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.
Mendy v Motorola Solutions UK Ltd [2022] EAT 47
Summary
A Tribunal may not use case management orders at a closed preliminary hearing as a de facto strike out of a claim.
Facts
The Claimant brought claims for indirect discrimination, amongst other things, on four separate ET1s relating to his employment with the Respondent. The Tribunal ordered that these claims be consolidated and heard together. The Claimant followed these orders and filed a consolidated grounds of complaint.
At a private case management hearing, the Judge found that the Claimant had “no discernible claim of indirect discrimination” and that the claim could only proceed if a successful application to amend was made.
The Claimant appealed, asserting that part of his claim had effectively been struck out and that it had not been struck out in public (contrary to rule 56 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013) and that he had not been given reasonable opportunity to make written representations or request a hearing (contrary to rule 37(2)).
Held
The EAT set the ET’s order aside. As the case management orders were tantamount to striking out a claim, the procedural safeguards should have been followed. As part of the claim was effectively determined, the order was to be understood as a judgment and could not be revoked in exercise of the case management powers. However, the Tribunal could have exercised its power of reconsideration (rule 70).
Ali v Heathrow Express and Redline Assured Security Ltd [2022] EAT 54
Summary
The Claimant’s perception of the Respondent’s conduct is just one of many ‘features of the circumstances’ when considering whether such conduct constituted harassment for the purposes of the Equality Act 2010.
Facts
The Claimant worked as a member of Heathrow airport’s security staff. Occasionally, the Respondent sought to test their workforce’s responses to a suspicious objects. In this instance, the suspicious object chosen was a box, some electrical cabling and a piece of paper with “Allahu Akbar” (“Allah (God) is the greatest”) written in Arabic.
The results of the test, along with images of the object with the Arabic note, were circulated to the Respondent’s workforce, including the Claimant. The Claimant, a Muslim, brought a claim of harassment, amongst other claims, to the Employment Tribunal.
The harassment claim failed. The Tribunal held that it was not reasonable for the Claimant to perceive the Respondent’s conduct as falling within s26(1)(b) Equality Act 2010. In using the phrase, the Respondent was held not to be attempting to associate terrorism with Islam. Rather, the phrase was picked as owing to recent incidents faced by airports. The Claimant appealed.
Held
The EAT rejected the appeal. The first instance decision was neither perverse nor insufficiently reasoned. Rather, the Claimant’s perception of the Respondent’s conduct was just one of many ‘features of the circumstances’ when considering whether such conduct constituted harassment for the purposes of the Equality Act 2010.
Craig v Abellio [2002] EAT 43
Summary
The ET had erred in its failure to apply the last straw doctrine as relates to constructive dismissal to the Claimant’s case.
Facts
The Claimant was a bus driver. When on sickness absence, he was paid less sick pay then that to which he was entitled. The Claimant made use of the Respondent’s grievance procedure. The Claimant’s internal appeal resulted in the Respondent agreeing to pay him in excess of £6,000 back pay. The Respondent failed to do so by the agreed date. The Claimant resigned, asserting the failure to pay the agreed sum by the agreed date to be ‘the last straw’ (constructive dismissal).
At the first hearing, the Tribunal found the missed deadline for providing the back pay to have been an administrative oversight on the Respondent’s behalf. The ET held that the back pay issue had been sufficiently addressed by the grievance procedure. There had been no repudiatory breach of contract and no ‘last straw’. The Claimant appealed.
Held
The EAT allowed the appeal. The ET had failed to direct itself as to the legal principles of the last straw doctrine at first instance and had not properly considered the factual bases underling the claim. The constructive dismissal claim was remitted to a newly constituted ET.
Allen v Primark EAT [2022] 57
Summary
Tribunals must consider the precise nature of the PCP which the Claimant is seeking to establish as the basis for indirect discrimination under the Equality Act 2010. Failure to do so may lead to the ET erring in the construction of the comparison pool.
Facts
The claimant was due to return to work as a department manager following maternity leave. In advance of her return, she made an application for flexible working to accommodate her childcare responsibilities. As a manager, the Claimant was required to guarantee her availability for night shifts. The Respondent narrowed this down to late shifts on a Thursday. Nonetheless, the Claimant argued that this placed her, as a woman with childcare responsibilities, at a disadvantage.
The Respondent would not accommodate all of her requests. The Claimant resigned, bringing claims for constructive dismissal and indirect discrimination.
The ET included in the pool of comparators two male colleagues. Notably, it was accepted by the Respondent that the male comparators had an implied contractual right not to work Thursday late shifts. The male colleagues only worked Thursday late shifts in emergencies.
At first instance, it was held that the Claimant had not established that women were placed at a disadvantage when compared to men, as the provision, criterion or practice (PCP) impacted two men and one woman. Hence, the Respondent was not required to show that the PCP was justified.
Held
The President of the EAT, Mrs Justice Eady, allowed the appeal. The EAT found that the ET had erred in their construction of the pool for comparison by failing to properly engage with the PCP. The Claimant was not being ‘asked’ to work Thursday late shifts. Rather, the Claimant was being required to guarantee her availability to do so. As the male comparators were not subject to this availability requirement, their situation was materially different.
The decision was set aside and the case remitted.
