UK employment law cases spotlight – September 2021

30 Sep 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.

Seccombe v Reed In Partnership Limited Appeal No. EA-2019-000478-OO

Facts

The Claimant was engaged as a Supply Chain Manager and was summarily dismissed after several periods of absence in 2018. The Claimant experienced an extremely traumatic event at work. The absences followed this event. The Claimant contended that his dismissal amounted to disability discrimination and/or that the Respondent failed to make reasonable adjustments. The Claimant contended that his disability was severe anxiety and depression.

The Claimant had suffered with three instances of anxiety/ depression. Two of these preceded the Claimant's employment with the Respondent. On his health questionnaire the Claimant did not disclose any mental health impairment. There was a lack of medical evidence supporting the existence of the impairment at the time of the dismissal and evidence of this medical impairment did not point to it having a substantial adverse effect over a number of years.

The Tribunal accepted the evidence of two of the Claimant's former colleagues who had worked with him in his previous employment who said that he never presented with or told them of any impairment or associated difficulties. The Tribunal therefore concluded that the Claimant was not a disabled person for the purposes of the claim and, in the alternative, that even if he was, that the employer did not have actual or constructive knowledge of the disability. The Claimant appealed to the EAT on both the existence of his disability and the employer’s knowledge.

Held

The EAT refused the Claimant's appeal. It held there was nothing perverse in the Tribunal's conclusion that the Claimant was not a disabled person. The Claimant had submitted that the Tribunal had erred when it considered the Claimant's failure to inform his colleagues of his impairment in the question of whether he was disabled. The EAT clarified that whilst the Respondent's knowledge is irrelevant to the question of the existence of a disability, it did not mean that what the Claimant says or doesn’t say is irrelevant.

Indeed, while caution should be exercised when considering any failure to communicate, it is a question of fact and degree, particularly when someone has previously spoken openly about an impairment. It was therefore also reasonable to conclude, on the evidence, that the tribunal was entitled to conclude that the employer would have had no knowledge, actual or constructive, of the disability.

Kinlay v Bronte Film and Television Ltd ET/2200251/2020

Facts

The Respondent was producing a television series. The Claimant had previously played a minor role in a previous instalment and was due to appear again in the same minor role but was to be more pivotal to the plot. The Respondent was advised that the Claimant was 12 weeks pregnant and was due in mid-January 2020. The Respondent decided not to cast the Claimant.

The Claimant brought a claim for discrimination because of her pregnancy. The Respondent submitted that the treatment of the Claimant was a general occupational requirement (GOR) in Schedule 9, Paragraph 1 of the Equality Act 2010. The Respondent argued that it was a requirement that the actor performing the role would not be visibly pregnant and that this was a proportionate means of achieving a legitimate aim. The Claimant agreed that the character could not be visibly pregnant but contested that this was the equivalent of a GOR.

Held

The Tribunal upheld the claim. The Tribunal found that the Claimant's pregnancy could have been concealed through the use of costume, camera angle, props, the positioning of other actors and make up if appropriate. Arguments were submitted by the Respondent that the GOR was proportionate, including: in order to not constrain the director's creative vision, additional costs associated with a pregnant cast member, arranging filming around the Claimant, the costs of disguising her pregnancy and difficulties with insurance. These arguments were all rejected by the Tribunal.

Prosser v Community Gateway Association Ltd Case No. 2413672/2020

Facts

The Claimant worked for the Respondent on a zero-hours contract. She only carried out shifts when she wanted to. On 13 March 2020, the Claimant informed the Respondent that she was pregnant. On 17 March, the Claimant attended work but the Respondent sent her home based on the Government guidance that pregnant women were considered to be clinically vulnerable to Covid-19. The Claimant was not told when she would be able to return.

The Claimant was angry that she had not been paid for the work she would have carried out. The Respondent carried out risk assessments, acknowledged the delay in paying the Claimant and decided to pay the Claimant for the shifts she would have worked in April, May, June and July. She was allowed to return in August. The Claimant brought a claim for, amongst other things: direct pregnancy and maternity discrimination.

Held

The Tribunal rejected her claim. It did so on the basis that sending the Claimant home and refusing her entry to the workplace, in this instance, was not unfavourable treatment for the purposes of a discrimination claim. Rather, it was a positive step based on the Government's advice of who was vulnerable to Covid-19. The delay in payment may have been unfavourable but it was an administrative oversight that was rectified. Indeed, the pay went beyond her contractual entitlement.

