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.
Hope v British Medical Association: EA-2021-000187-JOJ
Facts:
The Claimant worked as a Senior Policy Advisor for the Respondent. The Claimant brought a number of grievances against senior managers, none of which could be resolved at the informal stage. However, the Claimant declined to either withdraw or formally pursue any of the grievances, instead seeking to retain the ability to pursue them.
The Claimant chose not to attend the grievance hearing where the grievances were subsequently not upheld. This was despite being informed that his attendance was considered to be a reasonable instruction. The Respondent found that the Claimant’s conduct amounted to gross misconduct in that he had brought numerous vexatious and frivolous grievances and had refused to comply with a reasonable management instruction to attend the meeting. The Claimant was dismissed.
The Claimant issued proceedings claiming unfair dismissal. The Employment Tribunal (ET) found that his dismissal was fair and that it was reasonable for the Respondent to conclude that the Claimant’s conduct was vexatious and unreasonable. It also found that the conduct of the disciplinary investigation and process was reasonable. The Claimant appealed. The principle ground of appeal was that the ET had erred in failing to consider whether the conduct relied upon was capable of amounting to gross misconduct in the contractual sense and that the ET’s conclusions were perverse.
Held:
The Employment Appeal Tribunal (EAT) rejected the appeal. It said the real question is the statutory one of whether the employer acted reasonably in all the circumstances in treating the conduct as a sufficient reason to dismiss. The EAT found that the ET had not erred in its approach and that the test involved a consideration of all the circumstances, one of which might include the fact that the conduct relied upon involved a breach of contract amounting to gross misconduct.
However, there was no such contractual element in this case and an analysis on that basis was not required. The ET was entitled to conclude that the employer had acted reasonably in treating the reason for dismissal, namely the claimant’s conduct as described, as being a sufficient reason to dismiss in all the circumstances.
Burn v Alder Hey Children’s NHS Foundation Trust [2021]: EWCA Civ 1791
Facts:
The Claimant was a consultant paediatric neurosurgeon for the Respondent. The Claimant was responsible for the care of a child between 1 and 4 December 2017. A fellow surgeon performed an operation on the child’s brain on the evening of 3 December 2017. The child’s condition deteriorated, and a further operation had to be performed. The Claimant was the consultant on call at this time and was in communication with the surgeon by text and phone. A few days later the child died.
In early 2020 the Respondent commenced a formal investigation into the Claimant’s clinical decision-making in relation to the child’s care, amongst other things. The Claimant was restricted from all clinical duties pending its outcome. Under Maintaining High Professional Standards (MHPS), a doctor subject to an investigation is entitled to be informed of the allegations against them, to see a list of intended interviewees, to have the opportunity to put their view of events, and to see ‘any correspondence relating to the case’.
A dispute arose as to whether, for the purpose of the Claimant’s participation in that investigation, she should be supplied with copies of certain documents in possession of the Trust. The Claimant commenced proceedings in the High Court (HC) seeking an injunction restraining the Trust from concluding the investigation until she had been given the opportunity to have had sight of all documents relating to the investigation.
The Claimant brought an argument that under disciplinary investigation, a contractual right to sight of correspondence imposed on her employer a general duty of disclosure extending to all documentation relating to the investigation. The HC dismissed her claim. The Claimant brought an appeal challenging both the HC’s construction of MHPS and its conclusion on the implied term of trust and confidence.
Held:
The Court of Appeal (COA) upheld the HC’s refusal to grant the Claimant an injunction to prevent an NHS trust concluding an investigation before having interviewed the Claimant, having already had sight of all the Claimant’s relevant documents.
Of note in this case are the obiter comments expressed by Underhill LJ that there could be an implied duty of procedural fairness arising from the nature of an internal disciplinary process, separate from any duty derived from the implied term of mutual trust and confidence. Therefore, whilst the point was not decided, the COA observed that there may be an implied contractual obligation to conduct disciplinary processes fairly.
Judd v Cabinet Office: EA-2020-000468
Facts:
The Claimant had successfully applied for a secondment opportunity in Montenegro with the Respondent. However, the secondment opportunity was withdrawn following advice given to the Respondent that she would be at ‘high risk’ if seconded to Montenegro, as a result of her health. The Claimant brought claims for discrimination and failure to make reasonable adjustments.