Lutz v (1) Ryanair DAC and (2) MCG Aviation Ltd ET/3201452/2020
Summary
The Claimant pilot was a worker of MCG Aviation Ltd (MCG), who organise Ryanair’s pool of ‘contracted’ pilots, and an agency worker of Ryanair. That MCG set up a service company for the Claimant did not make him self-employed.
Facts
Following his successful application to Ryanair to work as a pilot, the Claimant was passed to MCG. MCG set up a service company to have Mr Lutz operate as self-employed. MCG then entered into a five-year fixed-term contract with said service company. All the work was exclusively for Ryanair. The Claimant ‘or an agreed acceptable and qualified nominated substitute’ would perform the work.
Held
The Tribunal held that the Claimant was supplied to Ryanair as an agency worker by MCG (the intermediary).
It was found that Claimant was not in business on his own account. Nor was the Claimant an employee of Ryanair. The Claimant was not a shareholder, director nor an employee of the new service company. Ryanair did not contract with the service company.
Agency work must be temporary. The ET held that the five-year fixed-term contract between the service company and MCHH was not indefinite and therefore temporary.
The Tribunal determined that the Claimant had a contract with MCG provide personal service. Whilst the Claimant could swap shifts, permission was required and only another Ryanair pilot could work in the Claimant’s place. This was not found to amount to a right to substitution. Rather, this simply rearranged the date and time of personal service. Attempts in the documentation to obfuscate the requirement for personal service was held to be a scam.
Ryanair also rostered his flights and required that the Claimant wear their uniform. This decision may have far reaching consequences for the aviation industry, particularly ‘self-employed’ pilots and those airlines that use their services.
White v HC-One Oval Ltd [2022] EAT 56
Summary
That the Claimant had volunteered for redundancy did not mean that her claim for unfair dismissal had no reasonable prospects of success. The claim should not have been struck out.
Facts
The Respondent was carrying out redundancies across those employees with administrative and receptionist roles. The Claimant was provisionally selected. She went on to request voluntary redundancy. This request was accepted by the Respondent.
Post-termination, the Claimant brought proceedings for unfair dismissal, alleging, amongst other things, that:
- For a period during her employment, she was required to fulfil additional duties without extra pay;
- During the redundancy process, (potentially) suitable alternative work had become available for the Respondent, yet the Claimant was not made aware of this;
- A full-time receptionist was hired after the two part-time receptionists were dismissed following the redundancy process. The Claimant alleged that the redundancy process was a sham orchestrated to achieve this end.
The ET at first instance struck out the claim, holding that the Claimant had no reasonable prospect of success following her voluntary redundancy request.
Held
The EAT held that the factual dispute here was not suitable for summary determination. The Tribunal had erred in finding that the claim had no reasonable prospect of success. If the Claimant’s version of events were accepted, the decision maker may have considered matters outside of the Claimant’s request for voluntary redundancy in making the decision to dismiss. Moreover, the Claimant alleged that the redundancy situation was a sham. Alternatively, if the Tribunal were to accept the Respondent’s reason for dismissal, the procedural fairness of the redundancy would still need to be assessed. The case was remitted to be considered by a different judge.
Baker and others v Post Office Ltd ET/1402149/18
Summary
It was held that postmasters were not workers for the purposes of the Working Time Regulations 1998 (WTR) as they could not demonstrate the requirement of personal service.
Facts
120 postmasters claimed that they were workers and therefore entitled to holiday pay under the WTR. A sample of 10 of the 120 postmasters were selected to determine the preliminary issue of worker status.
Some facts indicated that the postmasters were in a position of dependence on and subject to the control of the Post Office. Prescriptive rules governed how and where products could be sold and the terms of postmasters’ contracts were set by the Post Office without negotiation between the parties.
These contracts stated that personal service was not required, but the postmasters argued that this was a sham.
The ET made important findings of fact on the requirement of personal service in this case:
- Postmasters frequently delegated to assistants. The Post Office did have a limited veto, however, this was simply to ensure that the assistants were capable of performing their role. Whilst some postmasters voluntarily offered personal service, this was not required.
- Postmasters were responsible for ensuring that services were provided. However, as such services could be provided by themselves or an assistant, this responsibility did not amount to personal service.
- The requirement that branches be open during certain hours was consistent with a service being provided on its behalf. Postmasters were not required to work these hours themselves.
- Postmasters were not required to undergo training and the only effective disciplinary method was for the Post Office to terminate their contracts.
Held
The was no requirement for postmasters to provide services personally. Accordingly, they were not workers for the purposes of regulation 2(1) WTR 1998.
Knightley v Chelsea & Westminster Hospital NHS Trust [2022] EAT 63
Summary
An employer’s failure to make reasonable adjustments when dismissing a disabled employee does not necessarily render that dismissal unfair?
Facts
The Respondent dismissed the Claimant on grounds of capability. The Employer’s refusal to extend the time available to the Claimant to appeal against the decision was found to be a failure to make a reasonable adjustment. Did this finding necessarily render the dismissal unfair.
Held
The EAT held that the dismissal was fair overall. On the facts, the appeal would not have affected the fairness of the dismissal. The dismissal was also proportionate and so the section 15 Equality Act 2010 claim failed.
