2022 what a year! We began the year in the continued grip of COVID-19 restrictions but with a promise of an end in sight moving from lockdown to 'living with COVID-19. Emerging from lockdown appears to have changed the world of work with the 2022 employment words of the year being "hybrid-working" and "quiet-quitting". But COVID-19 did not grab all the headlines this year. Political turmoil as the Government churned through three Prime Ministers, a growing cost of living crisis and widespread strikes have significantly impacted both employers and employees.
As 2022 draws to a close, we sit back with a light heart and reflect on our pick of the 2022 employment case law highlights. And, of course, our 2022 awards.
- Employment status: Workers Wars: The Phantom Mutuality; Workers Wars: Return of the JedIR35
- Agency workers: Call my Agency Worker
- Holiday pay: Enough for a place in the Sun; Travels with my Music Teacher
- Equality: COVID-19 Watch; The Born? Identity; Primemark Suspect; Crystal PHI Maze
- Whistleblowing: Only Causal Connect; Pointless then prove it
- Business protection: Gentleman Hit the Road Jack: You're not going out (with that)
- TUPE:The TUPEEP show; TU Pints of lager and a Package of SIPs; The Line of DuTUPE
- Collective bargaining: Judicial Pulp Fiction; Cut Shorty
- Employee consultation: Faulty Towers; All Employers Great and Small; The not so Big Easy
- Fire & rehire: The Paytrix Reloaded; The Paytrix non-Revolutions; The Paytrix Resurrections?
- Terminations: Employers Behaving Badly; Employees Behaving Badly; The COVID eXit Files; The Vanishing Dismissal; The Politics no-Show
- Settlement agreements: eXit Men: the days of Future Past; eXit Men Origin
- Fraud: The Thief, His CV and the NHS Chairs
- The 2022 awards (drum roll please…)
Employment status
Workers Wars: The Phantom Mutuality
To be a "worker" for employment law purposes an individual will need to establish that they:
- work under a contract
- undertakes to do or perform that work personally; and
- the person for whom the work is done must not be a client or customer of a business being run by the individual.
After last year's long awaited Supreme Court judgment in the long-running and high profile case of Uber BV and ors v Aslam and ors you may be forgiven for hoping that issues around "worker" employment status were now largely resolved. Whether or not an individual is a worker is primarily a question of statutory interpretation, not contractual interpretation. You start by considering who the legislation is intended to protect. You then look at all the facts, including the contract as well as the conduct of the parties, and decide whether a person is a worker. So the contract is not determinative, but it is still a relevant factor.
Unfortunately, worker status issues continue to arise. In 2022, we learned:
- The focus is on the statutory test. The well-known concepts of "mutuality of obligation", "irreducible minimum" and "umbrella contract" are tools that may be used to assist in answering the first question regarding the existence of a contract. The second question on personal service may be answered with assistance from the tools of "substitution" and "predominant purpose". The concepts of "subordination", "control" and "integration" are tools that may be relevant to whether the individual is carrying on a profession or business undertaking for a client or customer. However, none of these concepts are themselves tests (Sejpal v Rodericks Dental Ltd – Employment Appeal Tribunal (EAT)).
- In Nursing and Midwifery Council v Somerville, the Court of Appeal confirmed that an 'irreducible minimum of obligation' is not a prerequisite of 'worker' status. Once a contract is agreed between an employer and an individual to perform work personally on a particular occasion and the end user is not a client or customer of a profession or business carried on by that individual, 'worker' status may be established for the duration of that contract without anything more.
- Whether an individual will have employee or worker status is determined by a number of factors relevant to the factual scenario. The object is to paint a picture from the accumulation of detail. In Johnson v Transopco UK Ltd the EAT upheld the tribunal's conclusion that a taxi driver was not an employee or a worker. The tribunal correctly relied upon its findings that the driver could provide his services as infrequently or as often as he wanted, could dictate the timing of those services, was not subject to control by the operator in the way in which those services were undertaken, and, significantly, the relatively very small proportion of work that the driver did through the Mytaxi app compared to the amount he did on his own account.
Workers Wars: Return of the JedIR35
Organisations procuring labour services, such as freelancers and consultants, need to understand the IR35 ("off-payroll") rules under which medium and large private sector employers have responsibility for determining the deemed employment status of contractors they engage via an intermediary.