The key issue under this claim was whether the withdrawal of the secondment opportunity was a proportionate step in the circumstances or whether the Respondent was required to adopt the course of permitting the Claimant to take up the secondment, but with mitigations and protections in place to safeguard her health, safety and wellbeing. The ET dismissed her claim.
Held:
The EAT upheld the ET’s findings that the withdrawal of a foreign secondment offer, following advice that it would risk the employee’s safety, did not amount to failure to make reasonable adjustments or discrimination arising from disability. The EAT held that withdrawing the secondment offer was a proportionate means of achieving the legitimate aim of protecting the health and safety of secondees working abroad, and no lesser measures would have achieved that aim.
The Claimant’s arguments that the ET had misdirected itself, or had failed to consider certain reasonable adjustments, or other factors relevant to the proportionality analysis were dismissed by the EAT as they were insufficient to undermine the ET’s essential reasoning. The Claimant would continue to be at risk if she went to Montenegro and the Respondent was entitled to act so as to avoid that risk.
Rainford v Dorset Aquatics Ltd: EA-2020-000123
Facts:
The Claimant and his brother were co-directors of and 40/60 shareholders in the Respondent, which was a small family company. The Claimant worked primarily as site manager but also chose to take on responsibility for marketing the company and its website and social media. He decided his own hours of work and there was no control by his brother or the company over how he carried out his work. He took holidays when he wished subject only to co-ordinating with his brother.
The brothers were paid an equal salary agreed between them regardless of how many hours were worked, and had PAYE and NI deducted/paid in respect thereof. The ET found this was done on the advice of company accountants for tax reasons without any positive input by either brother. They also agreed between them on the amount of dividends to be paid at the end of the year in accordance with their shareholdings. There was no written employment contract or other record relating to the Claimant’s status.
In June 2018 a dispute arose, and the Claimant brought tribunal claims for unfair dismissal, notice pay, unlawful deductions and holiday pay. It was held that the Claimant was not an employee or otherwise a worker for the purposes of s230 of ERA 1996 and that his claims were therefore unsustainable.
Held:
The EAT rejected the Claimant’s appeal stating that the decision that the Claimant was not an employee or worker was one of fact based on relevant factors and was not perverse. The EAT held:
- Although there is no reason in principle why a director/shareholder of a company cannot also be an employee or worker, it does not necessarily follow that simply because he does work for the company and receives money from it, he must be one of the three categories of individual identified in s 230(3);
- It had been open to the EJ to find that the Claimant had a right to substitute another to act as site manager in his place based on the brother’s evidence at the hearing that he would have no problem with that and notwithstanding that the issue never arose in practice;
The EJ had not made the error of regarding the Claimant’s status as a director and/or shareholder as being mutually exclusive with status as an employee. The level of the Claimant’s control over the company and the fact that he shared with his brother in the risk as to the company’s success were referable to his status as a director/shareholder and not directly relevant to the question whether he was an employee or worker, but they formed part of the “backdrop” and had not had any significant influence on the EJ’s decision.
Stojsavljevic and Turner v DPD Group UK Ltd: EA-2019-000259
Facts:
Both Claimants worked for the Respondent between 2013-2017 and had entered into the Respondent’s standard form written franchise agreement. The Claimants argued that the reality of the franchise agreement was that they had been contracted as individual drivers and that the franchisor’s oversight in vetting drivers employed by the franchisee could “suggest a degree of control beyond that of an individual carrying on business in their own capacity”.
The Claimants had three grounds of appeal. Firstly, that the ET had misconstrued the parties’ contractual obligations, secondly that they had failed to take into account that s18 of the operating manual, and thirdly that they had failed to take account of relevant matters, or give adequate reasons, when finding that the franchise agreement represented the genuine agreement between the parties.
Held:
The EAT dismissed all grounds of appeal holding that the ET had correctly analysed the contractual obligations between the parties, consistent with the principles set out in case law. The EAT upheld the ET’s decision that neither Claimant had been either an employee nor a worker for the purposes of the ERA 1996 or the Equality Act. The EAT concluded that a genuine right of substitution which is inconsistent with personal performance is inconsistent with both employee and worker status, and thus the Tribunal was right to determine the preliminary issues which were before it in favour of the Respondent.
