May 2022 Bulletin

Welcome

Employees have the right not to be unfairly dismissed. For a dismissal to be fair, an employer must show that they have a potentially fair reason to dismiss – such as conduct or redundancy – and that they acted reasonably in treating that reason as sufficient for dismissing the employee. Redundancy means that the employer has a reduced need for people to do work of a particular kind. Case law has shown that accepting voluntary redundancy can still create a dismissal because the employee is agreeing to be dismissed for redundancy rather than agreeing to terminate their contracts. The EAT has looked at a case recently where the employment tribunal struck out an unfair dismissal claim based on voluntary redundancy for having no reasonable prospects of success.

In White v HC-One Oval, the claimant was one of two part-time receptionists at a care home. Another receptionist was recruited in June 2018. At this time, the claimant had been covering some of the deputy manager’s administrative work while she was off sick but continued to be paid at her receptionist (lower) rate of pay. She raised a grievance about this in July 2018. In September, a redundancy consultation began, putting the two part-time receptionists (including the claimant), the new receptionist and the deputy manager in the pool. The claimant was provisionally selected for redundancy. The employer said they offered her the administrative role on a job-share basis, but she turned it down and then asked for voluntary redundancy. The claimant disagreed – she said the role had been offered to her only on the lower ‘receptionist’ rate of pay, and that the redundancy process was unfair and was a sham that had been brought about in order to replace two part time receptionists with one full time member of staff. The claimant’s employment terminated in October 2018. The ‘new’ receptionist, who had no childcare responsibilities, was kept on to do an administrative and reception role on a full-time basis. The employee brought an unfair dismissal claim. She said she had only accepted voluntary redundancy because she wasn’t offered the administrative role. She said it was relevant that the person who secured the role was only recruited shortly before the redundancy exercise started.

The employment tribunal struck out the claim at a preliminary hearing. The judge said that the issues the claimant wanted to raise about events which preceded her employment ending were relevant to a constructive dismissal claim which she chose not to pursue, instead opting to take voluntary redundancy. He said that a claim based on what happened before she accepted voluntary redundancy was ‘fundamentally flawed’ and he struck it out.

The EAT held that a voluntary redundancy can still give rise to a dismissal and therefore an unfair dismissal claim. That meant that in this case the process leading up to that dismissal was relevant in relation to its fairness. In order to strike out a claim, it must be clear that it has ‘no’ prospects of success. Cases where the central facts are in dispute should in generally not be struck out. It was not clear that the employer would be able to show that the reason for dismissal was redundancy, precisely because the facts were disputed. In considering strike out, the tribunal must consider the employee’s case at its highest – here, that the decision maker knew that the employee requested voluntary redundancy whilst mid-grievance and that the retained employee had only recently been recruited with the intention of replacing the part-time staff. With those facts assumed, the employee’s case was not fundamentally flawed. The case was sent back to the tribunal for a full hearing, in front of a new judge.

This case is a reminder to employers that voluntary redundancies still create dismissals and can still be the subject of unfair dismissal proceedings. In this case, the judge’s error was overlooking the fact that issues leading up to the employee accepting voluntary redundancy could be relevant to the fairness of the ‘dismissal’ overall. Claims should not be struck out where the basic facts about what happened are in dispute, as they were here. This case is also a reminder of the importance of settlement agreements in redundancy situations, to help identify and deal with any outstanding issues that may otherwise form the basis of litigation.


Employment tribunal procedure – hearing transcripts

Kumar v MES Environmental

The Civil Procedure Rules say that High Court and County Court hearings will be audio-recorded unless the judge directs otherwise. A person can apply for a transcript of civil proceedings if they pay a fee and complete a form. These rules don’t apply to employment tribunal proceedings, which are not routinely recorded. The Employment Tribunal rules (contained in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013) are silent on both recording hearings and applications for transcripts. The EAT has looked a case where a recording of an employment tribunal hearing was made but the tribunal refused to give the losing party a transcript of the proceedings.

In Kumar v MES Environmental, the employee brought discrimination claims which were heard over four days. He lost his claims and applied for written reasons. He also followed the CPR process for requesting a transcript of the proceedings. The employment judge refused to provide a transcript because the tribunal rules did not provide for it. The employee made a data subject access request under the Data Protection Act 2018 to get copies of the notes made by the panel at the hearing and a copy of the audio recording. The request was refused because the data was exempt from being part of a subject access request if there was another way of getting it – in this case, via the CPR process. The employee appealed.

