UK employment law cases spotlight – October 2021

29 Oct 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.

Kong v Gulf International Bank (UK) Ltd: EA-2020-000357-JOJ

Facts:

The Claimant was employed by the Respondent as Head of Financial Audit. A draft audit report prepared by her raised concerns that an existing legal agreement did not provide sufficient protection against risks arising from the involvement of non-bank counterparties. These amounted to protected disclosures. The Head of Legal disputed her concerns and considered that the Claimant had impugned her integrity. The Head of Legal intimated to the Head of HR that she could not see how she could work with the Claimant. She also declined mediation. The Head of HR and CEO began to take the view that the Claimant should be dismissed. The Group Chief Auditor concurred and the Claimant was dismissed. The Claimant brought claims for detriments because of protected disclosures, automatic and ordinary unfair dismissal and wrongful dismissal. The detriment claim would have been successful but was out of time and was therefore dismissed and the wrongful dismissal claim was dismissed. The ordinary unfair dismissal claim was successful but the claim for automatic unfair dismissal due to making a protected disclosure was rejected. This was because, following Jhuti, the motivation of the Head of Legal (who had been found to have caused a prima facie detriment to the Claimant) could not be imputed or attributed to the managers who dismissed the Claimant. The Claimant appealed the decision to dismiss the automatic dismissal claim.

Held:

The Appeal was rejected. The EAT reaffirmed that the decision in Jhuti will only operate in very limited circumstances. The features required for the employer's motivation to go beyond that of the decision maker is: a) the person whose motivation is attributed to employer must have tried to procure the employee's dismissal, b) the dismissing manager must have been "peculiarly dependant" upon that person as the source of the underlying facts involved and c) that person's role or position must be of a particular kind that it is appropriate for their motivation to be attributed. These features did not exist in this case. The Head of Legal was distinct from the dismissal managers in this case. The Tribunal had been correct to find that the dismissal was not based on the protected disclosure, but the conduct of the Claimant towards the Head of Legal when they met and in subsequent emails. It was viewed that this was evidence of a wider issue with the Claimant's interpersonal skills and was an unacceptable personal attack on the Head of Legal.

XR v Dopravní podnik hl m Prahy (Case C-107/19)

Facts:

XR worked as a firefighter in Prague. This was on a shift working basis. During his 12-hour shift, he was entitled to two food and rest breaks of 30 minutes each. Between 6:30am and 1:30pm, he could go to the canteen near his workstation provided he remained on standby with 2 minutes’ notice. The rest breaks were unpaid. They were only included in the calculation of working time if they were interrupted by a call-out.

XR challenged the method by which his remuneration was calculated. They argued that all breaks, including uninterrupted ones, amounted to working time. The claim was rejected by the Supreme Court of the Czech Republic. The District Court, where the case was remitted, sought a ruling from the Court of Justice of the European Union (ECJ) on whether the rest break in these circumstances should be considered working time.

Decision:

The ECJ held that the rest break was working time. The ECJ clarified that, unless considering annual leave, the Working Time Directive is not concerned with remuneration. Therefore, the issue is not payment for the rest breaks, but whether it could be termed a "genuine rest break" given that they could be called back to work on 2 minutes’ notice.

Applying the previous ECJ case of DJ v Radiotelevizija Slovenija (Case C-344/19), the Court set out various features to assist distinguishing working and rest time. This included:

  • Just because a worker is not carrying out activity for the employer’s benefit did not mean that this was a rest period;
  • It is important that a worker was at a place of the employer’s choice;
  • A period of time that a worker is on standby is also important to the distinction; and
  • A period of standby where a worker can be called back to work at short notice is usually considered working time, but the nature of the restraint placed on the worker has to be assessed.

Based on the facts, a rest break in which the worker could be called back to work on 2 minutes' notice should be considered "working time" where it is apparent that the restrictions placed on the worker objectively and significantly impact the worker’s ability to manage their own time.

HMRC v Professional Game Match Officials Ltd [2021] EWCA 1370

Facts:

The Respondent engages referees to officiate football matches. They are appointed annually before the season starts and usually perform this alongside other full-time jobs. They were paid expenses for each match they officiated. The Respondent assessed their competence and offered training in which the referees were not obliged to follow any particular training programme. Match appointments would be offered at the start of each week and the referee could choose to accept or reject these. The Respondent could cancel the appointment as well. A coach was employed for each referee, the referees were provided with health benefits and a uniform was supplied. A code of practice stated that the referees were self-employed and that match appointments were not guaranteed.

