Employment law review: the box sets not to be missed in our 2020 round-up

16 December 2020

2020 is a year that we expected would be dominated by Brexit negotiation headlines, details of a new Employment Bill promised in the December 2019 Queen's speech and a handful of anticipated key Supreme Court judgments on holiday pay, sleep-in shifts, and employment status, but WAIT… COVID-19 strikes.



As the vaccine roll out begins - giving hope that a return to business as usual may be possible in the not too distant future - we reflect, with a light heart, on our recommended box sets to accompany the must know 2020 employment cases and developments - both COVID-19 and non-COVID-19 related.

  1. The Coronavirus Job Retention Scheme
  2. Sick pay & Self-isolating
  3. Holiday pay & the National Minimum Wage (NMW)
  4. Equality
  5. Agency Workers
  6. Employment status
  7. Whistleblowing
  8. Legal advice
  9. Vicarious liability
  10. TUPE
  11. Ending the employment relationship
  12. The 2020 awards (drum roll please…)

1. The Coronavirus Job Retention Scheme

The coronavirus (COVID-19) was declared a pandemic by the World Health Organization (WHO) on 11 March 2020. As the virus continues to spread extensively, it poses significant challenges to public health and for businesses - to put it mildly! The message to work from home where possible turned into some businesses being told to close to the public during periods of national lockdown, but how were businesses going to afford to retain staff?

Only Furlough and Horses don't Work

On Friday 20 March 2020, the Chancellor Rishi Sunak announced an "unprecedented" package of measures to protect millions of people's jobs and incomes as part of the national effort in response to coronavirus and the Coronavirus Job Retention Scheme (CJRS) was born.

All UK employers were able to access support to continue paying part of their employees' salary (up to 80% of their workers' wages up to a limit of £2,500 a month) for those employees that would otherwise have been laid off during the pandemic. Under CJRS Mark 1, which ran from March through to the end of June, for an employee to be furloughed, the employer must have instructed them to cease work throughout the furlough period.

Only Flexible Furlough and Horses Work

The summer arrived and with full lockdown ended CJRS Mark 2 arrived bringing flexible furlough, enabling employers to bring furloughed employees back to work part time and still claim under the CJRS, set to run from July to the end of October. However, the grant amount would taper down from 80% of their furloughed workers' wages (subject to the cap), plus associated employer National Insurance Contributions (NICS) and pension contributions down to 60% (subject to a reduced cap), with employers needing to pay the associated employer NICS and pension contributions.

As the end of October approached, the Chancellor dismissed the possibility of a CJRS extension and, instead, a less generous Job Support Scheme (JSS) was to be put in place from 1 November. However, on HalloCJRS Eve all change: CJRS Mark 3 running from 1 November to the end of March 2021, rose from the ashes like a phoenix as national lockdown 2 hit. Shelving the JSS, the level of support available under the CJRS Mark 3 mirrors that available under the CJRS back in August, with the Government paying 80% of wages for hours not worked, up to a cap of £2,500, and employers paying National Insurance contributions and pension contributions for those hours. Flexible furloughing is allowed under the extended CJRS, as well as full-time furloughing. A notable difference is that a CJRS grant cannot be claimed for any employee serving a statutory or contractual notice period.

2. Sick pay & Self-isolating

The Big Cough Theory:

As many people have been required to self-isolate as a result of the COVID-19 pandemic, the statutory sick pay provisions have been under continuous review with a series of changes, most notably:

  • Circumstances in which an employee may be deemed incapable of work (and therefore entitled to Statutory Sick Pay (SSP)) where they are self-isolating to prevent the spread of the virus, or shielding due to serious underlying health conditions[1].
  • Removal of the need for any waiting days in COVID-19 cases.
  • Recovery from HMRC of up to two weeks' SSP per employee paid by small and medium employers in COVID-19 cases.

[1] While many people required to self-isolate will be deemed sick, those who are required to quarantine following international travel are not.

Dr Who must stay at home

Without warning, on 28 September new regulations came into force not only making self-isolation a legal requirement and introducing penalties for individuals, but also introducing offences and penalties for employers in England. The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020:

  • Require people who have been notified that they have tested positive for COVID-19 and their close contacts to self-isolate for designated periods.
  • Prohibit employers or agencies from allowing workers who are required to self-isolate to work in any place except the place where they are self-isolating.
  • Require workers and agency workers to notify their employers of their requirement to self-isolate.
  • Create criminal offences and the penalties that apply for breaches of the provisions. In the case of an offence by an employer, fines begin at £1,000, rising up to £10,000 in relation to subsequent offences.