The test for deemed employment status for tax purposes can be confusing. While employment status for employment law purposes has three options, employment status for tax purposes is a binary question: either employed or self-employed. This year the Court of Appeal reminded us that when determining employment status, the considerations in play for employment law purposes and those for tax purposes while similar, are not the same!
When it comes to employment rights, the starting point is the statutory right in question. This is because otherwise the purpose of legislation, which is to provide protected employment rights, could be defeated by the contractual terms, particularly in light of the unequal bargaining power between the parties. However, the same does not apply when determining status for tax purposes. Instead, the starting point is that the normal principles of contractual construction should apply, meaning that the contractual terms should not be disregarded unless they are "unrealistic".
In addition, the Court emphasised that although findings of control and mutuality of obligation are necessary pre-requisites to employment, they did not create a presumption of employment. Rather, if those pre-requisites exist, the court's task is to examine all relevant factors, both consistent and inconsistent with employment, and determine, as a matter of overall assessment, whether an employment relationship exists (HMRC v Atholl House Productions Ltd and Kickabout Productions Ltd v HMRC).
Agency workers
Call my Agency Worker
Under the Agency Workers Regulations 2010 (AWR), from the first day of their assignment, agency workers are entitled to information about vacancies in the hirer to give them the same opportunity as the hirer's employees to find permanent employment. But just what is the scope of this right?
In Angard Staffing Solutions Ltd and Royal Mail Group Ltd v Kocur and anor, the Court of Appeal confirmed that the AWR simply confers a right to be notified of vacancies within the hirer's organisation. This does not mean that agency workers are entitled to apply for, and be considered for, internal vacancies on the same terms as directly recruited employees.
Holiday pay
A perennial favourite. Just when you think there cannot be any more cases on the "far more complicated than it should be" topic of holiday pay, more come along. This year we have more Court of Appeal and Supreme Court guidance.
Enough for a place in the Sun
In the long-running case of Smith v Pimlico Plumbers Ltd, having succeeded in establishing 'worker' status, Mr Smith has now succeeded in establishing that he can proceed with his holiday back pay claim. The Court of Appeal has confirmed that the right to carry over annual leave without limit covers not only a worker who does not take leave because it would be unpaid, but also a worker who takes unpaid leave because the employer refuses to recognise their right to paid annual leave.
As a claim brought under the Working Time Regulations 1998 (WTR), rather than as one for unlawful deductions from wages under the Employment Rights Act 1996, the employer cannot rely on the two-year 'backstop' provision that applies to unlawful deduction claims brought on or after 1 July 2015. For good measure, the Court of Appeal also provided a non-binding "strong provisional view" that the ruling in Bear Scotland v Fulton [2015] was wrong to hold that a period of more than three months between non-payment or underpayments would result in the earlier underpayments being excluded from a "series of deductions".
In this case, Mr Smith is claiming holiday pay for the entire period of his employment in the sum of around £74,000!
Travels with my Music Teacher
Should holiday entitlement be pro-rated to prevent term-time only workers from receiving a disproportionately higher level of holiday pay than full-time or part-time workers who work throughout the whole year? The Supreme Court in Harpur Trust v Brazel has said – No. The Working Time Regulations 1998 generally require that a 'calendar week method' is used to calculate holiday pay, rather than a 'percentage method'. As such, term time only workers with variable hours (such as peripatetic music teachers) are entitled to 5.6 weeks' holiday based on their weekly work pattern during the term, without any reduction to reflect that they only work part of the calendar year. The express provisions for calculating holiday pay for workers with variable hours contained in the WTR cannot be overridden by capping annual holiday pay at 12.07% of annualised hours for ease of calculation. The calculation set out in the WTR must be used even where it results in part-year workers receiving a higher proportion of their annual earnings as holiday pay.
Equality
COVID-19 Watch
COVID-19 is an increasing feature in discrimination claims this year. So far, we have learned:
- Treatment which is favourable or advantageous will not amount to unfavourable or disadvantageous treatment merely because the employer could have made it even more favourable or advantageous (The EAT in Cowie and ors v Scottish Fire and Rescue Service regarding pre-requisites to access a paid special leave scheme put in place for employees unable to work due to vulnerability or childcare reasons).
