Frontline UK Employment Law Update Edition 5 2021 - Case Updates
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Partner
UK
I'm a partner in our International HR Services group, which I co-head, based in London. I have more than ten years' experience advising clients on complex employment law issues.
Partner
UK
I am a partner specialising in employment law. I am based in our London office but work as part of the International HR Services team. I work for a wide range of clients, companies and individuals, advising on a wide range of issues and helping them to resolve employment law issues.
Partner
UK
I'm a London-based partner in our International HR Services group and head of our London Employment team.
1. All Answers Ltd v W and Another [2021] EWCA Civ 606
2. Khatun v Winn Solicitors Ltd ET/2501492/2020
3. Nursing & Midwifery Council v Somerville UKEAT/0258/20
4.Sinclair v Trackwork Limited UKEAT/0129/20
5.Wisbey v The Commissioner of the City of London Police and College of Policing [2021] EWCA Civ 650
1. All Answers Ltd v W and Another [2021] EWCA Civ 606 - LINK
In this case the Court of Appeal ("CA") allowed an appeal against the decision of the Employment Tribunal ("ET"), which had held that the Claimants were disabled for the purpose of section 6 and Schedule 1 Equality Act 2010 ("EA 2010").
There were two Claimants in this case, one of whom contended that she suffered from post-traumatic stress disorder, and both of whom contended that they suffered from depression and anxiety. The Claimants alleged that they were subject to an act of disability discrimination, or alternatively failure to make reasonable adjustments, by their employer in relation to a change of seating arrangements at work.
Section 6 of the EA 2010 defines a disability as a physical or mental impairment with a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities, and Schedule 1 of the Act defines "long-term" as lasting or likely to last at least 12 months.
The CA held that the ET had erred in its assessment of the Claimants' mental impairments and whether they amounted to a disability for the purposes of the EA 2010. The ET's decision referred to evidence covering the period after the alleged acts in support of a finding that the substantial adverse effect of one of the Claimants' conditions was likely to last 12 months. Further, the language used by the ET in its judgment suggested that it had assessed the question of whether the Claimants were disabled by reference to the Claimants' circumstances at the time of the hearing, which took place more than one year after the date of the alleged acts of discrimination. The CA held that the question of whether a claimant is disabled must be determined by reference to the date of the alleged acts of discrimination. The ET should therefore have considered whether the impairment existed at the time of those acts and whether the effects were likely to last for at least 12 months after that date.
This case highlights just one of the complexities of the law on disability discrimination and serves as a reminder to employers that the question of whether a worker is disabled for the purposes of the EA 2010 may not always be as straightforward as it appears. Employers faced with disability discrimination claims should examine very carefully any evidence put forward by the claimant in support of the contention that they are disabled, and consider whether, in light of that evidence, it is appropriate to concede the point or have the issue determined by a tribunal.
2.Khatun v Winn Solicitors Ltd ET/2501492/2020 - LINK
In this case, the Employment Tribunal ("ET") held that a solicitor had been unfairly dismissed for refusing to agree to changes to her employment contract that would have reduced her pay and hours to 80% or placed her on furlough.
Due to a reduction in work during the COVID-19 pandemic, the Respondent firm of solicitors placed 50% of its staff on furlough and required the remainder to cover for the furloughed staff. The Claimant was one of the more experienced solicitors at the firm and so was not selected for furlough. The Claimant was informed of the Respondent's plans and asked to agree to a non-negotiable variation in her contract which gave the firm the freedom to place her on furlough or to unilaterally reduce her hours and pay by up to 20%, on five days' notice. She was sent a contract variation agreement and instructed to sign and return it within 24 hours, failing which she would face immediate dismissal. The Claimant informed HR that she was not willing to agree to the variation, as she was continuing to perform the job she had been contracted to do, and that if she were to be furloughed or any other unexpected situation were to arise, she would consider agreeing to the variation at that point.
Following some brief exchanges in which the Respondent re-iterated that the variation was non-negotiable and the Claimant would be dismissed if she did not agree to it, the Respondent terminated the Claimant's employment immediately with no notice, pay in lieu, or accrued holiday pay. The Claimant subsequently brought a complaint to the ET on the basis that her dismissal was unfair contrary to s.94 of the Employment Rights Act 1996 (“ERA”).