Mhindurwa v Lovingangels Care Ltd ET/3311636/2020 and Handley v Tatenhill Aviation Ltd ET/2603087/2020

Facts

Both cases concern redundancy during the height of the Covid-19 pandemic. Mrs Mhindurwa was made redundant in July 2020. She had worked as a care assistant providing live-in care to a vulnerable patient and this work had diminished when this patient was moved to a care home. The Respondent did not consider using the Coronavirus Job Retention Scheme (CJRS). The Claimant was dismissed and brought a claim for unfair dismissal on the basis that the redundancy was not genuine and was because of concerns she raised about the underpayment of her wages.

Mr Handley worked as a flying instructor for a small business with just 12 staff. In the first lockdown, the flying school closed. The Claimant was placed on furlough for an initial period of 3 weeks "or until you can return to work as normal". In April 2020, the Respondent started the process of making redundancies. The Claimant was selected and made redundant. The Claimant brought a claim of unfair dismissal on the basis that his furlough agreement prevented him from being made redundant.

Held

The Tribunal found in favour of Mrs Mhindurwa. The Tribunal did not find that she had been dismissed because of her concerns over unpaid wages, indeed, this claim was dismissed. The Tribunal also accepted that a genuine redundancy situation existed as the work had diminished. However, the Tribunal did find that the dismissal was unfair because a reasonable employer would have considered using the CJRS in order to avoid a redundancy situation which would have allowed them to see if work returned. The Respondent could not give a reason for not using the scheme. The Tribunal also concluded that the dismissal was procedurally unfair.

The Tribunal rejected Mr Handley's claim that his furlough agreement prevented him from being made redundant. The Tribunal accepted that the Respondent needed to cut costs and use the CJRS to pay for some of the costs of the redundancy. Another employer may have left the Claimant on furlough for longer, but it was not unfair to make the Claimant redundant. The claim was successful on procedural grounds, but no compensatory award was made as the Tribunal found that there was a 100% chance that the Claimant would be made redundant if a fair process was followed.

Mr E Fallahi v TWI Ltd: EA-2019-000110-JOJ

Facts

The Claimant was employed as Senior Project Leader. There were issues with the Claimant's performance. Targets were set following an informal procedure. These targets were not met, and the Claimant was given a final written warning. There was a three-month window for this warning but after two months, his manager considered that insufficient progress had been made. The Claimant began a period of sick leave, and he was given notice of his dismissal on capability grounds.

The Claimant brought a claim for unfair dismissal. It was unsuccessful on the basis that the Tribunal could not look behind the final written warning unless it was "manifestly inappropriate". This was not the case and that the final written warning was within the range of reasonable responses. The Claimant appealed and contended that the reasonable responses test did not apply to capability dismissal and/or that there were still procedural flaws meaning the dismissal was unfair.

Held

The EAT rejected the Claimant's appeal. The EAT held that the reasonableness of the dismissal was to be judged regarding all the circumstances, not simply the reasonableness of the final written warning. The capability issues had been ongoing for a while and the Tribunal was entitled to find that the warning was both within the range of reasonable responses and not manifestly inappropriate taking into consideration the Respondent's observance of their internal procedures. The EAT also clarified that the "manifestly inappropriate" test applied to both misconduct and capability cases. However, the EAT added that this test will be more important in misconduct cases as a final written warning conventionally allows an employer to dismiss for unrelated further misconduct which is less serious.

Moore v Phoenix Product Development UKEAT/0070/20/OO

Facts

The Claimant invented a water-efficient toilet. This was manufactured and marketed by the Respondent of which he was founder. The Claimant was Chief Executive Officer until 2017 when he was replaced and stayed at the company as a director and employee. There was a breakdown in the relationship between the Claimant and the remaining members of the board. The Claimant was dismissed without being offered a right of appeal. 

The Claimant brought a claim of unfair dismissal partly on the basis of the failure to provide an appeal. The Tribunal rejected this in holding that the Claimant was dismissed for some other substantial reason, namely, the breakdown in relations between the parties and that the facts of this case meant that an appeal would have been pointless based on the Claimant's conduct towards the board, including sending combative emails with abusive language and had been confrontational during the disciplinary meeting, criticising members of the board. The Claimant appealed.

Held

The EAT rejected the Claimant's appeal. This was a rare example of a case where the lack of an internal appeal would not render the dismissal unfair. The EAT explained that based on the circumstances, the Tribunal was entitled to find that an appeal would have been futile. The EAT added that the circumstances that made this so, were that the Claimant was a board-level director, the organisation was small and there was no higher level of management, the Claimant had brought about the "irreparable breakdown" in the relationship, this was destructive and destabilising for the company, the Claimant was unrepentant and had not shown any signs of a change in temperament. In such circumstances, an appeal would serve no meaningful purpose. The EAT also reiterated that there is no statutory test to dismiss fairly with no appeal and that any conclusion in this regard had to be sensitive to the facts of the particular case. 