- Failure to allow a disabled employee at high risk from COVID-19 due to her disability to work from home may, depending on the circumstances, amount to a breach of the Equality Act 2010 being a failure to make reasonable adjustments, s15 discrimination arising from disability as well as a s44 Employment Rights Act 1996 health & safety detriment (London South Tribunal in Keown v Dr Sarajlic t/a Staines Road Surgery)
- Whether an employee suffering from long-COVID symptoms may be disabled within the meaning of section 6 of the Equality Act 2010, will, as ever, be fact specific. We now have two Scottish tribunal judgments considering this question with contrasting result, each turning on the question of whether the employee's symptoms were likely to last 12 months or more.
- In Burke v Turning Point Scotland, the employee succeeded. At the time of dismissal, he had been suffering from long-COVID that had a substantial adverse effect on his ability to carry out normal day-to-day activities for nine months and had an uncertain prognosis as to recovery. The tribunal therefore accepted that Mr Burke was more likely than not to suffer from long-COVID for at least a year.
- In Quinn v Sense Scotland, the employee failed. While the impairment of COVID-19 had a substantial adverse effect on her ability to carry out normal day-to-day activities, this effect had lasted only two and a half weeks at the time of her dismissal. At the time of her dismissal, there was no evidence that Mrs Quinn's condition would develop into long-COVID and last 12 months or more.
The Born? Identity
Gender identity has been a hot topic in 2022 attracting significant media coverage and often sparking heated social media debate. Last year the EAT in Forstater v CGD Europe held that gender-critical beliefs, including a belief that sex is immutable and should not be conflated with gender identity, are protected under the Equality Act 2010. Both those holding a gender identity belief and those holding a gender critical belief are protected under the law. But what that does not mean is that those with gender-critical beliefs can indiscriminately and gratuitously refer to trans persons in terms other than they would wish. Such conduct could, depending on the circumstances, amount to harassment or discrimination. It is the manifestation of a belief that may, depending on the circumstances, be restricted.
In 2022, the tribunals and courts have added:
- In Mackereth v Department for Work and Pensions and anor a Christian doctor held gender critical beliefs and declared he would refuse to use transgender service users' preferred pronouns in a role as a health and disabilities assessor of benefits. While his gender critical beliefs are protected under the Equality Act 2010, the employer's response to his refusal to use transgender service users' preferred pronouns was not direct or indirect discrimination or harassment. The EAT agreed that a distinction can be drawn between the beliefs and the way those beliefs are manifested (Mackereth v Department for Work and Pensions and anor – a further appeal pending).
By contrast:
- At the substantive hearing in Maya Forstater v CGD Europe and Others, a consultant researcher, was found to have been discriminated against when a think tank ended its relationship with her because she expressed gender-critical beliefs in the context of a social media debate regarding the 2018 government consultation on proposed amendments to the Gender Recognition Act. She consistently said that she would use someone's preferred pronouns but continued to advocate her right to engage and write about the topic outside of work.
- In Bailey v Stonewall Equality Ltd and others, the tribunal found that barrister Allison Bailey suffered direct discrimination and victimisation by Garden Court Chambers as a result of her expression on social media of:
- her gender critical philosophical beliefs; and
- her belief that gender theory, as promoted by Stonewall, is severely detrimental to women (including that it denies them female-only spaces) and to lesbians (in that it labels them as bigoted for being same-sex attracted).
As ever each case will turn on its particular facts. The case of Ms Bailey is notable in that it goes further than Forstater and Mackereth as to the scope of gender critical beliefs which may be protected under the Equality Act 2010. In Ms Bailey's case her gender critical belief included that Stonewall's campaigning on gender self-identity had harmful effects.
Primemark Suspect
The concept of a provision, criterion or practice (PCP) is an important element in:
- Indirect discrimination – a claimant must point to a PCP applied by the employer that puts or would put persons who share a protected characteristic at a particular disadvantage; and
- Failure to make reasonable adjustments – an employer has a duty to make reasonable adjustments where it knows (or ought reasonably to know) that a person has a disability and that there is a provision, criterion or practice (PCP) which places the disabled person at a substantial disadvantage compared to those who are not disabled.
This year in relation to PCPs we learned:
- In an indirect discrimination claim to identify a group disadvantage, a pool for comparison must be identified, containing both persons who are disadvantaged and persons who are not. In Allen v Primark Stores Ltd, the EAT remind us that it is essential for the comparison pool to be constructed by accurate reference to the precise PCP complained of.