HMRC issues a determination that the referees were employees and that the Respondent should have deducted income tax and employer's national insurance contributions from the payments it makes to the referees. The First-tier Tribunal concluded that two contracts existed: the annual (overarching) contract and the individual contract for each match. The First-tier Tribunal held that the referees were not employees because there was no mutuality of obligations between the parties or control over the referees. HMRC appealed to the Upper Tribunal. The Upper Tribunal rejected the appeal holding that the referees were not obligated to make themselves available and the Respondent did not need to provide work. In respect of the individual match day contracts, either party could refuse to perform the contract without being in breach of contract. On the issue of control, the Upper Tribunal held that too much weight had been placed on the notion that the Respondent could not intervene while a referee was officiating, the issue was whether there was ultimate authority via orders and directions. However, the control point was academic due to the lack of mutuality in both the overarching and match day contracts. HMRC appealed.

Held:

The Court of Appeal allowed HMRC's appeal. The Court agreed that there was no mutuality of obligations in the overarching contract. However, the Court held that both the First-tier Tribunal and Upper Tribunal had erred in concluding that there was insufficient mutuality of obligations in respect of the match day contracts. What mattered, according to the Court of Appeal, was that the contract subsisted, and it did not matter that either side could terminate it without breaching it. This did not negate mutual obligations for both parties. The mutuality question in respect of the match day contracts is distinct from the overarching contract.

The Court of Appeal accepted that the Upper Tribunal was correct to hold that the First Tier Tribunal had erred on the issue of control but with two qualifications. The employer’s directions do not need to be enforceable in the sense that there had to be an effective sanction. The Upper Tribunal had been wrong to assume that a contractual obligation without sanction was not enforceable. They are, by definition, enforceable under the contract regardless of whether a contract allows for sanction.

The Upper Tribunal had held that the First-tier Tribunal did not give sufficient weight to the elements of control from the overarching contract. The Court held that this was incorrect, and the correct analysis was that the FTT had given decisive weight to irrelevant factors such as the inability for the Respondent to intervene in a match and its inability to apply sanctions.

The case has been reverted to the FTT to consider the mutuality of obligations and control elements in light of this judgment.

TYU v ILA Spa Limited EA-2019-000983-VP

Facts:

The Claimant left her employment with the Respondent with immediate effect having been subject to a disciplinary process during a period of garden leave. The Claimant brought proceedings for unlawful deductions of wages, but withdrew her claim after the Respondent submitted their ET3. A year later, claims of unfair dismissal and wrongful dismissal were brought by two of the Claimant's former colleagues. These claims were unsuccessful and the judgment was published on the register. The Claimant was named and her position identified. She was named in connection with allegations of serious criminal conduct during her employment including submitting false invoices, theft and threatening behaviour. The Claimant communicated with the Tribunal and then made an application under Rule 50 of the Tribunal Rules to remove her name as she alleged it was causing her reputational damage. The application requested that she be anonymised from the judgment and other personal information be redacted. She did not seek a restricted reporting order. The Respondent opposed the application.

The Tribunal rejected the application saying that the Claimant did not have a reasonable expectation of privacy when the matters were being discussed in a public hearing. The Claimant's Article 8 rights were not engaged. The fact that she was not a party to the proceedings was irrelevant to her Article 8 rights. Alternatively, if Article 8 was engaged, it was outweighed by the principle of open justice under Article 6 and 10. The Claimant appealed to have just her name removed and her position with the Respondent redacted.

Held:

The EAT allowed the appeal. It held that just because the information relating to the Rule 50 application had already been mentioned in open court did not preclude the engagement of Article 8, especially when the concern is reputational damage rather than protecting private information. The Tribunal had not made conclusions as to the Claimant's circumstances and the engagement of Article 8 rights and concluded her rights were not engaged. This was an error of law.

The Tribunal had also been incorrect in holding that the Claimant's status as a non-party to the proceedings which mentioned her was not a distinguishing feature. Previous cases had shown that it may be relevant that an applicant has not chosen to be part of the proceedings. In this case, the Claimant had a reasonable expectation of privacy in a case where the Tribunal did not need to refer to her. The Claimant had withdrawn her claim at an early stage meaning that no public hearing was anticipated. The fact that the case featured prominently on a google search and did not carry a disclaimer that the criminal allegations were unproved meant that Article 8 was clearly engaged.

The EAT also concluded that the Tribunal had not conducted the necessary weighing exercise between Article 8 and Articles 6 and 10. The Tribunal did not engage with what Article 8 rights were in play for the Claimant or the proportionately of the interference. It has also failed to consider what steps could have been taken to minimise the intrusion of the Claimant's Article 8 rights.

The EAT remitted the issue to the Employment Tribunal with guidance on weighing the competing interests.

Pitcher v University of Oxford EA-2019-000638-RN and University of Oxford v Ewart EA-2020-000128-RN

Facts:

Both cases concern the University's Employer Justified Retirement Age (EJRA). The EJRA was introduced following a consultation and the broad justification of the EJRA was:

  1. Inter-generational fairness;
  2. Succession planning; and
  3. Promoting equality and diversity.

Pitcher was compulsorily retired and his application for an extension was refused. His claims of direct age discrimination and unfair dismissal were rejected by the Tribunal as the EJRA was justified. Pitcher appealed to the EAT.