3. Holiday pay & the NMW

Calculating holiday pay should be straightforward but often has proved to be anything except straightforward, providing a seemingly endless stream of legal challenges. While we have three cases concerning various aspects of holiday pay calculations on their way to the Supreme Court, the listing delays as a result of the coronavirus pandemic mean that all three will not now be heard until the second half of 2021. While 2020 has been quiet on the case law front, we have had a couple of legislative developments.

Staycation is the new vacation:

COVID-19 has raised holiday leave and pay issues this year.

  • As the restrictions on travel in 2020 meant many employees may have wanted to postpone their holiday plans, on 27 March the Government amended the Working Time Regulations 1998 (WTR) to allow carry forward of up to four weeks accrued holiday leave. This allows leave to be taken sometime in the following two years, but only where the holiday leave was not taken in this current holiday year as a result of the effects of coronavirus on the worker, the employer or the wider economy or society.
  • But for those who did welcome taking holiday leave, on 13 May, the Department for Business, Energy & Industrial Strategy (BEIS) published new guidance, titled 'Holiday entitlement and pay during coronavirus (COVID-19)', on how holiday entitlement and pay operate during the coronavirus pandemic, particularly for workers furloughed under the CJRS – essentially furloughed workers can take holiday but it is likely the employer will need to top up furloughed workers' holiday pay.

Unrelated to COVID-19, since 6 April the reference period for calculating holiday pay for those with variable pay increased from 12 to 52 weeks (or the number of complete weeks for which the worker has been employed, if fewer than 52). This allows for consistent holiday pay calculation over the year, rather than holiday pay being inflated (if holiday is taken after a busy period) or deflated (if holiday is taken after a quiet period) for workers with variable hours.

The Queen's Limit

On 12 and 13 February, the Supreme Court heard the high profile NMW 'sleep-in' shifts case, Royal Mencap Society v Tomlinson-Blake. Where a worker is required to work a number of 'sleep-in' night shifts at the employer's premises, and be available in case of an emergency, does the full night shift constitute 'working' for the purposes of the NMW? Alternatively, is the worker only 'working' for NMW payment purposes when they are awake to carry out any relevant duties?

Unfortunately, the Supreme Court has yet to hand down this now well overdue judgment. However, this year the Employment Appeal Tribunal (EAT) in Commissioners for HM Revenue and Customs v Ant Marketing Ltd, reminds employers that:

  • Using a repayment of mandatory training costs clause can impact NMW compliance. Deductions for training costs - taken out of the workers' wages pursuant to a contractual provision if they left employment within 12 months of completing mandatory induction training - constitute reductions for NMW purposes. The fact that it was deducted post-termination and was contingent did not alter the position.
  • Employers should be aware that, even if they do not own property being rented out to workers, if they are connected to the landlord in some way, they are likely to face scrutiny as to whether they are in fact responsible for the provision of accommodation. If so, any deductions from wages for the payment of accommodation costs could well be treated as a reduction for NMW purposes.

On the legislative front, the National Minimum Wage (Amendment) (No. 2) Regulations 2020 ease administration of the NMW rules for salaried hours workers. Since 6 April 2020, the permitted pay cycles list has been extended, a single calculation year may be used, and salaried work pay premia are now permitted. As regards salary sacrifice schemes, the regulations have not made any amendments as many employers had hoped.

4. Equality

2020 has brought us a key Court of Appeal judgment on the costs alone v 'costs plus' debate in an important age discrimination justification defence case, as well as some notable disability discrimination judgments.

The Game of Costs

It has long been established that an employer cannot justify discriminatory treatment, solely because to eliminate such treatment would involve increased costs. Cost-saving alone without regard to other factors or aims does not justify a discriminatory provision, criterion or practice (PCP). However, while cost alone cannot justify a discriminatory act, cost plus some other factor (the so-called 'costs plus' approach) may do so.

Is an 'absence of financial means' capable of being the 'plus' factor justifying indirect age discrimination or is it still just 'cost'? This is the question the Court of Appeal considered in Heskett v Secretary of State for Justice. The Court held that saving or avoiding cost cannot alone justify indirect discrimination, but that principle only bites where the aim is "solely" to avoid costs. An employer's need to reduce expenditure, including staff costs, in response to financial constraints can constitute a legitimate aim for the purposes of the justification test.