- In a claim for reasonable adjustments, the EAT remind us that a reasonable adjustment is not a vehicle for giving an advantage over and above removing the particular disadvantage caused by the relevant PCP (Hilaire v Luton Borough Council).
Crystal PHI Maze
The EAT in Pelter v Buro Four Project Services Ltd has upheld a tribunal's decision that an employer, who had provided employees with access to a permanent health insurance (PHI) scheme (sometimes referred to as group income protection), did not directly discriminate against an employee because of age when his benefits under the PHI scheme ceased upon him reaching 65. Although the state retirement age had risen to 66 that increase occurred long after the individual had triggered the PHI payments.
As is standard industry practice, the PHI scheme provided that once a member became incapacitated the terms and conditions of the policy would effectively freeze on the date immediately prior to the incapacity. It is the nature of a PHI scheme to provide that the situation crystallises upon the employee becoming incapacitated for work so as to trigger the payment of benefits. Thereafter, payment of benefits is a matter for the insurer.
Whistleblowing
Only Causal Connect
Evidence of a protected disclosure and a detriment or dismissal is not enough to satisfy the whistleblowing provisions: there must be a causal link between the two. In Kong v Gulf International Bank Ltd, the Court of Appeal has upheld an EAT and tribunal decision that an employee who was dismissed following making a protected disclosure, in the course of which she questioned a colleague's professional competence was not automatically unfairly dismissed. The manner in which the employee criticised her colleague was properly separable from the protected disclosure as the reason for dismissal.
Ultimately, the question is what motivated the decision-maker for dismissing or treating the whistleblower in an adverse way. This was one of those unusual cases where it was possible to conclude that what motivated the decision to dismiss was not the protected disclosures, but rather, the whistleblower's lack of emotional intelligence and insensitivity in the way she conveyed personal criticisms of a colleague. A twist on the old adage "shoot the message not the messenger" sometimes you can "shoot the messenger's behaviour but not the message".
Pointless then prove it
A dismissed whistleblower may feel their whistleblowing has created a stigma that makes it more difficult for them to obtain employment elsewhere. Is it reasonable for a whistleblower simply not to bother to look at all for a new job? Or would that be an unreasonable failure to mitigate their loss? In Hilco Capital Ltd v Harrington, the EAT remind us that the whistleblower will need to show evidence that they have been prejudiced in the labour market. It is not enough to rely on the general proposition that whistleblowers can struggle to find fresh employment.
Business protection
Gentleman Hit the Road Jack
The general rule is that all contractual restraints on a former employee's freedom to work are void and unenforceable as being in restraint of trade and contrary to public policy unless they can be shown to be no wider than reasonably necessary to protect the employer's legitimate business interests. This year in Planon Ltd v Gilligan the Court of Appeal point out that where an interim injunction is sought to enforce a non-compete restriction:
- Even where the covenant is reasonable, there is no presumption in favour of interim injunctive relief. The Court retains a residual discretion to refuse an injunction where some particular hardship would be caused to the defendant.
- Damages may not be adequate to compensate the employee, where it is likely that the effect of the non-compete would be to deprive the employee defendant of income. Except in cases of very wealthy defendants, or where a claimant employer is offering paid garden leave for the whole period of the restraint, it is highly unrealistic to argue that damages would be an adequate remedy.
You're not going out (with that)
An employee is not entitled to remove and retain their ex-employer's confidential documents in breach of contract — even if they claim to be a whistleblower taking the information solely for the purposes of obtaining legal advice (Nissan Motor (GB) Ltd and another v Passi).
TUPE
The TUPEEP show
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) for there to be a 'service provision change' (SPC) the activities carried out after the transfer must be 'fundamentally' the same as those carried out before the transfer.
This year Tuitt v London Borough of Richmond Thames provides a useful example of where an activity was no longer fundamentally the same. The question of "fundamentally the same" is one of fact and degree for the tribunal's assessment. In this case, just because the label "CCTV monitoring" was added to a non-outsourced existing employee's list of job duties, did not necessarily mean the previously outsourced CCTV monitoring activity carried out before and after the transfer was fundamentally the same. As found in this case, the work had undergone a significant change from a full-time predominantly proactive monitoring service to an extremely limited and minimal reactive support service, meaning it was no longer fundamentally the same activity.
