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.
Radia v Marks [2022] EWHC 145 (QB)
Summary:
The HC held that a jointly-instructed expert witness giving evidence in a discrimination claim in the ET did not owe a duty of care to the Claimant to protect him from findings of dishonestly or questions as to his credibility.
Facts:
The Claimant brought a claim of disability discrimination against his employer, alleging discrimination, harassment and victimisation. The claim was comprehensively dismissed. There was a discrepancy between the Claimant’s statements as to his condition and the expert’s report. This discrepancy, amongst other things, led the Tribunal to find the Claimant to be dishonest. The ET went as far as to award costs against the Claimant of over £600,000.
The same Claimant then brought a claim for damages against the expert witness, who was jointly-instructed in the case.
Held:
The claim was dismissed. The expert did not owe the Claimant a duty of care to protect him against findings of dishonesty or questions as to his credibility.
In any event, the discrepancy between the Claimant’s statements and the expert’s reports was not the sole reason that the Claimant was found to be dishonest. Moreover, the finding of dishonest was not the ‘but for’ cause of the cost order. Accordingly, even if there was found to be a duty of care, which there was not, the claim would have failed on causation.
Warburton v The Chief Constable of Northamptonshire Police [2022] EAT 42
Summary:
The EAT held that the Shamoon test is the correct test to apply when determining whether a Claimant has suffered a detriment related to potential victimisation: ‘whether the treatment is of such a kind that a reasonable worker would, or might take the view that in all the circumstances it was to his detriment’.
Facts:
The Claimant applied to join Northamptonshire Police. In his application, he acknowledged that he was in the process of bringing a claim against Hertfordshire Constabulary for alleged unlawful discrimination.
Northamptonshire Police rejected the Claimant’s application. The reason given for the rejection was problems with the Claimant’s vetting. The Claimant alleged that his rejection was due to this ongoing claim against another police service. A claim which the Claimant asserted was a protected act. The Claimant brought a claim for victimisation on this basis.
Held:
The EAT held that the Tribunal had erred in its approach in determining that the Claimant had not suffered a detriment. The test that should be applied is ‘whether the treatment is of such a kind that a reasonable worker would, or might take the view that in all the circumstances it was to his detriment’. This test (taken from Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11) results in an intentionally broad interpretation of detriment. If a reasonable worker may consider it a detriment, that is sufficient. The Tribunal should not substitute its own view.
The EAT also held that the test for causation had been incorrectly applied at first instance. The correct test is whether the protected act had a significant influence on the outcome.
Frewer v Google UK Limited and others [2022] EAT 3
Summary:
The EAT held that the first instance Tribunal had erred when granting orders for the redaction and anonymisation of documents owing to concerns regarding commercially sensitive information contained therein.
Facts:
The Claimant brought proceedings for automatically unfair dismissal stemming owing to protected disclosures. These protected disclosures involved alleged anti-competitive practices.
The Respondent applied under rule 29 (case management orders) and rule 50 (privacy and restrictions on disclosure) of the Employment Tribunals Rules of Procedure 2013 for client names to be anonymised/redacted throughout the documents, including in the judgment, owing to their commercial sensitivity. The ET’s orders largely followed the Respondent’s application, and the Claimant’s initial application to have the anonymisation/redaction orders set aside was refused.
Held:
The EAT found that the Tribunal had erred in failing to have regard to Article 10 ECHR (freedom of expression) and Article 6 (fair trial) when making any anonymisation order. The ET had also failed to refer to rule 31 (disclosure of documents and information), which was relevant. There was also an important public interest in public hearings, open justice and the availability of information for press scrutiny, especially in light of the allegations of anti-competitive practices by a major technology company.
Hughes v Rattan [2022] EWCA Civ 107
Summary:
The Court of Appeal held that a dental practice owner was liable for alleged negligence of self-employed dentists.
Facts:
The Claimant alleged negligent dental treatment by three dentists on various occasions. It was accepted that one of the three dentists was an employee and that the Defendant (the practice owner) was vicariously liable for the treatment provided by their employee. The owner’s liability for the acts of self-employed dentists was disputed.
Held:
The CA applied the test set out by Lord Sumption in Woodland v Swimming Teachers Association and others [2014] AC 537 and found that the owner was liable for the acts and omissions of the self-employed dentists owing to a non-delegable duty. The antecedent relationship which existed between the Claimant and the Defendant, established when the Claimant signed their personal dental treatment plan, was important to the Court in finding that a non-delegable duty existed.