The Court of Appeal has taken a pragmatic approach, recognising that almost any decision by an employer will have regard to costs and stressing the need to look at the employer's aim in a more nuanced way. The Court cautions against an artificial game of "find the other factor". Establishing a legitimate aim requires consideration of how the employer's aim can most fairly be characterised, looking at the total picture. While an aim which is solely to avoid increased costs will not be legitimate, an employer's need, as in this case, to reduce its expenditure or constrain its staffing costs can be. A subtle but very important (and fact-specific) difference.

CatastroPCP

Establishing a 'provision, criterion or practice' (PCP) is an essential element in an indirect disability (as well as other protected characteristics) discrimination claim and some claims for a failure to make reasonable adjustments. 'PCP' is construed widely to potentially include formal and informal practices, policies and arrangements and in certain cases may include one-off decisions.

In Ishola v Transport for London, the Court of Appeal provides useful guidance on what is meant by a PCP and specifically the circumstances in which a one-off act or decision can correctly be categorised as a 'practice'. A PCP will not be established in relation to a one-off act in an individual case where there is no indication that the decision would apply in the future. To amount to a PCP there must be a state of affairs indicating how similar cases are generally treated or how they will be treated in the future.

The Likely Lasts

A person is disabled if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The effect of an impairment is "long-term" if it has lasted at least 12 months, or it is likely to last at least 12 months, or for the rest of the life of the person affected.

In Tesco Stores v Tennant, the EAT reminds us that whether or not the substantial adverse effect is likely to recur must be judged by assessing the evidence available at the time of the alleged discrimination. It is irrelevant to consider what in fact happened subsequently. The fact that a condition has, since the date of the alleged discrimination, lasted for 12 months is not relevant to the question of whether these eventualities were likely at the time of the alleged discrimination. A tribunal must perform the hypothetical act of determining what the prognosis would have been in the light of the information available at the time of the act of discrimination. The tribunal can consider medical evidence obtained after the event, but only if it relates to circumstances at the time.

In Sullivan v Bury Street Capital Ltd, the EAT noted that the low threshold for recurrence does not mean that where a substantial adverse effect does in fact recur, an employment tribunal is precluded from concluding that, as at an earlier date, the effect was not likely to recur. Similarly, the fact that the particular effect is itself a recurrence does not preclude an employment tribunal from concluding that, as at the date of the later episode, a further recurrence was not likely. "Although in many instances, the fact that a substantial adverse effect has recurred episodically might strongly suggest that a further episode is something that "could well happen", that will not always be the case."

5. Agency Workers

The 'Swedish derogation' (which excludes agency workers from the right to the same pay as directly-recruited workers if they have a contract of employment with the agency) was repealed on 6 April this year. Nevertheless, we take some Scandi inspiration for our next box set choices:

The Bridge

Following the controversial 2013 EAT decision in Moran v Ideal Cleaning, the number of agency workers potentially falling within the provisions of the Agency Workers Regulations 2010 (AWR) is significantly fewer than originally anticipated. Not all agency workers are covered - it is only those supplied to work temporarily. Those placed indefinitely (meaning open-ended in duration) are not placed 'temporarily' and are therefore outside the scope of the AWR. However, in the July 2020 Angard Staffing Solutions Ltd and anor v Kocur and anor judgment, the EAT significantly narrows the potential size of the gap. A series of continuous temporary placements may nonetheless attract the protection of the AWR. If there is an express end date for each assignment (whether by fixed period, on the completion of a particular task, or on the occurrence of some other event) then the supply will be temporary, even if in fact it is continuous. A temporary supply may be followed by another supply to work for the same hirer temporarily, and then another, and another.

Fortitude of Mr Kocur

The effect of the AWR is to ensure that:

  1. after 12 weeks in a given job, agency workers will be entitled to equal treatment on basic working and employment conditions; and
  2. from the first day of their assignment, agency workers will be entitled to information about vacancies in the hirer to give them the same opportunity as other workers to find permanent employment, or equal access to on site facilities.