TU Pints of lager and a Package of SIPs
Under TUPE all of the transferor's "rights, power, duties and liabilities under or in connection with a transferring employee's contract" pass to the transferee. In Ponticelli UK Ltd v Gallagher the EAT warn that "in connection with" an employee's contract may extend to an employee's rights under a collateral contract to participate in his employer's share incentive plan (SIP). The right to participate in the SIP was found to be part of his overall financial "package". Accordingly, the transferred employee was entitled to participate in a plan of substantial equivalence with the transferee.
The Line of DuTUPE
In what is usually accepted as a given, the EAT in Clark v Middleton and another, expressly confirmed that the duty to notify employees (or their representatives) of the fact that a transfer is to take place includes notifying them of the identity of the transferor, including, if it is to be a limited company, the name of that company. This is not a "mere technicality" that can be ignored for the purposes of assessing compensation for breach.
Collective bargaining
Judicial Pulp Fiction
It has long been common practice by some employers to withdraw discretionary benefits from employees who take part in industrial action, however last year the EAT held that employers adopting practices of this kind were at risk of being held to have acted unlawfully.
In Mercer v Alternative Future Group Ltd the EAT departing from previous case law held that workers are protected from detriment short of dismissal for taking part in industrial action and in a bit of judicial legislative drafting added words to the relevant legislation to achieve this result. However, in March this year the Court of Appeal restored the orthodoxy confirming that UK legislation does not prevent an employer taking action short of dismissal in response to an employee's participation in industrial action. The EAT's attempt to re-write the relevant statutory provision (s146 TULRCA) would result in impermissible judicial legislative drafting, a matter that should be left to Parliament.
A further appeal to the Supreme Court is currently pending.
Cut Shorty
Under section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), employers are prohibited from making offers to employees with the sole or main purpose of undermining collective bargaining by the union (the prohibited result).
But just how wide is the scope of section 145B? In 2021, the Supreme Court in Kostal UK Ltd v Dunkley & ors held that an employer may make an offer directly to its workers in relation to a matter which falls within the scope of a collective bargaining agreement but only where the employer has first followed, and exhausted, the agreed collective bargaining procedure (this is likely to involve a considerable length of time). What an employer cannot do with impunity is make a direct offer to its workers, including union members, before the collective bargaining process has been exhausted.
This year, the cases of Ineos Infrastructure Grangemouth Ltd v Jones and ors and Ineos Infrastructure Grangemouth Ltd v Arnott and ors illustrate that where collective bargaining agreements are ill-defined, it may be more difficult to establish when the process is complete. Tribunals will objectively determine whether or not negotiations were at an end. An employer cannot cut short the process, or engineer an automatic end point, by simply calling something its 'best and final' offer. It is more difficult for employers to establish that collective bargaining has genuinely been exhausted where the collective bargaining agreement contains little detail and there is therefore greater ambiguity over how and when the process is at an end.
Employee consultation
Faulty Towers
This year we are reminded that where the choice of criteria adopted to select employees for redundancy has the practical result that the selection is made by that decision itself, consultation (whether collective or individual) should take place prior to that decision being made. This is because, in order to be genuine and meaningful, consultation must take place at a formative stage when an employee can still potentially influence the outcome. In Mogane v Bradford Teaching Hospitals NHS Foundation Trust, such a faulty consultation process meant the inevitable selection of Ms Mogane for redundancy was unfair.
All Employers Great and Small
We are also reminded that while a pool of one can be fair in appropriate circumstances, it should not be considered without prior consultation. Employees should have an opportunity to challenge their selection and/or put forward alternatives. The general requirement for some warning and consultation remains even in the case of a small employer and where a pool of one is reasonable (Teixeira v Zaika Restaurant Ltd).
The not so Big Easy
Following the end of the Brexit transition period, some sections of the Transnational Information and Consultation of Employees Regulations 1999 (TICE) have been repealed. Nevertheless the EAT has held that the Central Arbitration Committee continues to have jurisdiction to hear complaints about the operation of a European Works Council (EWC) where the central management is situated in the United Kingdom (easyJet PLC v easyJet European Works Council and another). This leaves affected employers having to administer dual EWCs—one EWC under the EWC Directive based in the EU and one UK EWC which is not recognised by the EU or under the Directive, but which retains a life of its own under parts of the amended TICE Regulations.
