Latest Employment Law case updates - Edition 10 2019

1. EAT endorses removal of pro-employee findings from investigation reports

2. Dismissal for religious refusal to use preferred pronouns not discriminatory

3. EAT reminds employers of limits of protected conversations

4. Dismissal following dispute over rest break constitutes unlawful detriment

5. Unwanted massage by female manager did not constitute harassment

6. Employee awarded £2 million for invention of "outstanding benefit" to employer

1. EAT endorses removal of pro-employee findings from investigation reports

Dronsfield v The University of Reading (EAT)

The EAT has held that an employer which had, on the advice of a solicitor, removed findings helpful to an employee in an investigation report had not subsequently unfairly dismissed that employee on the grounds of misconduct. This was because investigative reports should be limited to factual findings and recommendations as to whether or not disciplinary action is warranted. Evaluative conclusions should follow a formal hearing.

This case centred around an internal investigation into a university professor who had been accused of having sexual relations with a student. The initial drafts of the investigation report had included some evaluative conclusions as to the severity of his actions which were favourable to him, but which were subsequently removed upon review by the university's in-house lawyer. The professor was subsequently dismissed for gross misconduct and brought a claim for unfair dismissal after exhausting an internal appeal procedure. The Employment Tribunal found the dismissal to be fair and the professor's appeals were rejected.

The EAT was satisfied that the Tribunal had properly considered the procedural fairness of the dismissal, holding that the involvement of an in-house lawyer to review an investigation and recommend that it be amended to reflect factual findings and recommendations as to disciplinary action only was permissible. The Tribunal had legitimately found that no evidential material had been withheld from the disciplinary panel and no undue pressure had been placed on the investigating officers. A comprehensive appeal process had verified the reports and noted the reasons for the change.

This judgment highlights the importance of treating investigations and disciplinaries as two separate processes when considering a conduct dismissal. The proper role of an investigating officer is simply to find facts and recommend whether or not formal disciplinary action is necessary. Opinions as to the merits of the case or recommendations as to a particular sanction are not appropriate at the investigative stage. To help the investigative process, employers may wish to ensure the matters for investigation are narrowly defined and the investigator is given appropriate training and clear instructions.

2. Dismissal for religious refusal to use preferred pronouns not discriminatory

Mackereth v Department for Work and Pensions and another (Employment Tribunal)

An Employment Tribunal has ruled that it was not discriminatory to dismiss an employee when he refused to address transgender patients using their preferred pronouns. In its view, the employee's conscientious objection to trangenderism due to his Christian beliefs was not capable of protection as a religious or philosophical belief under the Equality Act 2010 ("EqA"), on the basis that such views were incompatible with human dignity and conflicted with the fundamental rights of others.

During a session on how physicians should refer to transgender patients in line with internal policy, the employee in question said that whilst the name of a patient is not a problem, he would not use pronouns inconsistent with a person's birth gender due to his Christian faith. His employer said that they would not let him work with patients directly until he agreed to use their preferred pronouns, and because he refused, he was dismissed.

The employee's claims of discrimination on the grounds of his religion or belief were rejected. The Tribunal held that whilst he genuinely held his religious beliefs, any employee (regardless of religion / belief) who failed to refer to transgender people by their preferred pronouns in line with internal processes policy would be sanctioned. Furthermore, the protection of religious and philosophical beliefs must be balanced against the rights of others and the employee's refusal here was, in the Tribunal's view, incompatible with human dignity and the fundamental rights of transgender individuals. The judgment represents an important illustration for employers, who are increasingly faced with making sensitive judgements between competing values and protected characteristics. Organisations would be well advised to update internal processes and protocols, including equal opportunities policies, to make their stance on inclusion clear; this will be crucial in justifying future value judgments in the event they are necessary.

3. EAT reminds employers of limits of protected conversations

Harrison v Aryman (Employment Appeal Tribunal)

In a reminder to employers as to the limits of "protected conversations" under s.111A Employment Rights Act 1996 ("ERA"), the EAT has provided guidance on how Tribunals should approach limits to the inadmissibility of "protected conversations" in circumstances where: (i) claims other than ordinary unfair dismissal are made; (ii) claimants allege "impropriety" on the part of their employer.

In this case, the Claimant resigned claiming constructive, automatically unfair dismissal as well as sex and pregnancy or maternity discrimination. In her claim, she referred to a letter from her employer headed "confidential settlement proposal" which offered a mutual agreement as to the termination of her employment on agreed terms. Whilst the Respondent argued that this material should not be admissible as it formed part of pre-termination negotiations, a.k.a. a "protected conversation" under s.111A ERA, her position was that the statutory exceptions to this protection applied, namely that: (i) her claim related to an automatically unfair dismissal; and (ii) the employer had acted "improperly" when making the offer.

