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.
Brightman v TIAA Limited UKEAT0318/19
Facts
The Claimant was employed as a principal auditor providing services to the NHS throughout the UK. During her employment, the Claimant suffered with various long-term health issues including severe brittle asthma, a blood clotting problem and a slipped disc.
The Claimant was dismissed by reason of capability based on the available medical evidence, the fact that no further reasonable adjustments were possible, and that the level of absence – which was 35% at the time – would not improve.
The medical report relied upon, was completed in December 2015 and the occupational health report was based on a consultation from six months earlier. However, the Claimant worked throughout the dismissal and appeal process, and was under the care of a new medical team.
The Claimant brought various claims including unfair dismissal, failure to make reasonable adjustments and discrimination arising from a disability.
These claims were dismissed by the tribunal. It had relied upon medical evidence from the Respondent (post-dating the dismissal) which suggested that the Claimant’s absences would have continued for a further 12 months after the disciplinary process concluded.
Decision
The Employment Appeal Tribunal (EAT) concluded that the tribunal had incorrectly relied on the medical evidence that post-dated the dismissal to fill an “evidential gap” in deciding whether it was fair. This included unfairly criticising the Claimant for not obtaining medical evidence despite this being for legitimate cost management purposes agreed by the case management judge.
The EAT also concluded that the tribunal erred in its consideration of the post-termination medical evidence when considering the reasonable adjustments claim. In respect of the claim for discrimination arising out of disability, the tribunal had concluded that the Respondent had a legitimate aim of running an efficient business which proved problematic due to the Claimant’s unpredictable absences. However, the EAT held that the tribunal did not carefully scrutinise the justification defence which was an error of law.
Hughes v Progressive Support Limited UKEAT/0195/20
Facts
The Claimant was employed as a support worker by the Respondent who provides support services to adults with disabilities on a 24/7 basis. The Claimant returned from a period of maternity leave, and it was agreed with the Respondent that they would be allocated hours of work that accounted for the Claimant’s childcare commitments.
After the Respondent became aware that the Claimant was working elsewhere during the periods where it was thought the Claimant had childcare commitments, the allocation of hours around the Claimants’ childcare needs stopped and reflected the Respondent’s service need. This change meant that the Claimant was unable to fulfil all the hours allocated.
The Claimant was not penalised but lost out on pay under her guaranteed hours contract. Later, the Respondent indicated that the Claimant would be put on a zero-hours contract if the Claimant was not fulfilling the guaranteed minimum hours in her contract. This was eventually resolved when the Claimant and Respondent agreed that she would return to the previous arrangement of working hours around her childcare commitments.
However, the Claimant lodged a claim in respect of the period where she was offered hours based on service need, not her childcare commitments. It was claimed that this was a provision, criterion or practice (PCP) applied to the Claimant which amounted to indirect discrimination as the Claimant was required to work whatever hours the Respondent allocated. The tribunal rejected this claim reasoning that as the Claimant was not penalised for not working the hours offered, she was not subjected to a requirement to work and therefore not subjected to a PCP. The Claimant appealed.
Decision
The Claimant’s appeal was allowed by the EAT. It held that a PCP had been imposed as, in order to work her full hours’ entitlement, the Claimant was required to work whichever hours allocated, irrespective of her childcare commitments.
The tribunal had erred in looking retrospectively for a sanction for not working all the hours offered, rather than the fact the Claimant had lost out financially in not being able to fulfil the full guaranteed hours. Moreover, it was not in dispute that when the Claimant was unable to fulfil the hours required, the Respondent had suggested moving her to a zero-hours contact which would have resulted in the Claimant losing her guaranteed minimum hours.
The EAT has remitted the case to a new tribunal to decide whether this PCP gave rise to a particular disadvantage for female employees and whether, irrespective of any disadvantage, the PCP is objectively justified.
Steer v Stormsure Ltd [2021] EWCA Civ 887
Facts
The Claimant was employed by the Respondent for four months before she was dismissed. The Claimant alleged she was subject to sexual harassment and presented a grievance saying her allegations had not been investigated. She also requested to work from home to safeguard herself. This was allowed but subject to installing a screen-shot monitoring software.
A month after raising her grievance, the Claimant was notified that her working hours were to be reduced by 60% because of her childcare responsibilities. The Claimant contends that this unilateral change was akin to express dismissal or alternatively that she was constructively dismissed and that this amount to sex discrimination and victimisation for protected acts.
The Claimant brought a claim at the tribunal seeking interim belief, not only for a whistleblowing claim (which was eventually dropped), but for the sex discrimination/victimisation claims. The tribunal stated that it did not have jurisdiction to grant interim relief for sex discrimination/victimisation claims.