Whilst liable under the non-delegable duty, the Court of Appeal found that the test for whether a vicarious relationship existed (set out in Various Claimants v Barclays Bank Plc [2020] UKSC 13) was not met.
Guardian News & Media Ltd v Rozanov and EFG Private Bank Ltd [2022] EAT 12
Summary:
The EAT held that the ET should have ordered the Respondent to provide documentation to a journalist.
Facts:
The ET heard a whistleblowing case brought against a bank, relating to compliance issues and breaches of regulatory requirements.
Seven weeks after the judgment was handed down, a Guardian journalist request copies of the ET1, ET3, skeleton arguments and other documents from the case. The application was predicated on the ET decision being in the public interest due to the alleged compliance breaches.
The Claimant raised no objections to the application. The Respondent bank argued that the ET:
- was functus officio (had finished its task) and so had no basis for hearing the application;
- lacked the legal power to grant the application (ultra vires); and
- should not exercise any discretionary power to grant the application.
Only the third objection was advanced on appeal.
Held:
The EAT held that the Tribunal’s finding, that open justice was not strongly engaged, was fundamentally flawed. Press scrutiny and reporting of legal proceedings is a crucial element of open justice and the rule of law and there was a clear public interest aspect to the case. The Tribunal had already granted a limited rule 50 order, redacting/anonymising some documentation. This reduced countervailing privacy rights and confidentially concerns. The EAT’s discretionary power to grant the application was utilised on appeal.
Dodd v UK Direct Solutions Business Ltd and another EA-2021-000761
Summary:
The EAT upheld the first-instance decision to refuse to order the specific disclosure of documents sought by the Claimant to support her whistleblowing claim.
Facts:
The Claimant’s position was that she had made protected disclosures in relation to fraudulent furlough payments and mis-selling by her employer. The Claimant stated that: (1) she previously had sight of documents supporting her allegations; and (2) that other staff had alerted her to documentation evidencing her claim.
The Claimant’s application did not state which of the documents sought fell into which of the two categories. Importantly, many of the documents also post-dated her alleged protected disclosures.
Held:
The test for whether to grant an order for specific disclosure is whether the order is necessary for the fair disposal of the proceedings in accordance with the overriding objective.
The statutory definition of protected disclosure does not turn on whether the allegations are factually correct. The test is whether the worker making the disclosure had a reasonable belief that the information was true when making the disclosure. The relevance of the specific disclosure to this test is what is important in considering whether to grant an order.
The ET did not err in finding that the application for specific disclosure should have been more focused and should have provided an explanation as to why each category of disclosure sought was necessary.
Macken v BNP Paribas London Branch [2021] 10 WLUK 640
Summary:
The ET ordered the Respondent (a Bank) to pay compensation in excess of £2 million to a female employee who brought successful claims for equal pay, sex discrimination and victimisation. The Bank was also ordered to carry out an equal pay audit under the Equality Act 2010 (Equal Pay Audits) Regulations 2014 by 30 June 2022: the first time the ET has made such an order.
Facts:
The Claimant (a woman) was hired with a salary of £120,000. A male colleague started in the same role later that year with a salary of £160,000 (the ‘”Comparator”). Over five years, the Comparator was awarded bonuses of approximately £237,000. The Claimant’s bonuses over the same perioded amounted to around £33,000. The Claimant raised concerns as to the above, which the bank failed to address. The Claimant also alleged, amongst other things, dismissive comments by colleagues (including being repeatedly told ‘not now, Stacey’ by her boss) and an incident whereby a witch’s hat had been left at her desk.
Held:
The Claimant was successful in her claim of sex discrimination relating to the bonuses she was awarded. Whilst the bank sought to justify the difference in bonuses awarded on the basis of performance review, the ET found that the Claimant’s poor performance reviews were victimisation based on the breakdown of the working relationship with her manager.
The Respondent sought to establish the ‘material factor defence’ to justify the significant differences in bonuses awarded to the Comparator: the money was a necessary incentive to headhunt the Comparator and incentivise him to leave his previous employer. The Respondent’s defence failed. The Tribunal found that the pay differential was attributable to gender.
The ET also found that, in response to raising concerns around (un)equal pay, the Claimant was belittled by management and subject to hostile performance reviews. Such treatment constituted victimisation.
As part of a total compensation award of £2.08 million, the Claimant was to receive an equal pay award of £401,797 and £860,120 for future losses.
The Bank was also ordered to carry out an equal pay audit under the Equality Act 2010 (Equal Pay Audits) Regulations 2014 by 30 June 2022: the first time the ET has made such an order.