The EJRA was also applied to Ewart. He was initially granted an extension of his employment but his application for a further extension was rejected. A different Tribunal upheld his claims of direct age discrimination and unfair dismissal, finding that the EJRA was not justified. The Tribunal had the benefit of different evidence which showed that the EJRA could only improve the vacancy creation rate by roughly 2-4% and that diversity had not materially improved. The University appealed to the EAT.

Held:

Both appeals were dismissed. The Tribunal in Ewart had the benefit of evidence which challenged whether the EJRA was a proportionate means of achieving a legitimate aim. Moreover, the impact on Ewart as a research scientist reliant on a project team and facilities was more acute than Pitcher, a Shakespearean scholar. However, the EAT did add that it would be possible for different tribunals to come to different results from a proportionality assessment when considering the same measures with the same aims and even with the same evidence. This would not lead to an error of law unless the policies' justification was Cockram obvious. In such an instance, where it would be unreasonable to expect an employer to have the evidence which justifies the legitimate aim against its discriminatory impact or where it is obvious of the impact it will have, a Tribunal could fall into error in how it weighs the competing evidence. This does not mean that a mere assertion is enough to justify direct age discrimination, but a "reasoned projection" may be enough depending on the nature of the policy.

Mr A Agbeze v Barnet Enfield and Haringey Mental Health NHS Trust EA-2020-000413-VP

Facts:

The Claimant was an NHS "bank" worker. Under the terms of his contract the Respondent was not obliged to offer work and he was not obliged to accept an assignment offered to him. Payments were tied to assignments offered and performed. The Claimant was accused of misconduct and the Respondent suspended the Claimant from the bank for a number of months while this was investigated. He was not offered any work during the suspension as he was deemed not eligible. The Claimant brought claims for unlawful deduction of wages. The Claimant's contention was that there was an implied term that entitled him to be paid his average wage during his suspension as long as there was available work. The Tribunal rejected this claim. The Claimant appealed.

Held:

The Appeal was rejected. The EAT referred to the agreement between the parties which lacked any mutuality of obligations and provided that the Claimant's pay would be in respect of duties carried out in the provision of his services. The EAT drew a distinction between an employee under a permanent contract of employment where there is an ongoing right to be paid and bank worker where the right to payment is tied to the services they offer and are carried out. Conflating the two would not respect the nature of the contractual arrangement between the two. The EAT rejected the argument by the Claimant that the decision in Uber BV v Aslam could be relied upon to support the implied term due to a purposive application of the statutory protection against unlawful deduction from wages. This decision related to statutory interpretation, not contractual interpretation, and that protecting workers in such a way should be left to Parliament.

Martin v  London Borough of Southwark and The Governing Body of Evelina School EA-2020-000432-JOJ

Facts:

The Claimant was a teacher at the Second Respondent's school. He had concerns that teachers, including himself, were working in excess of "statutory directed time". Before the Tribunal, it was submitted that the Claimant had made 5 disclosures and that he suffered detriment because of them. The Tribunal rejected this claim holding that none of the 5 disclosures were "protected disclosures" because they did not identify a breach of legal obligations or were not disclosures in the public interest and could not, therefore, be qualifying disclosures. The Claimant appealed.

Held:

The EAT upheld the appeal. It held that the Tribunal had erred in its approach and that the analysis of a qualifying disclosure needs to be structured around 5 requirements:

  1. There must be a disclosure of information;
  2. The worker must believe the disclosure is made in the public interest;
  3. That belief must be reasonably held;
  4. The worker must believe that the disclosure tends to show one of the matters in s43B(1)(a)-(f) Employment Rights Act 1996, e.g. a criminal offence has been committed;
  5. That belief must be reasonably held.

The Tribunal had not applied this test to the 5 disclosures in question and instead had focused objectively on whether the information tended to show a breach of legal obligation and/or in the public interest. The Tribunal did not assess whether there was subjective belief in the disclosure being in the public interest and whether the belief was reasonable. Additionally, the Tribunal strayed into focusing on the Claimant's motive in making the disclosures when considering his own desires to not work excessive hours. The Claimant's desires in making the disclosure and whether he reasonably believed the disclosure was in the public interest are mutually exclusive questions and the latter should have been the focus of the Tribunal's consideration.

The EAT also added that the Tribunal had decided that the final disclosure was not a qualifying disclosure as the information disclosed was information the Respondent was already aware of. This was incorrect under section 43H, Employment Rights Act 1996.

The claim has been remitted to a differently constituted Tribunal for fresh consideration.

 


We are the HR and employment law experts from esphr.

It’s our mission to advise and develop the employment law capability of HR professionals wherever we can, helping HR teams make a real commercial difference to their organisations. That way, you spend less time solving operational issues and more time actioning projects that drive far-reaching change in your company.

Call 0333 006 2929 or email info@esphr.co.uk today to discover exactly how we can help you.