Fire & rehire
The practice of "fire & rehire" ("dismissal & re-engagement" in old money) has come under increasing scrutiny from the public and politicians in 2022.
The Paytrix Reloaded
In March the High Court in USDAW & others v Tesco Stores Limited implied a contractual term and granted an injunction restraining Tesco from 'firing and rehiring' employees in order to remove a contractual entitlement to enhanced pay known as "Retained Pay". The entitlement, which was negotiated as a retention incentive at a time when Tesco was reorganising its distribution centres, was stated to be 'permanent' and was intended to last for as long as the employee remained in the same role. In these unusual circumstances, the High Court held that it was appropriate to imply a contractual term preventing Tesco from exercising its right to terminate on notice for the purpose of removing or diminishing the employee's entitlement to the Retained Pay.
The Paytrix non-Revolutions
However, in July, the Court of Appeal allowed Tesco's appeal against the High Court's decision returning to the orthodoxy on the interpretation of a contract containing an express termination on notice clause. The Court of Appeal has held that the High Court was wrong to find that pre-contractual statements showed that both parties intended that the entitlement should be permanent in the sense that the contracts would continue for life, or until normal retirement age/closure of the workplace, or that the circumstances in which Tesco could terminate the contracts should be limited.
Although the Retained Pay provisions incorporated into the contracts specified no time limit, nor was there a 'sunset clause', the express terms of the contracts also included a standard termination on notice clause. As such, under the contracts, Tesco has the right to give notice in the ordinary way, and the entitlement to Retained Pay would only last as long as the particular contract remained in force. The Court of Appeal went so far as to say that the Retained Pay clause would have had to include wording such as "provided the site remains open Retained Pay will continue until you reach the age of 65" in order for employees to counter the termination on notice clause.
The Paytrix Resurrections?
But we're not yet at the end of the saga. A further appeal to the Supreme Court is currently pending.
Terminations
Employers Behaving Badly
Before turning to the 2022 case law lessons on terminations, we begin with the biggest non-case law lesson of 2022 - the P&O sacking of 800 ferry workers without notice or consultation. In this case, P&O simply dismissed staff without notice offering an enhanced redundancy payment provided the dismissed employees quickly signed a settlement agreement.
What P&O did was to make a commercial decision to simply dismiss the existing UK workforce falling foul of the protection from unfair dismissal laws under the Employment Rights Act 1996 for those with at least two years' service. Given that the staff were seafarers existing redundancy collective consultation laws under s188 TULRCA 1992 did not apply.
The P&O situation highlights that for the most part, UK employment law concentrates on providing some financial compensation to employees whose rights have been ignored, rather than ensuring that employers comply with the law in the first place. Due to a particular loophole concerning seafarers the financial consequences of ignoring the law were cheaper for P&O compared to the majority of employers who will be subject to consultation requirements, which contain significant financial sanctions and a little used possible criminal sanction. For a large part, P&O merely calculated the financial and adverse publicity consequences of ignoring the law and decided those were outweighed by the business benefits of doing so.
But employers beware as the potential cost of ignoring rights is likely to go up under a proposed new Statutory Code of Practice expected in the new year.
Employees Behaving Badly
In Hope v British Medical Association, the EAT held that it is possible to fairly dismiss an employee for raising numerous vexatious and frivolous grievances which the employee refused to progress or withdraw. As ever each case will be fact specific, Employers should continue to always carefully consider the merits of each grievance an employee raises and follow the appropriate procedure. Nevertheless, this case may come as a relief to managers who find themselves in an endless and self-perpetuating cycle of minor grievances about minor grievances.
The COVID eXit Files
Employment tribunal claims citing health and safety concerns were up three-fold last year. Section 100 of the Employment Rights Act 1996 provides employees with protection from dismissal for exercising their rights to leave the workplace and take steps to protect themselves where they reasonably believe there is serious and imminent danger to health and safety at their place of work.
