the first claimant, Mrs Brake, said to be private and confidential to the Claimants and held within three email accounts. The email accounts were operated by the Claimants at the time of their dismissal from the third defendant’s employment. The disputed information had been shared with the defendant’s lawyers and (in part at least) some others, including the Claimants’ trustees in bankruptcy.
The defendants denied the claims. The defendants argued that, even if the factual elements for either of the claims were present, they would be entitled to rely on the defence that there was a public interest in accessing, retaining and sharing the emails and the data contained in them because of serious allegations of misconduct made against the first Claimant. This defence was referred to in the judgment, for convenience, as the “iniquity” defence.
At trial, the claim for breach of confidence was dismissed on the ground that the first Claimant chose to put her own emails into the company’s business email account instead of using one of her own private email accounts. It also held that:
- The first Claimant did not have a reasonable expectation of privacy or confidentiality in relation to the personal emails.
- In case the matter should go further, even if there had been a reasonable expectation of privacy, the defendants would not have misused private information or breached confidence by passing the emails, in confidence, to their professional advisors for the purpose of obtaining their advice.
- The Claimants did not appear to have suffered any appreciable damage, and if the Claimants had succeeded in their claim, damages of £5,000 would have been sufficient.
The Claimants appealed.
Held:
The appeal was dismissed. The HC held that the Claimants had failed to discharge the burden of proof in relation to the reasonable expectation of privacy. The fact that the first Claimant shared the email account with two other employees suggested that it was not reasonable for them to expect the emails to remain private. It was also held that:
- The fact that the defendants’ solicitor had identified some of the emails as private, and that the defendants had agreed to destroy those emails, did not amount to a recognition that there was an expectation of privacy in relation to them.
- The facts that the first claimant shared the email account with two other employees, neither of whom used it for sending or receiving personal emails, and that those other employees replied to business emails sent to the first claimant via the account, also suggested that it was not reasonable for the first claimant to expect her emails to remain private. The close friendship between the first claimant and one of those other employees had no bearing on this.
- Although the first claimant had had the password for the email account, the password belonged to the employer and was a security measure used for the employer’s benefit. The first claimant did not have control of the account, as the employer administered the account through its agent and, indeed, had changed the password after the first claimant had left its employment. The judge had taken these circumstances into account as part of the context and had not, as the appellant suggested, treated them as determinative.
- It was highly significant that, at the same time as the enquiries account was set up as the business account, separate accounts in the names of claimants and others were also created. Where a business enquiries email account and a separate email account in the employee’s name were set up at the same time, the obvious inference was that the latter was subject to a reasonable expectation of privacy, but the former was not.
- The deputy judge’s finding that the email account was confidential and under the first claimant’s complete control was only interim and carried no weight in the appeal.
Fentem v Outform Ltd EMEA [2022] EAT 36
Facts:
By a letter of 16 April 2019, the employee resigned by giving nine months’ notice to take effect on 16 January 2020. On 19 December 2019 the employer invoked a clause in the contract enabling it, following the employee having resigned, to “terminate the [employee’s] employment forthwith” by paying to him the salary, excluding bonuses, to which he would have been entitled in the remainder of the period of notice that had been given by him. As a result, the contract ended on 19 December 2019, instead of on 16 January 2020.
The ET considered itself bound by a decision of the EAT in Marshall (Cambridge) Limited v Hamblin [1994] ICR 962 to conclude that the invocation, following a resignation, of a clause permitting the employer to terminate the contract upon making a prescribed payment calculated by reference to the unexpired period of the employee’s notice does not, as a matter of law, amount to a dismissal.
On appeal the employee accepted that Marshall v Hamblin stood for that proposition of law, and that if it must be followed, then the appeal must be dismissed. But it was argued that the EAT ought not to follow it, in particular, because it was manifestly wrong.
Held:
The EAT held that in rare circumstances the EAT can depart from its own previous decisions. The circumstances in which the EAT will depart from its own previous decisions are tightly circumscribed. One of them is where a previous decision is “manifestly wrong”, which means that it can be seen to be obviously wrong, without the need for extensive or complicated argument.
Despite the reasoning in the decision itself being problematic, the proposition of law said to emerge from Marshall v Hamblin could not be said to be obviously wrong, without needing any detailed consideration or analysis of the arguments or potentially relevant authorities. That being so, it could not be said to be manifestly wrong, so as to enable the EAT to depart from it. The appeal must therefore be dismissed.
The EAT held that an employee is not being dismissed for the purpose of section 95 of the Employment Rights Act 1996 when, following their resignation, the employer relied on a contractual payment in lieu of notice provision to bring forward their termination date.
Nursing and Midwifery Council v Somerville [2022] EWCA Civ 229
Facts:
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 Claimant was not obliged to sit for a minimum number of sessions, and he could withdraw from any dates he had accepted.
Held:
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. EAT has held that there is not always a requirement for a minimum degree of obligation or commitment required in order for an individual to be a worker. The NMC appealed again.
The Court of Appeal confirmed that an irreducible minimum of obligation is not required for worker status. It is sufficient that the contract includes an obligation on the individual to perform work or services personally, and that the other party is not a client or a customer.
This case will be relevant in relation to zero hours or casual contracts.
