Frontline UK Employment Law Update Edition 33 2024 - Case Updates

1. MacLennan v British Psychological Society [2024] EAT 166 
   
2. Haycocks v ADP RPO UK Ltd [2024] EWCA Civ 1291 
   
3. Gallagher -v- McKinnon’s Auto and Tyres Ltd [2024] EAT 174 
   
4. Bandi and Others v Bolt Operations OÜ and Bolt Services UK Ltd ET 2206953/2021 & Ors
   
5. Carozzi v University of Hertfordshire [2024] EAT 169
   
6. Alexis v Westminster Drug Project [2024] EAT 188 

MacLennan v British Psychological Society [2024] EAT 166 (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) considered the question of whether whistleblowing protections extend to pre-employment disclosures and roles not traditionally considered as 'employment'. This case has led to significant insights into the application of whistleblowing protections.

The Claimant alleged that he had been expelled from his position as President-Elect and trustee of the Respondent due to whistleblowing disclosures he made both before and during his time in that role. The Employment Tribunal (“ET”) concluded that the Claimant was not a worker, due to the absence of a contract and the voluntary nature of his role. Consequently, he did not qualify for whistleblowing protection. 

The EAT agreed that there was no intention to enter into a contractual relationship. However, when considering whether the Claimant should be treated as a worker (despite the absence of a contract), the EAT decided that the ET had too narrow a focus on the lack of remuneration and voluntary nature of the role and failed to consider the role's responsibilities, the potential for encountering wrongdoing, the importance of public interest disclosures, and the risk of retaliation. The EAT therefore returned the case to the ET to reconsider this point. Separately, the EAT confirmed that protection from detriment for disclosures extends to disclosures made before an engagement or employment begins, not only for those made during the course of the role. 

The EAT's decision is a significant development in the area of whistleblowing protections. Firstly, it confirmed that disclosures made before the start of an engagement or employment can be considered protected whistleblowing disclosures (but it did specify that the protection does not extend to unsuccessful job applicants).  Secondly, it has possibly broadened the view on what roles can be considered 'analogous' to workers or employees, potentially extending the protections to roles like that of a charity trustee, President-Elect, or President. This case demonstrates an expanded interpretation of whistleblowing protections and highlights the need for a more comprehensive view of whistleblowing protections, taking into account the role's responsibilities and potential risks, rather than just its contractual status and remuneration. 

Haycocks v ADP RPO UK Ltd [2024] EWCA Civ 1291 (LINK)

In this case, the Court of Appeal (“CA”) has clarified the scope of redundancy consultation and confirmed that employers do not need to carry out "general workforce consultation" in small-scale redundancy dismissals. 

The Claimant was an employee of the Respondent, a recruitment process outsourcing business. Due to a downturn in work during the pandemic, the Respondent decided to make redundancies in the Claimant’s team. The 16 affected employees were each assessed using a "redundancy selection criteria matrix” that comprised 17 criteria. The scoring was completed before the Respondent had decided how many employees would be made redundant and before any consultation took place. The Claimant, who had the lowest score, was made redundant following a consultation process. During that process, three consultation meetings were held with the Claimant, but he was unaware of his selection scores, and how they compared to others in the pool, until his appeal. The Claimant argued that he was not given a chance to challenge the scores or express his views during the consultation process, and he subsequently claimed unfair dismissal.

The Employment Tribunal rejected the claim. It accepted that the Claimant did not know anything about his scores until after his dismissal but concluded that the Respondent had carried out a conscientious investigation into his concerns about scoring during the appeal. It therefore decided that the procedure was fair. On appeal, however, the Employment Appeal Tribunal (“EAT”) upheld the Claimant’s appeal and ruled that a lack of general workforce consultation at the “formative” stage of the redundancy process (and with no good reason why this had not been carried out for the proposed redundancy) made the dismissal unfair. It stated that workforce level consultation was a requirement of good industrial relations practice in all redundancy situations (together with individual consultation) including in non-unionised workplaces and where statutory collective consultation was not triggered. The Respondent appealed to the CA.