The EAT considered the position with regards to appeals, which can be made either on a point of law or on the grounds that the decision was perverse. The EAT said that if an appeal centres around a procedural irregularity or perversity, it might be helpful to have a transcript of proceedings as well as the written reasons. The EAT rules allow the EAT to ask for copies of an employment tribunal judge’s notes or an agreed note of evidence if that is needed to deal with the appeal, precisely because there is not usually a transcript available. The tribunal rules are silent on recordings because hearings are not routinely recorded, but that doesn’t mean that the intention was to deny parties access to a transcript where one was available. Where there is a recording, the EAT said that a party should be able to get a copy by the CPR route, without any input from a judge. After that, if a party wanted to rely on its content to support an appeal, they would need to seek permission from the EAT and explain why it was necessary for the fair disposal of the appeal.

This decision confirms that the position on access to transcripts is the same in employment tribunals as it is in the civil courts if the hearing is recorded. Campaigners are calling for employment tribunal proceedings to be recorded in order to improve fairness and transparency. However, most employment tribunal hearings still take place in premises without recording facilities. The Senior President of Tribunals has encouraged the use of recording facilities where premises allow, and also suggested that the tribunal service is considering the routine recording of video hearings. Discussions about the digital recording of tribunal hearings have been around now for a number of years, but significant financial investment will be needed in order to make audio recording of tribunal hearings the norm in the digital age.

Discrimination – harassment

Ali v Heathrow Express

A harasses B if they engage in unwanted conduct, relating to a protected characteristic such as sex or race, which has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. In terms of the effect of the conduct in question, a tribunal will consider B’s perception of what has happened, the overall context of the case and whether it is reasonable for A’s conduct to have that effect on B.

In Ali v Heathrow Express, the employer’s methods of security testing involved leaving suspicious packages for security staff to find, to test how they would deal with genuine security issues. The employer’s security contractor planted a bag containing a cardboard box, some wiring and a visible note saying ‘Allahu Akbar’ written in Arabic. The employee was not on duty that day but heard about the incident when an email was sent reporting the outcome of the test. The employee, who is Muslim, brought claims for direct discrimination and harassment, saying that the test had associated Muslims with terrorism. All claims were dismissed by the tribunal. They accepted that the conduct was unwanted and related to the employee’s religion. Offence was not intended, so this was a case about the effect of the conduct rather than its purpose. However, the tribunal said it wasn’t reasonable for the employee to have perceived the conduct in question as harassment. The employer was not trying to link Islam with terrorism but had used the phrase to create a realistically suspicious item. There had been a spike in terrorist incidents that year and the same phrase had been used in recent terrorist incidents. Other phrases were also used in security testing, such as ‘Animal testing must STOP now’ and ‘No third runway’. The tribunal said it wasn’t reasonable for the conduct to have the effect of violating the employee’s dignity or creating a hostile environment for him. He should have reasonably appreciated the intention that lay behind the security test. The employee appealed to the EAT.

The EAT agreed that the employee had not been harassed. The tribunal had decided on the facts that it was not reasonable for the employee to have viewed the conduct as harassment. Even if another tribunal could have come to a different decision, that did not make the tribunal’s decision perverse, such that no reasonable tribunal could have come to it.

This case highlights the sensitivity required when dealing with terrorism tests in a high-risk working environment. This case, and the workplace security test cited in it, came on the back of a spike of terrorist incidents in 2017 where religious phrases had been used. Whilst confirming that the tribunal’s decision was not perverse, the EAT did appreciate the strength of feeling that the employee had and acknowledged concerns about how Muslims in society are treated more generally. It was not relevant to the case, but the EAT noted that the employer in this case had not used religious phrases in its security tests since, which the employment tribunal said was ‘sensible’. On the facts, this was not harassment, but the employer seems to have changed its approach anyway to avoid any similar issue arising in future.


Constructive dismissal

Craig v Abellio

An employee is constructively dismissed if the employer fundamentally breaches the contract of employment and the employee resigns in response. A breach of the implied term of trust and confidence will be a fundamental breach of contract. The test is an objective one – is the employer’s conduct likely to destroy or seriously damage the trust and confidence between employer and employee? A constructive dismissal can be created by a series of events as well as a one-off incident. If there is a series of incidents, which taken together amount to a breach of contract, the employee can resign in response to the last in the series, even if that in itself is not a fundamental breach of contract (though it cannot be utterly trivial). This is called the ‘last straw’ principle.