But just what is the extent of equal treatment under the AWR? In a case that has been to the EAT and back again on several preliminary points, in the December 2020 Angard Staffing Solutions Ltd and anor v Kocur and anor judgment in relation to his substantive claim, the EAT has given a wide-ranging ruling on various aspects of agency workers' rights under the AWR including:

  • The right to be informed by the hirer of vacancies does not mean that the agency worker has a right to be entitled to apply for, and be considered for, internal vacancies on the same terms as directly-recruited employees.
  • The right to equality of treatment in relation to basic working and employment conditions concerned with 'overtime' does not extend to a right to equal treatment in relation to opportunities for overtime. Direct recruit employees being given first refusal in relation to overtime opportunities in preference to agency workers did not breach the AWR.
  • The AWR do not entitle agency workers to work the same number of contractual hours as a comparator directly-recruited worker. The reference to equal treatment in relation to 'the duration of working time' has a more limited meaning: it means that if the hirer sets a maximum period when a comparable employee could be required to work, the hirer could not set a different maximum for agency workers.
  • There is nothing in the wording of either the Directive or the AWR to suggest that there is a requirement for equality of treatment in relation to the content of working time. Direct recruits attending weekly half-hour 'Work Time Listening and Learning' training sessions at a time when agency workers were expected to carry on with their normal work did not breach the AWR.
  • The right to equal treatment in relation to 'pay' does not extend to a right to the same pay information on payslips. The payslips simply need to comply with the information required by section 8 Employment Rights Act 1996 (ERA), which permits use of aggregate figures.

6. Employment status

Desperate Bicyclists

On 22 and 23 July, the Supreme Court heard the long-running case that has become the poster-child for gig economy worker status cases: Uber BV and ors v Aslam and ors. While we still await this highly anticipated judgment, we have had a couple of recent judicial points to note regarding worker status and 'dominant' purpose.

  1. In Varnish v British Cycling Federation, the EAT held that a professional cyclist participating in an Olympic training programme was not an employee or a worker of the British Cycling Federation. Before considering questions such as whether there is any 'mutuality of obligation' between the parties, in some cases the first essential question is whether the individual was engaged in 'work' at all. Consideration of the 'dominant purpose' may be a better starting point. If the dominant purpose is not personal service of 'work' for the other party, then that will be a factor pointing away from the relationship being one that lies in the world of employment.
  2. In O'Eachtiarna and others v CitySprint (UK) Ltd, a tribunal held that cycle couriers were workers when working 'on the circuit'. Although there was a contractual right of substitution, it was a theoretical right only and had never been exercised. Following the 2018 Supreme Court judgment in Pimlico Plumbers Ltd v Smith, the tribunal assessed that the dominant feature of the contract remained personal performance.

7. Whistleblowing

Billions of little whispers

The case of Simpson v Cantor Fitzgerald Europe, held out the promise of Court of Appeal guidance on a full range of whistleblowing issues. Grounds of appeal included issues around composite disclosures, the distinction between information and allegation, the 'insider' context, public interest and reasonable belief.

Alas, we were disappointed. The claimant's whistleblowing claim failed before the Court of Appeal (as it did before the tribunal and the EAT), as the claimant had failed to show that any of his 37 alleged protected disclosures had anything to do with his dismissal and to say that the principal reason for his dismissal was that he had made protected disclosures was, in the Court's words, "utterly fanciful". Consequently, arguments that the tribunal should have found his alleged disclosures were protected were dealt with pithily. Nevertheless, we note the following:

  • We have Court of Appeal confirmation that two or more communications can, taken together, amount to a protected disclosure, albeit in the case of Mr Simpson's 37 alleged disclosures this was not the case.
  • The Court of Appeal agreed with an earlier judgment of the EAT which held that many whistle-blowers are insiders, that means that they are so much more informed about the goings on of the organisation of which they make complaint than outsiders and that that insight entitles their views to respect. Since the test is their reasonable belief, that belief must be subject to what a person in their position would reasonably believe to be wrongdoing. The Court of Appeal went on to add that this works both ways: "Just as someone with experience in the field has information and insight which should be taken into account in his favour, so too he should know better than (say) a lay person who happened to overhear a conversation, whether it does tend to show that something is amiss".

Line of Duty (series one)

Legal advice privilege (LAP) prevents legal advisers and their staff from claiming the protection of the whistleblowing legislation if they disclose, in the absence of express instructions from their client, information to which the doctrine of legal professional privilege attaches. This exemption applies even though the disclosure would comprise a 'qualifying disclosure' in all other respects (section 43B(4) ERA 1996). However, this is a very limited exemption. The in EAT in Leclerc v Amtac Certification LTD reminds us that outside the LAP exemption, there is no general exception to protection under the whistleblowing provisions for disclosures carried out as a material part of the worker's work.