The CA overturned the EAT's decision. It ruled that the EAT had been wrong and there was no requirement for general workforce consultation in smaller-scale (i.e. fewer than 20) redundancies in non-unionised workplaces, which it stated was unworkable for a number of reasons. The CA stated that each redundancy situation should be examined on a case-by-case basis and there was no justification for creating a presumption that a dismissal without such consultation will be unfair, citing fundamental differences between situations where collective consultation was required, for example by statute, and where it was not. 

The CA further clarified that "formative" consultation should occur when it could potentially alter the outcome. Although it was (in this case) deemed to be bad practice to score employees before starting the consultation, this did not necessarily make the process unfair since the Claimant had a real opportunity to challenge the criteria and scoring during the appeal process. As a result, the court ruled that the Respondent had (when viewed overall) conducted a fair redundancy process and the dismissal was therefore fair. 

Whilst this case clarifies that employers do not need to carry out general workforce consultation for individual redundancies, it also acts as a reminder that consultation should still take place at a formative stage of the process, i.e. at a point when an employee can still influence the decision. It therefore emphasises the importance of considering each case individually. Moreover, (as the CA commented), good practice involves allowing an employee to comment on selection criteria before any scoring is carried out and to give them their scores during the consultation process. However, failing to do that will not necessarily make the redundancy process unfair if the employer is open-minded and prepared to reconsider the criteria and selection during the process. 

Gallagher -v- McKinnon’s Auto and Tyres Ltd [2024] EAT 174 (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) assessed whether the Respondent's behaviour during pre-termination negotiations with the Claimant amounted to improper behaviour, and if the content of the pre-termination negotiation was therefore admissible in employment tribunal proceedings. 

Pre-termination negotiations (also known as protected conversations) are an integral part of confidential settlement negotiations between an employer and an employee. They typically cannot be referred to in an ordinary unfair dismissal claim unless the tribunal deems the conversation or actions 'improper'. Although there is no clear-cut legal definition of 'improper’, one example provided in the ACAS code of practice on settlement agreements is "putting undue pressure on a party". 

The Claimant claimed unfair dismissal following redundancy. During the proceedings, the Claimant attempted to cite pre-termination negotiations and correspondence in which the Respondent had offered him an enhanced redundancy package in return for agreeing to certain terms for departure. In a preliminary hearing, the Employment Tribunal (“ET”) decided these discussions were a 'protected conversation' and therefore inadmissible. As the Respondent had not acted improperly, the Claimant was not permitted to refer to these discussions in the unfair dismissal proceedings.

The Claimant appealed the ET’s decision. He argued that the Respondent had applied undue pressure during the protected conversation by (i) stating that a redundancy process would begin if he declined the offer; (ii) inviting him to a return-to-work meeting under "false pretences," where he was unexpectedly offered settlement terms; and (iii) only allowing him 48-hours to accept the verbal offer. He therefore argued that the Respondent had acted improperly and the content of the conversation should be admissible as evidence of his unfair dismissal. 

The EAT dismissed the Claimant’s appeal. It decided that the ET was right to conclude that the Respondent had not acted improperly. In particular: 

1. informing the Claimant about the commencement of a redundancy process if he did not accept the offer did not equate to telling him he would be dismissed;
   
2. while it may have been unfair to discuss settlement terms unexpectedly during the return-to-work meeting, it did not mean the Respondent had lied or exerted undue pressure during the meeting; and 
   
3. the 48-hour deadline for the settlement offer did not constitute undue pressure. The 48-hour period only related to whether the Claimant would accept a verbal offer and if the verbal offer had been accepted, this would have been followed by a written offer with a settlement agreement and additional time would have been given to consider it.

The case has now returned to the ET to proceed with the unfair dismissal claim, disregarding evidence from the pre-termination negotiation.

Whilst this case demonstrates the support of the tribunals for such protected conversations and will therefore be reassuring for employers, it also serves as an important reminder that, although protected conversations can facilitate agreed terminations, they should be approached with utmost caution. Any missteps can potentially undermine the legal protection they afford. The ET’s decision that a 48-hour window to consider a settlement proposal is reasonable will be useful for employers. However, employers must still be vigilant to ensure that such conversations are conducted without exerting undue pressure, thereby maintaining the integrity of the process and ensuring that they cannot be used as evidence in any potential subsequent unfair dismissal claims. 