The ET held that the Respondent had "sound, good business reasons" for seeking the variation given the effects of the pandemic and found that the Respondent was not premature in planning for the worst and taking the steps it did. The Employment Judge held that in these circumstances, the Claimant’s refusal to sign the contract variation agreement amounted to "some other substantial reason" of a kind to justify her dismissal and was therefore a potentially fair reason within the scope of ERA. However, the question then arose as to whether this was a sufficient reason for dismissal.
The Employment Judge emphasised that meaningful consultation is an important factor in a fair process. The Claimant was dismissed within around 48 hours of receiving the new terms, during which time a reasonable employer would have been expected to engage meaningfully with the Claimant in an attempt to address her concerns. Instead the exchanges were one-sided, and the Respondent did little more than restate the firm’s position that in the absence of agreement dismissal would follow. The Respondent also did not reasonably explore alternatives to dismissal, nor offer the Claimant an opportunity to appeal against her dismissal. The Employment Judge found it surprising, especially for a firm of solicitors, that so little regard was had for the fact that the Claimant’s existing terms were contained in a legally binding contract and all the Claimant was seeking to do was protect her contractual position at that time, while also indicating she would consider the variation should the need arise in the future.
Given these various factors, the Employment Judge was not satisfied that the dismissal fell within the band of reasonable responses and specifically, held that it was not reasonable to treat the reason of "some other substantial reason" as sufficient to justify dismissal. The dismissal was held to be unfair and the ET ordered a separate remedy hearing.
This case underlines that dismissal for refusal to agree to a variation of contract will only be deemed fair if the employer has a sound business reason for varying the contract and the employer has followed a fair procedure prior to dismissal. During the COVID-19 pandemic, seeking urgent changes to terms and conditions with the threat of dismissal and re-engagement on revised terms has become a widespread occurrence, so much so that the issue was recently debated in parliament and the government has asked ACAS to investigate.
3.Nursing & Midwifery Council v Somerville UKEAT/0258/20 - LINK
In this case the Employment Appeal Tribunal ("EAT") upheld an Employment Tribunal’s ("ET") decision that there is no requirement for mutuality of obligations between an individual and the entity engaging him/her for work in order for the individual to satisfy the statutory definition of worker. The Claimant was a panel member chair of the Respondent’s Fitness to Practice committee for four-year terms from April 2012 and 2016. In 2018 he claimed unpaid holiday pay from the Respondent on the basis that he was either an employee or a worker with rights under the Working Time Regulations 1998 (“WTR”).The ET concluded that the parties’ relationship was governed by a series of individual contracts applicable each time the Claimant agreed to sit on a hearing, as well as an overarching contract, set out in the appointment letters and Panel Member Services Agreement and applicable for each of the two four-year terms of appointment. The Claimant had no right of substitution and agreed to provide his services personally. Further, the Respondent was not a client or customer of a profession or business carried on by the Claimant. However, the contracts between the Claimant and the Respondent were not contracts of employment as the Claimant was under no obligation to offer or accept a minimum number of sitting dates and was free to withdraw from accepted dates. This meant that there was insufficient mutuality of obligation to establish employee status. However, the ET court held that the Claimant was a worker within the meaning of section 230 of the Employment Rights Act 1996 ("ERA") and regulation 2(1) of the Working Time Regulations 1998 ("WTR") and thus entitled to paid holiday.
The Respondent appealed, arguing that the absence of any obligation on the Claimant to accept and perform a certain minimum amount of work was incompatible with the proposition that he was a worker, because this “irreducible minimum” of obligation is a prerequisite to worker status. The EAT reviewed the extensive case law on the issue, and dismissed the appeal, concluding that mutuality of obligation, in the sense of there being an irreducible minimum of obligation to accept and carry out a minimum amount of work, was not a necessary component of worker status.
This case is the latest in a long line of decisions concerning worker status and it is useful for employers in clarifying that whilst the existence of a contract is a prerequisite for a finding of worker status, there is no further requirement that a worker accepts and performs a minimum amount of work, nor is there a requirement that the employer offers such work. Employers should therefore be cautious when hiring individuals as independent contractors - the mere fact that there is no obligation to provide work or for the individual to accept it will not preclude a finding of worker status.