X v Y (Case number 2413947/2020)
Facts:
X decided not to return to her workplace on 31 July 2020 because of her concerns about Covid-19. Her husband was at high risk of getting seriously unwell from Covid-19. She told her employers that she was worried about the increasing spread of the virus and feared she would get it and pass it onto her husband. She claimed her workplace posed a serious and imminent danger to her and others under s100(1)(d) of the ERA 1996. Her employers withheld her wages, and she brought a number of claims in the tribunal.
Held:
The tribunal held that the Claimant’s belief in a fear of catching Covid-19 and a need to protect herself and others, does not amount to a philosophical belief for the purposes of section 10(2) Equality Act 2010.
This is a first instance decision only but is interesting as it is the first case we are aware of where an employee has alleged that fear of catching Covid-19 is a protected belief under the Equality Act.
Fitzmaurice v Luton Irish Forum: EA-2020-000295-RN
Facts:
The Claimant was an Advice and Outreach Welfare Advisor, and latterly a Welfare Caseworker for the Respondent. The Claimant raised a number of health and safety concerns in 2014, and again in 2016 and 2017. In 2017 the Claimant also raised concerns during the course of a grievance hearing.
The Claimant claimed that the disciplinary proceedings were instigated and continued on the grounds that she had made protected disclosures, and that her treatment involved a fundamental breach of her employment contract, in response to which she had resigned, and so had been constructively dismissed.
The Claimant resigned and claimed whistleblowing detriments and constructive dismissal after facing disciplinary action.
The tribunal held that disciplinary proceedings were brought for three reasons, only one of which was related to protected disclosures, and that protected disclosures were not the cause of disciplinary action, and dismissed the detriment claims. The ET therefore dismissed her claims stating that there was no connection between the public interest disclosures found by the ET and the disciplinary procedures.
The Claimant appealed on the basis that the ET misapplied the test for determining whether the instigation and continuance of the disciplinary proceedings was done on the ground that the Claimant had made protected disclosures and/or that the determination that the making of the protected disclosures was not a reason for instituting the disciplinary proceedings was perverse. The Claimant contended that the errors in respect of causation in the protected disclosure claims had knock-on effects in respect of the claim of constructive unfair dismissal.
Held:
The EAT upheld the Claimant’s appeal. The ET erred in its approach to causation in the protected disclosure detriment claim and failed to properly analyse whether the making of the protected disclosures was properly severable from ancillary matters. A tribunal should consider if disclosure was a material factor in the detrimental treatment, rather than the cause of it and the ET had not properly directed itself on the dividing line between the making of a protected disclosure and the manner in which the disclosures were made.
Wells Cathedral v Souter: EA- 2020-000801-JOJ
Facts:
The Claimants, Souter and Leishman, were husband and wife. Souter worked as head of strings and a music teacher, and Leishman worked as a visiting violin teacher. In 2016 Leishman was diagnosed and treated with cancer. Leishman was subject to an informal capability process in 2018.
Both Claimants alleged that a campaign had been waged against them, and after a subject access request, Leishman claimed she had copies of internal emails that demonstrated there had been a plan to undermine her and her husband. Leishman presented an internal grievance which was not upheld, soon after which she resigned.
Souter claimed that following a bereavement in September 2017, he was forced against his wishes to take compassionate leave, and subsequently put on an informal capability programme on the basis of alleged complaints by students. Souter was signed off work with stress from January 2018 and presented his own grievance in July. In April 2019, Souter was informed that the panel appointed to consider his grievance had withdrawn and were not going to make a decision on it. Souter then resigned. Both Souter’s and Leishman’s claims were out of time.
Case management hearings identified that there was a time point in both cases which turned on whether the tribunal considered it just and equitable for a primary time limit of greater than three months to be applied in respect of any or all of the claimants’ Equality Act claims. The ET held that it was just and equitable to extend time in respect of the presentation by the claimants of their respective claims.
Held:
The EAT upheld the decision of the ET and held that the ET did not err in deciding that it was just and equitable to extend time in respect of the presentation by the claimants of their respective claims, in all the circumstances of their particular cases.
It was held that a tribunal can extend time in a discrimination claim where the claimants have waited to issue proceedings whilst pursuing grievances. However, this will not always be the case.
A balancing exercise is required for the just and equitable test. In this case the judge found that three factors weighed against the Claimants (1 to 3) whereas two were in their favour (4 and 5). The last two carried more weight.
Despite this judgment the mere bare fact that a grievance has been initiated is not automatically enough. It is open to different tribunals to reach different decisions based on the wider context