8. Legal advice

Line of Duty (series two)

Legal advice privilege (LAP) protects confidential communications between client and lawyer, made for the dominant purpose of seeking or giving legal advice. If LAP applies, the document is not admissible in evidence before a tribunal or court. However, LAP protection is not absolute.

This year, we are reminded that if claiming LAP, the party claiming the privilege must show that the relevant document or communication was created or sent for the dominant purpose of obtaining legal advice. With regard to multi-addressee emails, if the dominant purpose is to obtain commercial views of a non-lawyer - even if a subsidiary purpose is to simultaneously obtain legal advice - privilege does not apply. The lawyer's advice, however, will be protected, as will a communication that might realistically disclose legal advice. The mere presence of a lawyer at a meeting for limited legal advice would not render the entire meeting privileged, unless legal advice is the dominant purpose (Civil Aviation Authority v R on the Application of Jet2.com Ltd).

Grey's Anatomy of the advice

In Allen t/a David Allen Chartered Accountants v Dodd & Co, the Court of Appeal confirmed that in order to be liable for the tort of inducing a breach of contract, you must know that you are inducing a breach of contract. Unless it can be proved that the defendant knew that their actions would have the effect of breaching the contract (rather than might have that effect), liability will not be made out. Also, if responsibly-sought legal advice is given that the proposed actions would not amount to a breach of contract, and this advice is honestly relied upon, there will be no liability for the tort of inducing a breach, even if that advice turns out to be wrong.

9. Vicarious liability

Not the Prime Suspect

Common law vicarious liability is a principle of strict, no-fault liability for wrongs committed by another person. In an employment relationship, an employer may be liable for the wrongs committed by an employee where there is a sufficient connection between those wrongs and the employee's employment.

Following a number of appellate level 21st century judgments, when considering whether an incident has sufficient connection with the employer, it is not merely a question of whether the employee was 'at work' in a strict sense. Instead it is whether the employee was otherwise 'clothed in the employer's authority' or 'acting within the field of activities assigned to them'. But just how wide is the potential scope?

The Supreme Court has held that an employer was not vicariously liable for the data protection breaches committed by a rogue employee who uploaded payroll data of the entire employer's workforce to the internet. While the employee had been authorised to securely transmit the data to the company's external auditors, online disclosure of the data was not part of his field of activities. The fact that his employment gave him the opportunity to commit the data breach was not enough to result in a finding of vicarious liability. The employee had a personal vendetta against the employer (revenge for a workplace reprimand he had received) and so acted "on a frolic of his own" (Wm Morrison Supermarkets plc v Various Claimants).

10. TUPE

The Undoing

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), the starting point is that any purported variation to a transferring employee's contract is void if the sole or principal reason for the variation is the transfer (regulation 4(4)).

The only exception to this is where the variation falls within reg 4(5)(a) of TUPE 2006 being:

  • the sole or principal reason for the variation is an economic, technical or organisational reason (ETO reason) entailing changes in the workforce, and
  • the employer and employee agree that variation.

In Ferguson and ors v Astrea Asset Management Ltd, the EAT confirmed that regulation 4(4) applies to all variations, so unless the exception applies, attempts to vary contracts of employment - whether positive or negative for the employee and whether before or after a transfer - will be void.

11. Ending the employment relationship

Downturn Abbey

Unfortunately, in 2020 many employers faced or are facing redundancy/potential redundancy situations due to workplace closures or reorganisations resulting from the impact of the coronavirus pandemic. Carrying out a fair and compassionate consultation process in trying times can be difficult (Redundancy: the new normal?). While the pandemic adds some practical complications, particularly when large portions of many workforces are either on furlough or working remotely from home, the underlying legal principles remain unchanged.