In Craig v Abellio, the employee had been off sick. His sick pay was calculated and paid incorrectly due to a variety of errors and misunderstandings by the employer. He raised a grievance. The grievance originally found that the employee owed the employer £2000. The grievance appeal overturned the decision, accepting that the employee was owed over £6000 (although the employee said that the sum specified was still an undervalue). The employer agreed to pay the employee the sums owed by a certain date but failed to do so. The employee resigned the next day, saying trust and confidence had been fundamentally damaged. He brought a constructive dismissal claim relying on mistreatment which had occurred in the lead up to his resignation including the repeated failures to pay the correct pay, the grievance process and the failure to pay the backpay owed on time. He said the failure to pay the back pay was the ‘last straw’.

The employment tribunal said he had not been constructively dismissed. The mistakes about pay had not been fundamental breaches of contract and had been redressed by the grievance process. The failure to pay the backpay was a mistake not a fundamental breach (and paid shortly after the employee resigned). The employee appealed. The EAT overturned the decision. They said two issues were at play in this case – a breach of trust and confidence and also the breach of express contractual terms relating to pay. The tribunal had not made it clear in their judgment that they understood and applied the ‘last straw’ doctrine properly. They did not appreciate the nub of the issue for the employee – that the failure to pay the backpay came after a litany of errors in relation to pay and a failure to engage with him when he complained. The tribunal said the failure to pay the backpay was a mistake, not a fundamental breach, but then said that the history leading up to it was irrelevant. The EAT said that was evidence that the tribunal had not properly understood and applied the last straw doctrine. The failure to pay the backpay was capable of being the last straw. The EAT also said that a failure to pay the correct pay is in itself a breach of contract, even if there is a ‘reasonable’ reason for not doing so, such as mistake. The EAT sent the case back to a new tribunal panel to rehear the case.

This case is a sage reminder of two important principles. Firstly, any failure to pay the correct pay, in breach of an express term of the contract, can constitute a fundamental breach of contract. Getting an employee’s pay wrong can expose the employer to the risk of constructive dismissal cases so care must be taken especially where an employee complains of errors. This case also reminds employers that a series of incidents over a period can create a constructive dismissal even when the individual incidents are not in themselves fundamental breaches of contract. The last straw does not have to be particularly serious. Employers should always ensure that employee grievances are dealt with properly, especially ones relating to pay.


EHRC guidance – separate and single sex services

The Equality and Human Rights Commission has issued guidance for businesses operating separate or single sex services and how to approach trans people’s (people who have the protected characteristic of gender reassignment) use of that service.

The guidance looks at the Equality Act 2010 and how it impacts on the provision of single sex or sex-separated services. The Equality Act allows separate-sex and single-sex services in certain circumstances. Separate-sex services can be provided where a combined service would not be as effective, such as separate homeless hostels for men and women. Single sex services can be provided in certain scenarios, for example when only one sex requires the service (such as cervical cancer screening for women), where joint provision is provided but is not on its own sufficient (for example a fathers’ support group in a nursery, where attendance at a joint group is too low), or where the service may be used by more than one person and where a woman may object to the presence of a man or vice versa (for example single sex hospital wards and changing rooms in clothes shops). Limiting the service on the basis of sex must be a proportionate way of achieving a legitimate aim. The guidance lists privacy, decency, preventing trauma and the protection of health and safety as potential legitimate aims.

The guidance goes on to address how service providers should approach trans people’s access to those separate or single sex services. The approach must be a proportionate way of achieving a legitimate aim, by balancing the impact of single or separate sex services on all service users. The guidance gives the example of a group counselling session for female victims of sexual assault which does not allow trans women to attend because clients may be traumatised by the presence of a person who is biologically male. A gym with communal single-sex changing rooms may decide to introduce additional gender-neutral facilities with separate cubicles if there is a concern about the safety and dignity of trans men changing in an open-plan changing room. A café with limited space, and single-sex toilet facilities, may decide to make both toilets gender-neutral to maximise space and inclusivity. The guidance gives other useful examples that can be applied in practice in a variety of services.