This year we have the first appellant level s100 "COVID-19 fears" judgment, Rodgers v Leeds Laser Cutting Ltd. The EAT upheld the tribunal's decision that an employee who was dismissed after he refused to return to the workplace during the coronavirus pandemic was not automatically unfairly dismissed under s100. The EAT held:
- It is not necessary for the circumstances of the danger to be generated by the workplace itself or that any harm that might be caused by the circumstances of danger will occur at the employee's place of work, or to the employee or fellow employees. The COVID-19 pandemic created at least some circumstances of danger at work and elsewhere and so the 'circumstances of danger' requirement under s100 may potentially be met. BUT…
- While conditions pertaining to COVID-19 could potentially amount to circumstances of serious and imminent danger in principle, an employee cannot rely on s100 to refuse to work in any circumstances simply by virtue of the pandemic. The employee still needs to establish that circumstances of serious and imminent danger prevented them returning to their place of work.
In this case, the employer had put in place good social distancing, hand-washing, ventilation and other precautions. The evidence was that the employee would not have returned no matter what precautions were put in place. The EAT upheld the tribunal's dismissal of the claim, as the employee did not believe there to be a serious and imminent danger in the workplace, but rather a serious and imminent danger in the world at large. The employer had put in place the recommended measures to reduce the risk of infection in the workplace. In addition, the employee could reasonably have taken other steps to avert the danger and there was evidence that the employee was not acting in a risk adverse manner outside the workplace.
But, more to come, we currently await Court of Appeal guidance following the hearing of the further appeal in this case on 3 November.
The Vanishing Dismissal
For there to be an unfair dismissal, there does of course need to be a dismissal. This year we are reminded of two scenarios where there is simply no dismissal:
- It is inherent in the very concept of an appeal of a dismissal, that if successful the dismissal falls away – the so-called vanishing dismissal. This remains the case even if the employee makes it clear during the appeal process that they do not wish to return to work for the employer, instead wanting to clear their name and compensation (Marangakis v Iceland Food Ltd).
- Where an employee gives notice of resignation and the employer then brings forward the termination date by making a payment in lieu of notice pursuant to a contractual term, there is no dismissal by the employer – the non-vanishing resignation! (Fentem v Outform EMEA Ltd).
The Politics no-Show
Where the reason, or the principal reason, for dismissal relates to the employee's political opinions or affiliation, then the two-year qualifying service requirement to bring an unfair dismissal claim is disapplied. In Scottish Federation of Housing Associations v Jones the EAT clarified that this only applies where the dismissal relates to the content of the employee's political opinion or the particular identity of the political party they are affiliated with. A requirement to appear to be politically neutral is not a requirement that relates to someone's political opinions or affiliations for these purposes.
Settlement agreements
Section 147 of the Equality Act 2010 requires, amongst other things, that a valid settlement agreement must be in writing and must 'relate to the particular complaint'. There has been much debate over the years about the meaning of the must 'relate to the particular complaint' statutory requirement and the ability to settle future potential claims.
eXit Men: the days of Future Past
In Arvunescu v Quick Release (Automotive) Ltd the Court of Appeal has upheld the EAT judgment that a widely worded COT3 agreement stated to apply to any claims arising 'directly or indirectly out of or in connection with' his employment can settle a subsequent claim of knowingly assisting an act of victimisation. As regards the settling of future potential claims, the purpose of the COT3 was to settle claims connected with the claimant's employment that existed as at the date the COT3 was entered into, whether or not they were known about at that date by the potential claimant. In this case, crucially the act of potential victimisation complained of occurred before the COT3 settlement was signed and was therefore caught by the COT3.
eXit Men Origins
But can a settlement agreement/COT3 be drafted so as to protect an employer from claims whose cause of action only arose after the date the settlement agreement/COT3 was entered into?
In Bathgate v Technip UK Ltd the EAT sitting in Scotland has controversially held that the "relates to the particular complaint" requirement in s147 of the Equality Act 2010 does not allow for the settlement of a future claim where the cause of action has not yet arisen. Settlement can only be of either an actual existing complaint or where the grounds for complaint existed when settling (as in Arvunescu).
Fraud
We finish our case law round up with a little tale from the Supreme Court this year…
The Thief, His CV and the NHS Chairs
In most cases of CV (curriculum vitae) falsehoods coming to light after an individual is in post, the employment contract will simply be immediately terminated due to the employee committing a fundamental breach of contract. In these circumstances, the employer will usually be entitled to summarily dismiss the employee without notice. See our September 2018 Employment Essentials for an example of a cargo pilot providing a false reference from the fictitious Capt Desilijic Tiure – better known as Jabba the Hutt of Star Wars fame!