As far as general legal principles concerning redundancy this year the tribunals and courts have reminded us:

  1. In a business reorganisation, there is a subtle difference between allocating staff to newly created roles and selecting staff to remain in a dwindling number of roles. For the former, the employer has a greater degree of flexibility in how it makes its selection, in the latter the employer must follow a more objective selection process scoring the at risk pool against the same criteria. However, in both cases employers should always remember the touchstone of the range of reasonable responses test (Gwynedd Council v Shelley Barrett and other, EAT).
  2. When considering whether there is a diminished requirement of the business for employees to do work or to do work of a particular kind, the EAT warned against merging the binary question of whether there was a redundancy situation with the separate questions of the reason for an employee's dismissal and/or the reasonableness of that dismissal. A redundancy situation either exists or it does not. It is open to an employer to organise its affairs so that its requirement for employees to carry out particular work diminishes. If that occurs, the motive of the employer is irrelevant to the question of whether the redundancy situation exists. Whether an employee was dismissed for reason of redundancy and, if so, whether the employer acted reasonably in treating that reason as a sufficient reason for dismissing the employee are separate questions (Berkeley Catering v Jackson, EAT).
  3. In a parting gift to UK employers, the Court of Justice of the European Union (CJEU) has held that for the purposes of assessing whether the threshold for collective redundancy consultation is met, the reference period must be calculated taking into account any period of 30 or 90 consecutive days (90 days in the UK) during which an individual dismissal took place. This means that employers must look both back and forward from an individual dismissal to determine whether there are 20 or more proposed dismissals. This will be particularly important where employers are effecting redundancies in batches. How a UK court will interpret this judgment in a UK context is yet to be seen (UQ v Marclean Technologies SLU).

The Exit Files

Never have sections 44 and 100 of the ERA been read so much by employment lawyers. These are the provisions which give employees the right not to be subjected to a detriment, or dismissed, on certain grounds relating to health and safety in the workplace. Employees are protected where they have a reasonable belief that they face an imminent and serious threat to their health and safety, or those of another related to the workplace. This may include a situation where the employee refuses to return to work because they don't agree with the protective steps taken by their employer, but could also possibly extend to include where the employee's concern arises because they live with a vulnerable person and their commute requires them to use public transport. So, it's not the workplace itself but the means of getting to work that creates an issue.

Where an employee does raise genuine and reasonable concerns, then taking any action to force the employee back could land the employer in hot water. It also demonstrates why risk assessments are so vital and should be used in addition to genuinely consulting with employees on an individual basis to explore their concerns. While the subtleties of the legislative provisions have been studied this year, case law in the pandemic context will of course take several months or even years before it is decided.

Despite the current surreal pandemic world, disputed dismissals for a whole host of reasons continue to make their way through the tribunals and appeal courts. Some notable 2020 unfair dismissal lessons are:

  1. The scope of information that will be deemed known by (attributed to) the employer when making a decision to dismiss is wide. Those involved from the beginning to the end of a disciplinary process must ensure that the information that they provide is and remains accurate, particularly a process in which the employee's reputation or ability to work in their chosen field of employment is potentially affected. Where new relevant information becomes known after the investigating officer has submitted their report, it cannot simply be ignored (Uddin v London Borough of Ealing, EAT).
  2. Employers can face tricky decisions where an employee is charged with criminal offences committed away from work. In Lafferty v Nuffield Health, the EAT confirmed an employer may potentially fairly dismiss for some other substantial reason (SOSR) when continued employment of an employee poses a genuine risk to its reputation. As ever, it will depend on the circumstances of the case. Factors to be taken into account include the nature of the offence, the nature of the employee's work, the position of the employee, and the extent to which the work involves contact with members of the public, particularly children and vulnerable adults.
  3. Where irremediable personality clashes between colleagues cause substantial disruption to the business it may, in some relatively rare cases, be fair to dismiss an employee for SOSR. To do so, employers need to ensure the principal reason for the dismissal is the dysfunctional working environment and not a misconduct dismissal in disguise - a very fine line to walk (Gallacher v Abellio Scotrail Ltd, EAT).
  4. For there to be an unfair dismissal, there does of course need to be a dismissal. The EAT in Phoenix Academy Trust v Kilroy reminds employees that it is inherent in the very concept of an appeal of a disciplinary dismissal, that if successful the dismissal falls away – the so-called vanishing dismissal. Having said that, employers are warned that this does not mean they have a clean slate. The employer remains at risk that a further act (or omission) by them in the conduct of the appeal process may enable the employee to rely on the totality of the employer's acts forming part of a series amounting to a repudiatory breach of the implied term of trust and confidence.

