Frontline UK Employment Law Update Edition 13 2022 - Case Updates

1. Allen v Primark Stores Ltd [2022] EAT 57 (8 April 2022)

2. White v HC-One Oval Ltd [2022] EAT 56 (7 April 2022)

3. Clark v Middleton and Another [2022] EAT 31

4. Nursing and Midwifery Council v Somerville. Court of Appeal, 2022 EWCA Civ 229

1. Allen v Primark Stores Ltd [2022] EAT 57 (8 April 2022) - LINK

In this case, the Employment Appeal Tribunal ("EAT") held that where an employee brings an indirect discrimination claim, the Employment Tribunal (“ET”) must be careful to construct a comparison pool that accurately addresses the provision, criterion or practice ("PCP") pleaded by the Claimant rather than to redefine it.

The Claimant worked for the Respondent as a store department manager. She went on maternity leave and before returning to work, she foresaw issues with childcare responsibilities and her job. In particular, she was concerned that she would be unable to meet the Respondent’s requirement that all department managers guarantee their availability to work late shifts. Before she was due to return to work, she made an application under the Respondent's flexible working policy for a change to her contractual hours. The Respondent did partially accommodate the Claimant's request, but still required her to guarantee availability to work the Thursday late shift every week on the grounds that there was not sufficient flexibility in the management team to accommodate her request to have different hours. The Claimant's childcare difficulties meant that she was unable to guarantee her availability to work those shifts and she ultimately resigned.

She claimed indirect sex discrimination, arguing that the Respondent’s requirement that department managers had to guarantee their availability to work Thursday late shifts was a PCP which put women at a disadvantage when compared to men because of childcare responsibilities, that she had been put at this disadvantage and that the PCP was not a proportionate means of achieving a legitimate aim.

To assess the discriminatory impact of the PCP, the ET constructed a comparison pool that included all the department managers in the Claimant’s store who might be asked to work Thursday late shifts. The pool included two male department managers who had an implied contractual right not to work Thursday late shifts (also due to childcare commitments), but did so in emergencies. The ET considered the PCP in relation to this pool, concluding that it applied to both men and women and therefore did not disadvantage women disproportionately.

The Claimant appealed to the EAT, arguing that the pool had not been identified correctly. The EAT agreed that the ET had failed to address the specific PCP pleaded by the Claimant when constructing the comparison pool, and instead had redefined the PCP. Critically, the Claimant had specified that the PCP was not that she was being asked to work the Thursday late shift, but that she was being required to guarantee her availability to do so. The two male managers included in the comparison pool were not subject to this availability requirement, and therefore were in a materially different situation to the Claimant. As a result, they should not have been included in the pool for comparison

This case highlights the difficulties sometimes encountered by ETs in properly defining the PCP relied upon by a Claimant in an indirect discrimination claim. The scoping of the PCP directly affects the identification of the pool of individuals impacted by it and, by extension, the question of whether it is discriminatory or not.

2. White v HC-One Oval Ltd [2022] EAT 56 (7 April 2022) - LINK

In this case, the Employment Appeal Tribunal (“EAT”) held that the Employment Tribunal (“ET”) had been wrong to strike out a claim of unfair dismissal because the Claimant employee had volunteered for redundancy.

The Claimant worked for the Respondent as a part-time receptionist in a care home. In late 2018 the Respondent announced its intention to reduce the number of employees carrying out reception and administrative duties. The Claimant was provisionally selected for redundancy. During this process, the Claimant requested and was granted voluntary redundancy.

Following the termination of the employment the Claimant submitted a claim for unfair dismissal on the basis that the redundancy process had not been genuine. The Claimant alleged various procedural failures on the part of the Respondent, and that the process had been manufactured. The Respondent had hired a full-time receptionist just before the process had begun and had dismissed two part-time receptionists during the redundancy process. The Claimant therefore alleged that they had been targeted for dismissal. The Respondent disputed this version of the facts.

The ET struck out the claim, finding that the Claimant’s claim had no reasonable prospect of success because the Claimant had volunteered for redundancy. The ET held that because the Claimant had volunteered for redundancy, the Respondent would be able to establish the reason for, and reasonableness of, the decision to dismiss. The ET did not consider the facts in dispute at the hearing.

On appeal, the EAT held that the ET had erred in law by not considering the facts and deeming them irrelevant. If the Claimant’s statement of the facts had been considered and found to have merit, then it would be difficult to see why the Claimant’s claim of unfair dismissal would be seen to have no reasonable prospect of success. Even if the ET were to find that the actual reason for the dismissal was redundancy, it would still need to engage with the Claimant’s claims around the fairness of the process which led to the dismissal.

This case is a useful reminder to employers that (i) a voluntary redundancy is still a dismissal; and as a consequence (ii) there must be a genuine redundancy situation, and a fair procedure must be followed, if an unfair dismissal claim is to be avoided.

3. Clark v Middleton and Another [2022] EAT 31 - LINK

In this case, relating to a claim for a failure to inform and consult under the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE"), the Employment Appeal Tribunal ("EAT") held that no award could be made against the transferee for failing to notify the transferor about measures it proposed to take in connection with the transfer, under regulation 13(4) of TUPE, where an appropriately worded settlement had previously been reached between the Claimant and the transferee.