Some cases of CV fraud can amount to criminal offences of obtaining a pecuniary advantage by deception, contrary to s.16 (1) of the Theft Act 1968 and fraud (by false representation) under the Fraud Act 2006 resulting in a custodial sentence.
The tale of Mr Andrewes…
Episode 1 The Dream: An unqualified man has big dreams of a top job. Who needs qualifications when one had innate ability? But how to get a top job quickly? A cunning plan forms! Why not just pad his CV? He throws in a number of prestigious university degrees, as well as significant work experience – well if you are going to lie you may as well go big. He sends of his applications confirming that all information is accurate.
Episode 2 Living the Dream: He is ecstatic to land a post as CEO at a hospice with its £75,000 annual salary. He gets on with his new job managing to avoid any questions to verify his CV. Two years on, he falsely claims to have recently obtained a PhD, insisting that he should thereafter be referred to as Dr Jon Andrewes with all references to him in the hospice's materials and website being updated.
Episode 3 A Dream too far: Jump ahead a decade, he goes for a top job in an even bigger pond and lands lucrative roles as Chair of two NHS Hospital Trusts! But wait, enter the feisty HR professional who chases the references and degree confirmations – she will not be deterred by evasive replies blaming misspellings of his name Jon Andrewes as John Andrews.
Episode 4 It all unravels: Our feisty HR professional has proved his lies – Hooray you cheer! Mr Andrewes pleads guilty to one count of obtaining a pecuniary advantage by deception and two counts of fraud and sentenced to two years' imprisonment.
Episode 5 the POCA: Should Mr Andrewes be stripped of the earnings received from his fraudulently obtained employment net of tax amounting to £643,602.91? Can the confiscation regime under the Proceeds of Crime Act 2002 (POCA) apply in a case of CV fraud? The Crown Court thought yes subject to the standard "recoverable amount" calculation being made under the POCA – put simply the amount which the defendant still has to pay a confiscation order. In Mr Andrewes case it was assessed at £96,737.24.
Episode 6 Mr Andrew's ego boost: Despite his fraud conviction, Mr Andrewes still believes he did a good job as a CEO. He appeals and somewhat surprisingly, the Court of Appeal quashed the confiscation, in the employment context, restoration did not mean returning the amount of remuneration received. As Mr Andrewes had performed the services required of his employment competently, full restoration had already occurred.
Episode 7 the principled middle way: Enter the Supreme Court. On the one hand, it would be disproportionate to make a confiscation order of the full net earnings without making any deduction for the value of the services rendered. On the other hand, it was unacceptable for no confiscation order to be made. The fraudster would have to give up any "profit" they made through their lies, but account would be taken of the fact that the employers did receive value in the form of services rendered. Taking this principled middle way, a confiscation order of £244,568 would be proportionate. As the assessed "recoverable amount" was £96,737.24, the confiscation order for that amount was restored.
Postscript: The importance of checking qualifications and job history during the recruitment process! Perhaps the producers of the recent telly drama "The Thief, His Wife and the Canoe" will follow up with "The Thief, His CV and the NHS Chairs".
The 2022 awards (drum roll please…)
The 'Best Case Name' Award
and the winner is… Mr Tydeman v Oyster Yachts Ltd
Now added to our list which begins with the 1986 classic of Faccenda Chicken v Fowler and includes, the 2018 Mr Spaceman v ISS (OK the full name of the employer is ISS Mediclean Ltd, but to the author ISS will always mean 'International Space Station'!)
The "Sign of the Times" Award
and the winner is…The Lord Chief Justice and Senior President of Tribunals
For announcing on 1 December that going forward, Employment Judges and Judges of the Employment Appeal Tribunal are to be addressed as Judge, not Sir/Madam.
The "Best judicial use of Culture" Award
and the winner is…EJ Goodman
For quoting Milton in Bailey v Stonewall Equality Ltd regarding Ms Bailey's expressed hostility towards Stonewall's campaigning as simply "part of the 'dust and heat' (Milton: Areopagitica) generated by the conflict of opinion that must nonetheless be tolerated to avoid the greater evil of censorship"
The "Nice Try" Award
and the winner is… an avid Rangers FC fan
For his unsuccessful unfair dismissal and discrimination claims. To get round the fact that he had less than two years' service, he unsuccessfully argued that supporting Ranges FC amount to a protected philosophical belief.