Frontline UK Employment Law Update Edition 32 2024 - Case Updates

1. British Bung Manufacturing Ltd 2) Mr J King v Mr A Finn: [2023] EAT 165 
   
2. Nelson v Renfrewshire Council: [2024] EAT 132
   
3. Carnival Plc v Laura Hunter [2024] EAT 167

British Bung Manufacturing Ltd 2) Mr J King v Mr A Finn: [2023] EAT 165 (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) concluded that calling an employee “bald” amounted to sex-related workplace harassment. This type of harassment occurs when an individual is subjected to “unwanted conduct” related (i.e. linked) to their sex which violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. 

The Claimant worked in a predominantly male manufacturing environment where inappropriate language was common. A workplace altercation between the Claimant and a colleague led to the Claimant being called a derogatory term referencing his baldness and threatened with physical violence. The incident led to the Claimant's dismissal, and he subsequently brought claims of unfair dismissal and sex-related harassment in relation to the comment about his baldness.

The Employment Tribunal (“ET”) upheld the Claimant's harassment claim, stating that the colleague had crossed a line by making personal remarks about the Claimant's appearance and decided that the comments about his baldness amounted to sex-related harassment. In the ET’s view, baldness is predominantly a male issue since more men than women suffer from hair loss and there was therefore a sufficient connection between the word “bald” and the protected characteristic of sex. As such the comment was therefore related to the Claimant's sex and created a hostile or offensive environment. 

The Respondent appealed this decision. It argued that for harassment to be related to sex, it must exclusively apply to one sex. Since both men and women can experience baldness, the Respondent argued that the ET's ruling on sex-related harassment was untenable.

The EAT dismissed the appeal. It decided that there was no legal basis for the argument that unwanted conduct must relate to a matter exclusive to one gender for it to be considered related to sex. In the EAT’s view, the comment about baldness did amount to sex-related harassment due to the higher prevalence of baldness in men, meaning such comments were more likely to be directed towards men.  

This case confirms that sex-related harassment can involve matters or features that are not exclusively linked to or associated with one gender. It is sufficient if the matter or feature is predominantly associated with one gender. It also highlights that it is important for employers to recognise and address all forms of inappropriate comments or behaviour in the workplace and be alert to remarks about appearances which may create a hostile and intimidating work environment. 

Nelson v Renfrewshire Council: [2024] EAT 132 (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) considered whether an employee’s failure to follow each stage of an internal grievance process impacted their right to bring a constructive dismissal claim.  The EAT confirmed that the only conduct to be considered when determining if there has been a fundamental breach of contract is the employer’s conduct and not hypothetical future events which could have occurred. The Claimant’s failure to exhaust the Respondent’s internal grievance process was not a relevant consideration. 

The Claimant was employed by the Respondent as a teacher. She had raised a grievance relating to an incident in October 2021, where she alleged that the head teacher had behaved aggressively towards her. Her grievance was investigated but dismissed at both the first and second stages of the Respondent’s grievance process. However, the Claimant did not exercise her right to appeal to stage 3 of the grievance process as “she no longer had any faith in the system”. She resigned with immediate effect in November 2022 and brought a claim for unfair constructive dismissal on the basis that the Respondent had engaged in conduct that was calculated or likely to destroy the relationship of trust and confidence and was thereby in fundamental breach of the employment contract. 

The Employment Tribunal (“ET”) acknowledged that the head teacher’s conduct had been aggressive, and that the grievance process handled by the Respondent was flawed, even biased against the Claimant. Although the ET agreed on the facts with the Claimant, it dismissed the claim. The ET concluded that the Claimant had not exhausted all stages of the grievance process, and a final resolution at stage 3 could have potentially repaired the damage to mutual trust and confidence. 

The Claimant appealed to the EAT. The EAT partially upheld the appeal and returned the case to the ET for reconsideration. The EAT ruled that the ET had erred in its application of the law in three ways:

1. The ET’s focus on the uncompleted grievance process was irrelevant; the grievance process was not the relevant factor, as the right to resign should be based on conditions at the time of resignation and whether there had been a fundamental breach of the employment contract by the employer.
   
2. There had been a substantial misapplication of legal principles leading to an error of law, when the ET considered whether the conduct truly harmed the relationship of trust and confidence.  The ET had incorrectly focussed on actual effects and not on likely effects of the employer’s conduct on the relationship of trust and confidence.
   
3. The ET failed to adequately consider the cumulative effect of the Respondent’s handling of the grievance process on mutual trust.

This case highlights the importance of assessing any conduct of the employer and the likely unilateral and cumulative effect of that conduct on the relationship of trust and confidence at the point at which the resignation notice was issued.  It is also a reminder that employees may bring a successful constructive unfair dismissal claim even where any internal grievance procedures have not been exhausted, although a failure to exhaust an appeals process may still impact on compensation if it amounts to an unreasonable failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures. 

Carnival Plc v Laura Hunter [2024] EAT 167 (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) has confirmed the limitations on what can constitute a “suitable alternative vacancy” in a redundancy situation, in the context of the obligation to offer such vacancies to those on certain forms of statutory family leave.

The Claimant was one of 21 team leaders working across the Respondent’s business. Whilst the Claimant was on maternity leave in 2020, the Respondent undertook a redundancy exercise to reduce the number of team leader roles to 16 due to the immediate impact of COVID on the Respondent’s industry. The redundancy selection exercise was conducted using a scoring system, with the five lowest scorers being made redundant. The Claimant was made redundant, and she subsequently claimed unfair dismissal and maternity discrimination. 

In the Employment Tribunal (“ET”), the Claimant’s claims were upheld, with the ET deciding that the remaining 16 team leader roles constituted suitable alternative vacancies. The ET held that the Claimant should therefore have been offered one of those roles, since she was on maternity leave at the time (and therefore benefitted from the legal right to be offered a suitable alternative role, where one was available). As a result, the ET made a finding of automatic unfair dismissal.  In the alternative, the ET found that the dismissal was unfair due to unfairness in the Respondent’s scoring process.

On appeal, the EAT disagreed with the ET, stating that the remaining 16 team leader roles were not “vacancies”. The EAT distinguished this from a situation where two roles were merged, with the merged role being a new and different role and therefore a vacancy. In this case, there was no such merger. It was a “conventional redundancy” with a simple reduction in headcount. At no point in the process was there a vacant role. The EAT also noted that the ET had substituted the Respondent’s findings in the scoring process with its own without proper justification for that substitution. 

This case clarifies that where employers are simply reducing the number of existing roles during a redundancy exercise, there is no requirement to offer one of the remaining roles as a suitable alternative vacancy, as these are not vacancies. The obligation will only arise when an employer is amalgamating two roles, which would create a “vacancy” that should be offered if it is a suitable alternative, or where there are other genuine vacancies in the employer’s business which are suitable alternatives to the redundant employee’s role. This is now particularly important, given the recent widening of this redundancy protection to pregnant employees and those who are on or recently returned from maternity, adoption or shared parental leave.