Mr C Bayfield and Mr C Jenner v Wunderman Thompson (UK) Ltd and Others: 2200540/2019 and 2200546/2019

Facts

Both Claimants were directors at the Respondent company. In 2018, the Respondent published details of a very high gender pay gap at 44.7%. The Respondent resolved to do something about this. In May 2018, the executive creative director gave a presentation attended by the Respondent's CEO. It included a statement that the company wanted to obliterate its reputation for its lack of diversity through a slide with "WHITE, BRITISH, PRIVILEGED, STRAIGHT, MEN CREATING TRADITIONAL ABOVE THE LINE ADVERTISING" crossed out.

The Claimants raised their concerns about the presentation and while the Respondent had sought to reassure them and others of the purpose of the presentation, tensions purportedly remained high. Shortly after these events, the Respondent decided to make 2 creative directors redundant. The two Claimants were chosen. They are both straight, white men. They had both raised concerns about the presentation. They brought various claims to the Tribunal.

Held

The Tribunal upheld claims for unfair dismissal, sex discrimination and victimisation. It rejected claims for race, age and sexual orientation discrimination and dismissal for whistleblowing. The Tribunal noted the Respondent was suffering from falling revenue at the time and that trying to diversify the creative team was a legitimate aim.

However, the Tribunal did find that redundancy process was a sham, and their scores were designed to dismiss the Claimants. This was so that the gender pay gap figures would be impacted and would open senior positions for women. Indeed, the day before the Claimants were selected for redundancy, a female senior creative was not selected because she was a woman. The Tribunal found that a female comparator would not have been treated the same as the Respondent was wanting to improve their gender pay gap.

Scottish Borders Housing Association v Caldwell EA-2020-SCO-000084-SH

Facts

The Respondent had engaged in a two-year period of negotiation with a recognised trade union in relation to changes to the pay scheme of the Respondent's staff. These negotiations were unsuccessful. The Respondent wrote to their impacted employees in September 2019, 8 employees did not accept the changes. The Respondent told these 8 employees in December 2019 that the new terms were being implemented.

The Claimants brought claims for a breach of section 145B of Trade Union and Labour Relations (Consolidation) Act 1992 - the right for trade union members not to be made an offer outside the scope of collective bargaining. The time limit for bringing a claim is 3 months. The Tribunal held that the claim was in time as the December communication constituted an offer. The Respondent appealed.

Held

The EAT held that the December communication was not an offer. The communication expressed a unilateral intention to impose the new terms based on a reasonable construction of the letter. It was not argued that it was not reasonably practicable to bring the claim earlier, so the claims were ruled out of time.

Forth Valley Health Board v James Campbell EA-2020-SCO-000093-SH

Facts

The Claimant was engaged by the Respondent as a Phlebotomist. He was engaged on a part-time basis and worked shifts. The contractual entitlement afforded to him was a paid break of 15 minutes if the shift length was 6 hours. The Claimant worked 4 hour shifts in the week and 6 hour shifts at the weekend. He only received a paid break for the weekend shifts. Another part-time employee received a paid 15-minute break when working a 4-hour shift on a Friday. The Claimant brought a claim for less favourable treatment on the basis that a full-time employee would receive a break for all the shifts they worked. The Tribunal agreed and found that the treatment was less favourable because, by definition, part-time workers worked less hours. The Respondent appealed.

Held

The Respondent's appeal was successful. The EAT held that the Tribunal had erred in its approach to the question of whether the sole ground for less favourable treatment was because of the worker's part-time status. The Tribunal had conflated the separate issues of the total hours worked and the shift length and incorrectly applied a "but for" test to the question of less favourable treatment. Using the facts before the Tribunal and applying the correct test looking at why the Claimant was treated less favourably, the reason for the less favourable treatment was due to the particular shifts that were worked, not because he was a part-time worker. This was evidenced by the fact that he did get breaks when he worked 6 hours. The Tribunal had incorrectly come to the view that the difference in treatment was due to the Claimant being a part-time worker.

Gwynedd Council v Shelley Barratt and Other [2021] EWCA Civ 1322

Facts

The two Claimants were teachers at a school and were employed by the Respondent. As part of a reorganisation, the school was closed and a new school opened on the same site. All the teachers were told that their contracts would be terminated and that they would have to apply for a position at the new school. They were told that if they were unsuccessful, they would be made redundant unless redeployed. The Claimants were unsuccessful and made redundant.

The Claimants brought claims of unfair dismissal. The Tribunal accepted their claims and found that the redundancy process was unfair as it was conducted without consultation, the competitive interview process was not appropriate in a situation where teachers would be applying for the jobs they already had and the absence of an appeal procedure.