4.Sinclair v Trackwork Limited UKEAT/0129/20 - LINK
In this case, the Employment Appeal Tribunal ("EAT") found that the Employment Tribunal ("ET") had wrongly held that a dismissal was not automatically unfair where it had resulted from "upset" and "friction" caused by how the Claimant employee performed his health and safety duties.The Claimant was employed as a Track Maintenance Supervisor. He was tasked by the Respondent employer with implementing a new safety procedure. However, the Respondent had not told the Claimant’s colleagues about the task, and they raised concerns about what the Claimant was trying to do and his "overcautious and somewhat zealous" approach. The Respondent dismissed the Claimant, relying on the "upset" and "friction" that his activities had caused as a reason for dismissal. The Claimant claimed that his dismissal was automatically unfair under s.100(1)(a) of the Employment Rights Act 1996 (“ERA”) on the basis that the reason or principal reason for his dismissal was that, having been designated to carry out health and safety activities, he carried out such activities. The ET dismissed the claim, finding that although the Claimant had only been doing what he was instructed to do, the reason for dismissal was the fact that its workforce had become demoralised by the way in which the Claimant’s health and safety activities were being managed (rather than the health and safety activities themselves). The Claimant appealed.
The EAT allowed the appeal, finding that in circumstances where the Claimant’s health and safety related activities did not exceed his mandate and were not found to be malicious, untruthful or irrelevant to the task in hand, the manner in which those activities were carried out was not properly separable from the carrying out of those activities itself. The ET had erred in finding otherwise. The mischief which s.100(1)(a) of ERA seeks to guard against includes the fact that carrying out such activities will often be resisted, or regarded as unwelcome, by other colleagues. It would wholly undermine that protection if an employer could rely upon the upset caused by a legitimate health and safety activity as a reason for dismissal. A finding that the dismissal was for an automatically unfair reason was substituted and the matter was remitted to the ET to consider remedy.
This case demonstrates the broad protection afforded to employees carrying out health and safety activities on their employer's behalf under section 100(1)(a) of ERA, including the manner in which those activities are conducted. The finding in this case is also particularly pertinent given the significant rise in cases concerning health and safety protection in the context of COVID-secure workplaces, and the increased steps employers (and their staff) have had to take to maintain health and safety at work during the last 12 months.
5.Wisbey v The Commissioner of the City of London Police and College of Policing [2021] EWCA Civ 650 - LINK
In this case, the Employment Appeal Tribunal (“EAT”) upheld an Employment Tribunal’s (“ET”) decision that indirect discrimination had occurred but was unintentional, and the Court of Appeal (“CA”) held that the provisions of the Equality Act 2010 (“EA 2010”) dealing with remedies for unintentional unlawful indirect discrimination were compatible with EU law.The Claimant is a police officer employed by the Respondent police force. He was an authorised firearms officer (“AFO”) and has a form of defective colour vision. Although this did not have any obvious effect on the Claimant’s ability to discharge his duties, his employer removed him from his AFO role and later also removed him from advanced driving duties. He was subsequently reinstated to both roles after undergoing further colour vision tests.
The Claimant made a claim of unlawful indirect discrimination in the ET. He argued that because 8% of men and only 0.25% of women suffer from colour vision defects, the requirement that he undergo various tests placed him and other male officers at a disadvantage and was therefore indirectly discriminatory on the ground of sex. The ET upheld the Claimant’s claim for unlawful indirect sex discrimination in relation to his removal from advanced driving duties but did not make an award of compensation for injury to feelings. It found that the discrimination was unintentional: the Respondent was not aware that the Claimant or males in general would be at a disadvantage as a result of the requirement to pass colour vision tests. The EA 2010 states that where indirect discrimination is held to be unintentional, a tribunal must not award compensation unless it has first considered whether to make a recommendation or a declaration.
The Claimant’s case went to the CA to determine whether the EA 2010 was compatible with EU law, in particular the Council Directive 2006/54/EC; the Charter of Fundamental Rights; and the European Convention for the Protection of Human Rights and Fundamental Freedoms, which enshrine individual rights to an effective remedy for sex discrimination. In particular, the Equal Treatment Directive requires compensation or reparation to be “dissuasive and proportionate” to the damage suffered. The Claimant argued that the EA 2010 is not compatible because it imposes an additional threshold before any consideration can be given to awarding compensation, meaning that the remedies available for this form of discrimination are neither effective nor dissuasive.
The CA dismissed the appeal, holding that the EA 2010 does not present an obstacle to a tribunal awarding compensation where loss occurs as a consequence of established unlawful but unintentional indirect discrimination. The tribunal has the power to decide which remedy is appropriate and can award compensation even where another remedy is applied. The CA noted that “if loss or damage have been sustained as a consequence of the indirect discrimination suffered, it is to be expected that compensation will be awarded”. In this case, the ET had found that the Claimant suffered no loss as a result of the discrimination.
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