Our legal team has compiled a rundown of employment law cases – including the background and decisions made – that HR and employee relations professionals should be aware of.
Beware of possible victimisation claims when primary claim fails
McQueen v The General Optical Council
Overview: This Employment Appeal Tribunal serves as a reminder that where an employee makes a complaint of discrimination, and even if the employer does not believe the complaint has merit, it can still be held liable for victimisation, based on the way in which it handled the complaint.
Facts: In the case of McQueen v The General Optical Council, Mr McQueen faced disciplinary action for behaviour which he claimed arose out of his disability. While his primary claim of disability discrimination under the Equality Act (Section 15) was unsuccessful on appeal to the EAT on the basis that his behaviour did not ‘arise from’ his disability at all, he did succeed in his claim of victimisation. Victimisation claims cover situations where an employee is treated unfavourably for raising an issue related to a protected characteristic. In this instance, the mishandling and “passive failure” to do anything about Mr McQueen’s grievance, which related to a protected characteristic (his disability) caused Mr McQueen distress for over a year.
Decision: The tribunal ordered the General Optical Council to pay compensation, mostly for injury to feelings, of £22,680. But some of it was for an ‘Acas uplift’, which is awarded if an employer fails to follow the Acas Code of Practice on Disciplinary and Grievance procedures.
Take-away: Victimisation claims often succeed independently, even when the main claims fail, as seen in this case. The Acas uplift provides an easy ‘win’ for claimants and a punitive increase in liability for employers. Employers can safeguard themselves by promptly and comprehensively conducting grievance and disciplinary investigations, adhering to their policies and the Acas Codes. Remember that if procedural errors occur during the disciplinary or grievance process, they can often be rectified through an appeal.
Is an employee’s resignation in the heat of the moment valid?
Mrs Cope v Razzle Dazzle Costumes Ltd
Background: In a recent case of Mrs Cope v Razzle Dazzle Costumes Ltd, following a heated discussion at work, Mrs Cope said “I’m done” and left the premises. She later submitted a sick note. Her employer interpreted her statement as resignation from the company. Consequently, she brought a claim of unfair dismissal.
Facts: The tribunal held that Mrs Cope had not officially resigned. They considered the circumstances surrounding Mrs Cope’s statement of “I’m done” (a tense meeting), taking into account her anxious state and her subsequent actions of submitting a sick note, which were not consistent with having resigned.
Take-away: This case highlights the importance of employers exercising caution when treating an employee as having resigned. Make sure to consider the following:
- Clarity and ambiguity: If the resignation is clear, unambiguous, and not influenced by emotional or highly charged circumstances, it can be accepted immediately. Once accepted, the resignation will stand, unless you agree to retract it.
- Surrounding circumstances: Take into account the surrounding circumstances, any ambiguity in the employee’s words, and whether it could be deemed as an impulsive reaction in the heat of the moment. If there are concerns that the employee’s possible resignation was made in anger or without careful thought, the law says you should give the employee a cooling-off period in which to reflect on their decision before accepting it. This only need be a few days maximum.
Laughing at an employee who fell over not found to be harassment
Perera v Stonegate Pub Company Ltd
Background: The law relating to harassment can be a minefield for employers due to the fact that it focuses on the subjective effect of the conduct on that particular complainant and not the objective nature of the conduct to a reasonable bystander. This can make it hard to defend a claim for harassment where the particular effect of that conduct on that complainant must be taken into account.
Fact: The recent Employment tribunal decision in Perera v Stonegate Pub Company Ltd offers some solace to employers. In this case, it was held that an employer who laughed at an employee who fell over at work had not harassed them on racial or religious grounds.
Decision: The Judge said that the “slapstick element” of someone falling over was likely to cause laughter. To be regarded as harassment it had to have the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee. Applying this test, the Judge found that: “The conduct itself, objectively, came nowhere near having the proscribed effect, and [the employee’s] view of matters was unreasonable.” He found that, although the employee’s perception had to be taken into account, the test was not satisfied merely because the employee thought it was.
New proposed positive duty on employers to prevent sexual harassment
Allay (UK) Limited v Mr S Gehlan
Overview: The current law on harassment, in particular sexual, states that employers will be liable if an employee suffers sexual harassment in the workplace unless they can show that they have taken all reasonable steps to prevent the harassment from occurring. Navigating the reasonable steps defence is difficult. Employers are advised to focus on keeping their training up-to-date and creating a workplace culture where harassment of any form is not tolerated. However, there are limited instances in case law where this defence has been successfully argued.
Fact: In the case of Allay (UK) Limited v Mr S Gehlan in 2021, the Employment Appeal Tribunal found that providing equal opportunities training to the employee responsible for harassment approximately twenty months prior to the incident did not qualify as ‘reasonable steps’ taken by the employer. The training was deemed as ‘stale’. This highlights the significant responsibility on employers to consistently maintain training and cultivate a supportive workplace culture in order to rely on this defence.
Proposal: Changes to the proposed Worker Protection (Amendment of Equality Act 2010) Bill will result in more significant consequences for failing to prevent harassment (or to demonstrate that reasonable steps have been taken to prevent it). If passed, the Bill will place a new positive duty to prevent sexual harassment on employers. This new duty will be enforceable by an Employment tribunal where it has first upheld a claim for sexual harassment.
A tribunal will also have a discretion to award a ‘compensation uplift’ by increasing any compensation it awards for sexual harassment by up to 25% where there has been a breach of the employer duty.
If they become law, these changes would place a greater burden on employers defending sexual harassment claims. They will need to clearly consider how to cultivate a positive workplace culture, provide appropriate training, and implement effective preventative measures.