The guidance advises service providers to treat everyone with dignity and respect. Service providers should also remember that trans people may need to access services relating to their biological sex (for example a trans man may need to access cervical smear services). The guidance advises engagement with trans people in order to enable them to access whatever services are required to meet their needs. The guidance recommends that a policy is drawn up to help manage access to the service whilst remembering that some scenarios may require a service provider to depart from normal policy. Decision making should also be recorded. Read the full guidance on their website: www.equalityhumanrights.com.

Employment tribunal procedure – strike out

Mendy v Motorola

Rule 29 of the Employment Tribunal Rules governs the tribunal’s ability to make case management orders in relation to claims. Those case management orders can be changed or revoked by a subsequent case management order. A case management order is an order or decision of any kind, but not a judgment. A judgment is a decision which gives a final determination on a claim or part of it, including strike out. Strike out is the ultimate tool in the employment tribunal’s toolkit, rendering the employee’s claim at an end. A claim can be struck out for various reasons including if it is vexatious or it has no reasonable prospect of success. Rule 37 says that a claim or response cannot be struck out unless the party has been given a chance to address the proposal to strike out, either in writing or at a hearing. Any consideration should take place in public, not a closed private hearing. In the recent case of Mendy v Motorola, the employment tribunal inadvertently struck out a claim and then came unstuck when the steps they took to rectify the situation did not have the desired effect.

The employee had brought several claims, including an indirect discrimination claim, over four different claim forms. The claims were consolidated so they could all be heard together. The claimant was asked to produce a single document detailing all of his claims. He did this in a document which ran to 64 pages. A closed, private preliminary hearing then took place, at which the indirect discrimination claim was overlooked by the judge among the heavy paperwork. The judge issued an order saying there was no discernible indirect discrimination claim. The employee appealed, saying the tribunal had got it wrong by saying there was no claim when one had clearly been pleaded. He said that the order amounted to striking out the claim without following the necessary safeguards contained in rule 37. Shortly after this, the tribunal revoked its original order on the indirect discrimination claim but the appeal went ahead anyway.

The EAT said that it was clear from the pleadings that the employee had brought an indirect discrimination claim. The judge’s actions at the preliminary hearing in saying there was no discernible indirect discrimination claim had the effect of bringing that pleaded claim to an end, essentially striking it out. That had been done without giving the employee an opportunity to make representations. It was also done in a closed hearing rather than in public. If a claim lacks clarity, the tribunal should ask the employee to provide more information about it. If a claim appears to have little or no prospects of success, then the tribunal should follow the relevant rules for making a deposit order or striking the claim out. In this case, the judge’s order was not a case management decision that could be revoked under the normal tribunal rules, so the subsequent revocation had no effect. The judge had made an error of law. The tribunal could have used its powers of reconsideration, but this did not happen. The appeal was allowed and the strike out overturned.

This case shows that even employment tribunal judges can be fallible, especially in the face of lengthy employment tribunal proceedings. The tribunal rules put procedural safeguards in place to ensure that cases are dealt with fairly and justly. In trying to manage a complex claim, the judge in this case inadvertently struck out a claim that he said he had overlooked. That was a legal error that the EAT had to overturn. The protections in place in relation to strike out are just as applicable to employers as employees – responses can be struck out too – and it is right that parties are given an opportunity to object, and put their side of the story forward, before such a draconian step is taken.


Indirect discrimination

Allen v Primark

Indirect discrimination is a complicated legal claim. Indirect discrimination happens when an employer applies a provision, criterion or practice (a ‘PCP’, such as a workplace policy) to all staff but which disadvantages a particular group of people who share a protected characteristic, as well as disadvantaging the individual employee who brings the claim. Indirect discrimination can be justified by showing that the policy in question is a proportionate way of achieving a legitimate business aim. In a recent decision, the EAT has shown just how complicated the legal test can be, even for eminent employment tribunal judges.