The Claimant worked for a business run by the transferor. On 30 September 2019, the business was transferred to the transferee and the Claimant’s employment transferred with it pursuant to TUPE. The Claimant subsequently brought an Employment Tribunal (“ET”) claim against both the transferor and transferee, seeking 13 weeks' gross pay for failure to inform and consult under regulation 13 of TUPE, amongst other claims.

The Claimant and the transferee later reached a settlement through ACAS, so the claims against the transferee were dismissed. She stated in correspondence with the ET that there was no objection to "all claims" against the transferee under the relevant case number being dismissed but that she was still pursuing her claims against the transferor. At the hearing, the transferor denied that she had failed to comply with her duties to inform and consult, and argued that any failure to inform and consult was a result of the transferor’s failure to properly notify her about any measures envisaged in connection with the transfer (as it was required to do under regulation 13(4) of TUPE). As a result, she claimed that any liability for an award fell to the transferee, pursuant to regulations 15(5) and 15(8)(b) of TUPE.

The EAT confirmed that the Claimant could not have brought a complaint directly against the transferee for breaching regulation 13. Only the transferor, as her employer at the relevant time, owed a duty to the Claimant under regulation 13. Further, the transferee was not liable to pay compensation to the Claimant for failure to inform and consult. It clarified that under TUPE, such a remedy is contingent on a claim being brought against the transferor and the transferor then relying on the transferee's non-compliance as a defence. Only once the defence has been raised will the transferee be joined as a party to the proceedings. However the EAT also considered that it is possible for a complainant to compromise or relinquish the right to receive an award from the transferee, notwithstanding that the claim is brought against the transferor. It held that the Claimant’s email to the ET withdrawing her claim against the transferor covered all claims, and did not indicate that she was reserving the right to seek a remedy from the transferee arising out of her continuing claim against the transferor. The EAT held that it would be a normal precaution when withdrawing some but not all complaints against a Respondent to identify and confirm any complaints that are being maintained. Therefore, the withdrawal of the Claimant’s claims against the transferee precluded her from seeking an award for failure to inform and consult.

This case provides helpful confirmation that a settlement of claims against a transferee can be wide enough to encompass an award for failure to inform and consult, even where the claim itself can only be brought against the transferor in the first instance, and the transferee’s potential liability is contingent on the transferor relying on the transferee’s non-compliance as a defence. It is also is a useful reminder that the language used when seeking to withdraw ET claims is crucial; where there is an intention to keep certain claims or remedies alive, this must be clearly stated.

4. Nursing and Midwifery Council v Somerville. Court of Appeal, 2022 EWCA Civ 229 - LINK

In this case, the Court of Appeal ("CA") confirmed that an individual who was appointed as a panel member and chair of a professional regulatory body was a worker within the meaning of regulation 2(1) of the Working Time Regulations 1998 (the “Regulations"), even though there was no “irreducible minimum of obligation”.

The Claimant was a barrister and appointed as a panel member and chair of a Fitness to Practice Committee of the Respondent under a written contract. He agreed to sit on panel hearings on particular days, although was free to refuse to accept any particular hearing date, or to cancel a hearing he had previously agreed to. His appointment letter stated: ”You are not an employee or an office holder of the [Respondent]. Your appointment as a practice committee member makes you eligible to provide services, as an independent contractor, to the [Respondent], as a panellist or a panel chair”.

The Claimant brought a claim in the Employment Tribunal (“ET”) for unpaid holiday pay, on the ground that he was a worker as defined in the Regulations. The ET held that although there was not sufficient mutually of obligation or control for the Claimant to be deemed an employee, there was an overarching contract between the Claimant and the Respondent for personal service, as well as individual contracts when the specific hearings were assigned, and this was sufficient to make him a worker.

The Respondent appealed, arguing that there must be “an irreducible minimum of obligation”, i.e. an obligation on the Claimant to perform a minimum amount of work, in order for the contract to be a worker’s contract. The EAT dismissed the appeal. It held that while an irreducible minimum of obligation was not essential for worker status, it could be relevant to instances where it was disputed that there was a contract at all, which was not the case here.

The CA upheld the ET and EAT decisions, holding that the ET had been entitled to find the Claimant was a worker: he entered into, and worked under, a series of individual contracts under which he had undertaken to perform services personally. The Respondent was not a client or customer of a business or professional undertaking carried on by the Claimant. The CA also held that its decision was consistent with that of the Supreme Court in Uber – having an individual who is entirely free to choose whether or not to work and is not under any contractual obligation when not working, does not preclude a finding that the individual is a worker.

The steady stream of “worker” status cases continues. This case confirms thatall that is required for worker status under the Regulations is a contract for the personal provision of work or services, where the end beneficiary of the work is not a client or customer of a profession or business carried on by that individual, as per the statutory definition. Mutuality of obligation, in the sense of an obligation to accept and carry out a minimum amount of work, is not a pre-requisite.