The EAT's judgment provides guidance on the extent to which tribunals will take steps to consider the limits to "protected conversations" when this issue is raised by a Claimant. In particular, it noted that:

• where a Claimant formulates a claim alleging that they have been automatically unfairly dismissed, all relevant pre-termination negotiations will be admissible without the Tribunal having to make a specific finding on that issue; and

• where employer "impropriety" is alleged, a Tribunal should hear specific evidence on that point and decide to what extent it would be "just" to admit evidence of pre-termination negotiations.

This decision is a useful reminder that employers may not use "protected conversations" as a blanket measure to apply in all cases; the extent of protection offered will depend on the relevant individual's prospective claims and the processes which are followed. Whilst the scope of "improper" conduct remains somewhat ambiguous, any steps which are objectively unreasonable such as threats against the employee, attempts to "gag" unlawful conduct and even the setting of tight deadlines are theoretically capable of falling within this exception. Employers should therefore take advice on a case by case basis.

4. Dismissal following dispute over rest break constitutes unlawful detriment

Pazur v Lexington Catering Services Ltd (EAT)

The Employment Appeal Tribunal has held that an employee who was denied his minimum entitlement to rest breaks under the Working Time Regulations 1998 ("WTR"), subsequently refused to work and was then dismissed by his employer for doing so had suffered an unlawful detriment for refusing to forego his WTR rights.

In this case, the Claimant worked as a kitchen porter for a catering company and had been denied his statutory right to a 20 minute rest break whilst working an 8 hour shift for a particular client. When subsequently reassigned to the same client, the Claimant refused to work on the basis that he had not previously been permitted adequate rest breaks in line with his WTR entitlements. He was promptly dismissed and brought claims against his employer on the basis that: (i) the threat of dismissal was an unlawful detriment flowing from his refusal to comply with an order which contravened the WTR, as prohibited by the Employment Rights Act 1996 ("ERA"); and (ii) the dismissal was automatically unfair as a result.

Whilst the Employment Tribunal rejected his claims on the basis that the Claimant's refusal to work (and subsequent dismissal) had been influenced by factors other than the refusal to grant adequate rest breaks, the EAT considered that the two issues were clearly linked and it could fairly be said – based on the Tribunal's findings of fact – that the refusal to work had materially influenced the decision to dismiss. This was sufficient for the unlawful detriment claim to succeed. The automatic unfair dismissal claim was remitted to the Tribunal to assess whether the refusal to work was the "sole or principal reason" for the dismissal.

This case reiterates the importance of dealing sensitively with any employee allegations that statutory rights, including those arising under the WTR, have been infringed. Many claims for automatically unfair dismissal do not require two years' continuous service and the relatively loose causal link required by the EAT between the initial breach and subsequent detriment / dismissal could invite speculative claims from employees who would otherwise have limited protection against dismissal.

5. Unwanted massage by female manager did not constitute harassment

Raj v Capita Business Services Limited (Employment Appeal Tribunal)

The EAT has held that a female manager who had given an unwanted massage to a junior colleague had not subjected him to unlawful harassment, on the basis that such actions did not constitute conduct of a sexual nature or "related to sex" as required under the Equality Act 2010 ("EqA").

Following his dismissal, the Claimant in this case alleged that his team leader had subjected him to harassment of a sexual nature and/or related to sex by giving him unwanted shoulder, neck and back massages whilst sitting at his desk. She denied this, arguing that she had done no more than tap his shoulders on one occasion by way of encouragement.

The Employment Tribunal rejected the claim. Although it was satisfied that such conduct – which it accepted lasted for two to three minutes at a time – was unwanted and had the necessary effect of creating a degrading environment for the Claimant, it did not consider that the actions were of a sexual nature or related to the Claimant's sex, as required under the EqA. Whilst it accepted that the conduct was unwise and uncomfortable, it placed weight on the fact that the relevant contact was with a "gender neutral" area of the body in an open plan office and could properly be characterised as "misguided encouragement".

The EAT dismissed the Claimant's appeal, stating that the Tribunal's procedural approach was sound. In particular, it confirmed that the Tribunal's rejection of the manager's factual account did not require it to infer, or operate on a presumption, that the reason for her conduct fell within the scope of EqA's prohibitions.
Employers should note that the EAT's decision in this case was procedure-focussed and did not question the Tribunal's findings of fact, which were ultimately crucial to the outcome. Discrimination and harassment cases are highly fact- and context-specific, to be assessed on a case-by-case basis. It would, for example, be interesting to see whether or not the Tribunal would have reached the same conclusion had the manager in this case been male and the Claimant female.

6. Employee awarded £2 million for invention of "outstanding benefit" to employer

Shanks v Unilever Plc and others (Supreme Court)

The Supreme Court has upheld an award of £2 million in favour of an employee on the basis that his invention was of "outstanding benefit" to his employer and should therefore qualify for compensation under the statutory invention recognition scheme under the Patents Act 1977. This case is of real significance for all innovative businesses since it potentially increases the level of exposure to claims by their research employees to a share of the benefit derived from their invention.

Chris de Mauny, in our Intellectual Property team, has written a detailed summary of the implications of this case, which is available here.