The Inbetweener

The London South ET granted interim relief to a dismissed employee who used a trade union to lodge a grievance about a pandemic-related pay cut and lack of PPE (Morales v Premier Fruits (Covent Garden) Ltd). This means the employee remains on full pay until his unfair dismissal claim is concluded, which is likely to be several months. Even if he ultimately loses, he will not be required to reimburse his former employer the pay received since the interim relief hearing

Interim relief has traditionally only rarely been sought due to the limited circumstances in which it is available (restricted to union membership or activity, activities as an employee representative or whistleblowing). The pandemic may, however, lead to a significant increase in use of this potentially powerful tool for a claimant, given that it has led to an increase in trade union activities in response to employers' measures in response to the pandemic and whistleblowing over concerns about workplace safety.

Buffy the Confidence Slayer

Every contract of employment has an implied term of trust and confidence. Essentially, this requires employers and employees not to conduct themselves, without reasonable and proper cause, in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. A breach of this implied term is often a feature of claims before employment tribunal. This year we have been reminded:

  1. The 'last straw' doctrine allows an employee to rely on a series of breaches over a period of time which together amount to a breach of trust and confidence. Until recently, case law has held that the 'last straw' must not be something totally innocuous and that it must contribute something to the breach, although what it adds might be relatively insignificant. However, the EAT in Williams v Governing Body of Alderman Davies Church in Wales Primary School, has held that a reasonable and seemingly innocuous act on the employer's part may revive an earlier fundamental breach of contract, provided that the employee has not already affirmed that breach. In other words, if the earlier fundamental breach contributes to the employee's subsequent decision to resign, a constructive dismissal claim may succeed even though the last straw identified by the employee, taken on its own, would seem fairly innocuous.
  2. Conduct likely to destroy or seriously damage the relationship of confidence and trust between employer and employee can take the form of a failure to do something as well as the form of positively doing something (Nair v Lagardère Sports And Entertainment UK, High Court).
  3. By making untruthful statements to their employer designed to cover up their own wrongdoing, an employee may fundamentally breach their employment contract, justifying their summary dismissal, even though that employee may have no proactive, positive duty to self-report in relation to their own misconduct (Human Kind Charity v Gittens, EAT).

The Crown Purse Cap

The long foretold Government plans to introduce a £95,000 cap on the total pre-tax aggregate value of public sector exit payments came into force on 4 November 2020. The vast majority of public sector authorities and offices are caught by the Restriction of Public Sector Exit Payments Regulations 2020. The £95,000 cap will apply to any non-exempt termination payments that represent a cost to the employer. This will include redundancy payments, employer pension contributions including any top up payments to fund a pension enhancement, ex gratia sums, voluntary exit payments, a payment in lieu of notice that exceeds one quarter of the employee's annual salary, as well as shares and share options. Where two or more public sector exits occur in respect of the same person within a period of 28 consecutive days, the total amount of the exit payments made to that person cannot exceed the £95,000 cap.

The Regulations have significant pension implications. The early implementation date will disappoint those who hoped the implementation would be delayed until after the outcome of Ministry of Housing, Communities and Local Government consultation on the impact of the proposed reforms, which has yet to be published.

12. The 2020 awards (drum roll please…)

The 'Best judicial use of popular culture' Award

and the winner is… the EAT (Stacey, HHJ)

… getting in references not only to Laurel and Hardy, but also James Corden in a case attempting to raise a dual employment argument (Patel v Specsavers):

"Unlike in the theatre*, it is a well-established principle of employment law that in general terms one employee cannot simultaneously have two employers (Laugher v Pointer (1826) 5 B & C 547). The reason why the concept of dual employment has such theatrical comedic potential derives from the confusion and farcical consequences that can arise from competing and contradictory instructions being given by two employers to one employee. It was also a seam mined by Laurel and Hardy, so slapstick potential too.

*"One Servant, Two Masters" or "The servant of Two Masters" Carlo Goldoni 1746 to "One Man, Two Guvnors" Richard Bean, National Theatre starring James Corden 2011"

The 'Innovative use of Parliamentary Procedure Award

and the winner is… Mr Will Knowland

…dismissed Eton college teacher, who is attempting to obtain reinstatement by lodging a petition to try and secure a personal Act of Parliament

The 'Nice Try' Award

and the winner is…Eurasian Natural Resources Corporation Limited

… for attempting to defend a claim of harassment by arguing that because the surveillance and other activities complained of were conducted covertly, they could not have been "calculated" to cause the claimants distress. Rejecting the proposition, the judge pointed out that once a victim learned of conduct which, objectively, constituted harassment, it was no answer for the perpetrator to say that they hoped or intended or planned that the victim would not find it out.


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