On the appeal procedure, the Tribunal held that it was only in "truly exceptional circumstances" that a right of appeal should be refused. The EAT agreed. The Respondent appealed on the basis that the absence of an appeal did not render the dismissal unfair.

Held

The Court of Appeal rejected the appeal. The Court of Appeal reiterated that it would be wrong to find an otherwise procedurally fair process unfair merely because of the absence of an appeal. The EAT's conclusion that the Tribunal was not applying a general rule that absent an appeal, a dismissal would be unfair was agreed by the Court of Appeal. The Tribunal had concluded that the lack of appeal was procedurally and substantively unfair and the Tribunal had been concerned with the procedures adopted and the lack of consultation as well as the inability of any employees to raise a grievance against the procedures. The Court of Appeal accepted that the Tribunal had applied a test of overall fairness and whether the Respondents decision was within the band of reasonable responses. The Tribunal therefore did not err in its approach.

Follows v Nationwide Building Society ET/2201937/18

Facts

The Claimant was employed by the Respondent as a Senior Lending Manager until they were made redundant. She was employed on a homeworker contract because the Claimant was a primary carer for her disabled mother. The Respondent was aware of this and accepted that the Claimant's mother was disabled for the purposes of the Equality Act 2010. Despite this, the Claimant worked in the office two to three days a week. A decision was made to reduce the number of Senior Lending Managers and to require the remaining mangers to be office based. This was based on the need to supervise junior staff and negative feedback from junior staff regarding the level of supervision.

The redundancy process began, and sufficient volunteers were available to cut the amount of managers. The Claimant did not volunteer and reaffirmed her desire to work from home. The Respondent asked some of the volunteers to stay on and dismissed the Claimant. One of the Claimant's colleagues was also dismissed who was on a similar homeworking contract to her, but without the caring responsibility. The Claimant brought claims in the Tribunal of unfair dismissal, direct and indirect associative discrimination on the grounds of disability and indirect age and sex discrimination.

Held

The Tribunal upheld the unfair dismissal, indirect associative discrimination and indirect sex discrimination. It rejected the claims of direct associative discrimination and indirect age discrimination. The direct associative discrimination claim was rejected on the basis that the treatment was based on her status as a homeworker, not her mother's disability. This was evidenced by her colleague’s dismissal. The claim for indirect age discrimination failed because of a lack of evidence that women aged 50-64 had proportionality greater caring responsibilities than younger women.

The claim for unfair dismissal was successful on the basis that the Respondent could not prove that the reason for dismissal was that the post was redundant, particularly due to the number of volunteers. Alternatively, the consultation was defective in that the Respondent did not engage with the Claimant's proposals to remain on her homeworking contract. The claim for indirect sex discrimination was successful as the Claimant was able to establish that women had care giving responsibilities than men and that the Respondent had not taken steps to avoid the disadvantage and were not proportionate. 

The associative indirect discrimination claim was successful. It was held that despite the language in section 19 of the Equality Act 2010, the impact of the ECJ's decision meant that it is sufficient for a person to show that they suffer a disadvantage, alongside a disadvantaged group. It was self-evident that requiring office presence would disadvantage someone with caring responsibilities for a disabled person. Because alternatives were not discussed and the Claimant's proposals were not engaged with, reasonable steps had not been taken by the Respondent to avoid this disadvantage. The Respondent argued that it had a legitimate aim in providing effective on-site managerial supervision, however the Tribunal rejected this as the need itself had a discriminatory element. Even if the aim was legitimate, it was not proportionate to dismiss her. The Tribunal was not persuaded it was a real need and the Respondent had not engaged with the notion that supervision could be achieved remotely or her previous history of successful supervision under her existing contract.

Simoes v De Sede UK Ltd EA-2019-001209-RN

Facts

The Claimant was instructed by the Respondent to cover one of her colleague's pre-booked holidays. The Claimant accepted but realised that this would mean that she took 14 consecutive days and breached regulation 11 of the Working Time Regulations. The Respondent refused to hire temporary cover and the Claimant provided the cover but was later dismissed by reason of her complaint. The Tribunal rejected her claim for automatic unfair dismissal under section 104 of the Employment Rights Act 1996 as she had made her complaint before the breach had occurred. The Claimant appealed.

Held

The EAT upheld her appeal. The EAT held that the instruction to work the shift pattern had infringed the Claimant's rights under regulation 11. It was not necessary for the shift to have been completed for the infringement to occur. This was not a situation of future or anticipated breach as the breach had occurred when she was instructed and reiterated when she raised her concerns. The Claimant would not need to wait until she had completed the rota for the infringement to occur.

 


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