In Allen v Primark, the employee worked for Primark as a department manager at its Bury store. She went on maternity leave and proposed to return to work in November 2019. The standard UK terms for department managers at Primark required her to guarantee her availability to work late shifts. The employee had sole responsibility for her child and limited help from her mother, making late shifts difficult to accommodate. She applied to change her working hours under the company’s flexible working policy. The employer said they could not allow her request in relation to Thursday evenings because it would mean that four (including the employee) out of the six department managers at Bury could not cover Thursdays. The other three who could not work Thursdays were male. Piotr had a flexible working arrangement already (meaning he never worked the Thursday late shift) and the other two, Zee and Imran, had childcare responsibilities on Thursday evenings and implied terms not to work those shifts, though when asked on occasion they did work them. The employee brought an indirect sex discrimination claim. She said that the PCP was the requirement for her to guarantee her availability to work the Thursday late shift. The employment tribunal said the pool for comparison was department managers at the Bury store other than Piotr who had a flexible working arrangement. Of the people in the pool who were disadvantaged by the policy, two (Zee and Imran) were male and one was female. The tribunal therefore concluded that there was no group disadvantage for women. That meant the employee’s claim fell at the first hurdle. She appealed.

The EAT allowed the appeal. In deciding on a pool that included all Bury department managers bar Piotr, the tribunal had redefined the employee’s PCP from ‘being required to guarantee her availability’ to work a late shift on Thursdays to ‘being asked’ to work the same shifts. While Zee and Imran were prepared to work Thursday late shifts when asked, they were not required to guarantee their availability. Indeed, the employer had conceded that they both had an implied contractual right not to work that shift. The crux here was the element of compulsion identified in the PCP. Being required to guarantee availability is very different from being asked on occasion to help out – the latter can be refused whereas the former cannot. The employment tribunal had included in the pool for comparison two people – Zee and Imran – who were not disadvantaged by the PCP in the same way as the employee. The employer argued that excluding Imran and Zee from the pool left only a pool of three, which would be artificial. Whilst not saying that a wider pool, such as UK department managers at Primark, was necessary, the EAT said this argument showed that the pool selected by the tribunal was not logical. The case was sent back to the tribunal for rehearing.

This case shows how complicated indirect discrimination claims can be. The EAT here were not saying that the indirect discrimination claim should succeed, just that the basis for the tribunal finding that there was no discrimination was unsafe. A new tribunal will have to grapple with identifying the correct pool for comparison in this case, potentially using UK-wide department managers who are subject to the same managerial terms. This case also highlights the difficulties faced by employers in trying to cover antisocial shifts at a time when both men and women have childcare responsibilities. Employers dealing with flexible working requests must always bear in mind the risk of indirect discrimination claims and take early legal advice where matters are complicated.

And finally…

Menopause is still getting top billing in employment law news as well as the wider press. People Management has reported that more than 600 employers have signed up to the ‘Menopause Workplace Pledge’, part of a campaign by charity Wellbeing of Women, to provide more practical support for menopausal staff. Big names such as the BBC, Astra-Zeneca, Co-op and TSB are just some of the businesses who have committed to talking openly about menopause and helping to break down the taboo that can surround this issue. Businesses are rolling out menopause training, investigating more menopause-friendly uniform fabrics, and some have even said they will pay for HRT prescriptions.

Having a menopause policy may not be enough. There has been a seismic change in the menopause landscape over the last few years. Menopause is discussed much more openly thanks to high profile celebrities sharing their stories and empowering others to do the same. But women are still finding those conversations with line managers difficult, especially if the manager is male, so there is some way to go before talking about menopause is normalised. Wellbeing of Women report that a quarter of women may consider leaving their jobs due to debilitating menopause symptoms. That’s an awful lot of skilled, experienced women, often at the peak of their careers, which are lost to businesses.

There are potential legal issues too. Women who suffer debilitating symptoms may meet the legal test for disability, if their symptoms are severe and enduring enough (which is not unusual). Those women may need reasonable adjustments to help them do their jobs. A failure to deal with the issue properly may expose employers to the risk of legal claims.

A recent survey by People Management suggested that the majority of employers still don’t have a menopause policy or train their managers on how to handle menopause conversations in their teams. If you are one of them, take action now. Having a policy and creating an open discussion about menopause won’t just guard against legal claims, it will help to create an environment where women feel able to seek the help and support they need to remain in work as they navigate menopause. That isn’t just good for women, it’s good for business.

About David Parry

David graduated with a Law with French degree from Leicester and Strasbourg Universities. He qualified as a solicitor in 1989 and has specialised in employment law ever since, first at Cole & Cole (now Morgan Cole) then at Mallam Lewis & Taylor who merged with Darbys in 1999. David became a partner in 1995. Until 2013, David was the Head of the Employment Team at Darbys that became one of the best-regarded in Oxford and the Thames Valley. Contact David now

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