The Claimant appealed to the EAT which held that the absence of interim relief was a breach of Article 14 of the European Convention on Human Rights (prohibition of discrimination) but the EAT could not read into the Equality Act 2010 a right to claim interim relief, nor could it declare the Act incompatible with the Human Rights Act 1998. Because of this, the EAT granted leave to appeal to the Court of Appeal which would have the power to make such a declaration.
Decision
The appeal was dismissed on the basis that the Claimant was unable to establish a breach of Article 14. The Court agreed with the EAT that the fact that interim relief exists for whistleblowers but not for those who claim discrimination does not constitute discrimination on the grounds of sex. However, the Court disagreed with the EAT’s finding of a breach of Article 14 on the basis that the existence of a remedy in one cause of action (where claimants are roughly equally split between men and women) does not mean that the unavailability of this remedy for an action predominantly brought by women is differential treatment. The alternative finding would lead to a comparison between “every form of litigation brought approximately equally by men and women with sex discrimination claims.”
This was sufficient to dismiss the appeal, but the Court went on to consider whether a breach argument would have succeeded had the Court found a difference in status. Whilst not commenting on whether a discrimination and whistleblowing claimant would be in an “analogous situation”, the Court found that the absence of interim relief was not “less favourable treatment” as the remedies available for discrimination/victimisation have both procedural and financial benefits compared to the unfair dismissal/whistleblowing regime.
In any event, the Court found that any less favourable treatment would be justified based on Parliament’s purpose in limiting interim belief to a particular type of claimant. Had Parliament wanted to change this, it would have done so, and it was not for the Court to make this substantial change – which would alter how the tribunal system currently operates.
A v B UKEATS/0042/19
Facts
The Claimant was employed as a speciality doctor at an NHS Trust. The Claimant is Indian and an observant Hindu. The Claimant, during the course of her employment had an intimate relationship with a senior colleague. The Claimant suspected that the same senior colleague was having an intimate relationship with a junior doctor. It was alleged that the Claimant assaulted the junior doctor. Disciplinary proceedings were commenced against the Claimant by the Respondent and the Claimant was dismissed on the ground of gross misconduct.
Claims were brought by the Claimant for unfair dismissal and that she had been the victim of sex and religious discrimination. As tribunal proceedings continued, the Claimant sent numerous emails to the senior colleague, another Trust witness and the Trust’s solicitor. These emails contained various allegations including bullying, harassment, unprofessional conduct, attempted manslaughter, misuse of public money and allegations of sexual harassment to the Respondent’s solicitor. The Respondent made an application to strike out the claim.
The tribunal refused to strike out the claim, but accepted the emails were not appropriate. The tribunal instead chose to impose numerous orders to control the Claimant’s correspondence. The Claimant ignored these orders and continued to send inappropriate emails.
The Respondent made a second application to strike out the claim. The tribunal agreed this time finding that the emails were “scandalous, unreasonable and vexatious”, had intimidated witnesses, been in breach of the orders made after the first hearing and had made the possibility of a fair trial impossible. The Claimant appealed to the EAT.
Decision
While the EAT noted that two of the emails were sent before the orders were received by the Claimant and these should not have been regarded during the application, the EAT upheld the decision to strike out the claim. It held that the Claimant had continued to breach the orders requiring her to communicate politely and that the tribunal was correct to conclude that they could have no confidence that she would control her email correspondence in the future.
Moore Stephens LLP v Parr UKEAT/0238/20
Facts
Mr Parr was an equity partner at a firm of accountants, the Respondent. The LLP Members’ Agreement provided for discretion in extending the normal retirement age of 60 on terms determined by the managing partner. The Respondent did this on the Claimant’s wishes, extending his retirement date beyond two years as an ordinary partner. Later, the Claimant became aware that there were proposals to sell the business and that he would not be entitled to any proceeds as a non-equity partner. The Claimant brought a claim for direct age discrimination. The Tribunal held that the claim was brought in time on the basis that his demotion was on the basis of a rule applied which was “conduct extending over a period”. The Respondent appealed.
Decision
The Respondent’s appeal was allowed on the basis that this was not “conduct extending over a period”. Instead, the act – which was complained about – was the one-off exercise of discretion to continue the Claimant’s membership of the LLP, which resulted in the Claimant’s status of partner changing. This was not the continuing application of a rule or policy that was discriminatory. The case was remitted to the tribunal to consider whether the time limit for bringing the claim should be extended.