Bandi and Others v Bolt Operations OÜ and Bolt Services UK Ltd ET 2206953/2021 & Ors (LINK)

In this case, the Employment Tribunal (“ET”) has held that drivers for Bolt, the app-based ride-hailing service, are considered workers rather than self-employed contractors. This decision follows the previous Supreme Court Uber decision, and demonstrates that, in the end, the actual circumstances can be decisive in determining employment status.

The claim involved roughly 10,000 private hire drivers operating on the Bolt platform across the UK. Bolt's operations model shifted in August 2022 from an "Agency Model" to a "Principal Model". Under the former, Bolt Services UK Ltd (“BSUL”) acted as an agent, accepting passenger bookings and identifying drivers willing to complete the journey. The latter model sees BSUL accepting bookings and payment, with drivers being paid a journey fee.  

Bolt classified the drivers as self-employed contractors. The drivers contended that they were workers, not self-employed independent contractors, and alleged failure to pay the minimum wage and provide paid holiday. Bolt argued that under the Agency Model, it acted as an agent for the drivers who were independent contractors. With the switch to the Principal Model, Bolt argued that the element of personal service, essential for worker status, was negated due to its "Bolt Link" scheme which allowed any registered driver to have other drivers operate under their Bolt account.

The ET dismissed Bolt's arguments, ruling that drivers were employed as "workers" in Bolt's transportation business under both models. The ET noted that the Principal Model emphasised the imbalance in the relationship between Bolt and the drivers, making the argument that Bolt was the client or customer of the drivers unrealistic.

The ET based its decision on the following: 

• The drivers undertook work personally. They were not allowed to transfer the app or to pass on any task to any substitute. In addition, “Bolt Link” did not entitle the drivers to perform their obligations through a substitute.
• Furthermore, between 2019 and 2021, Bolt maintained the practice of requiring drivers to accept a specified proportion of the trips offered to them, on pain of being forcibly “blocked” from using the app for a specified time if they failed to do so and did not communicate to its drivers that it had discontinued this practice. This demonstrated the significant level of control Bolt exercised over the drivers.
• Lastly, whilst the drivers were free to reject or cancel trips, this did not affect their obligation of personal service in respect of trips that they did accept and undertake.

The ET concluded that the drivers could not be characterised as a business, nor could Bolt be characterised as the driver’s customer. Instead, it said that “the business was Bolt’s and the transaction between it and the driver was its purchase of the driver’s labour, strictly on its ‘take it or leave it’ terms.” 

As a result of the ET’s findings, Bolt drivers are now classed as workers, rather than self-employed contractors.

This decision is not binding on other employment tribunals, however it emphasises the continued scrutiny of worker status within the gig economy, highlighting the need for companies to be careful in the way they operate and classify their workforce, in order to avoid significant potential liabilities.

Carozzi v University of Hertfordshire [2024] EAT 169 (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) decided that comments made about someone's accent could be discriminatory, irrespective of the absence of racial motivations.

The Claimant, a former Marketing, Engagement and Partnerships Manager at the Respondent, resigned before completing her probation period due to alleged instances of harassment, discrimination, and victimisation. Her claims against the Respondent and her line manager included harassment based on her Brazilian nationality and Jewish ethnic origin, primarily instigated by comments on her accent. She alleged that during a conversation about performance concerns she was told that she had “a very strong accent” and “although your English language is very good it can be difficult for you to be understood”. The victimisation claim was linked to the HR manager's refusal to share meeting notes with her, purportedly to prevent their use in a discrimination claim.

The Employment Tribunal (“ET”) dismissed the Claimant’s allegations on the basis that the accent-related comments were about her intelligibility or comprehensibility and not her nationality. The ET also found that any employee intending to file a tribunal claim would have been denied access to meeting notes, not just those alleging discrimination.

On appeal, the EAT overturned the ET's decision. It decided that the ET had been wrong to find that a "mental element" is required in a harassment claim, and that a perpetrator’s understanding or recognising the offensiveness of their conduct is not a prerequisite for harassment to occur. It also noted that since an accent is intrinsically linked to a person’s ethnicity or nationality, it follows that it can be related to their protected characteristic of race. 

Regarding the victimisation claim, the EAT noted that the ET asked the wrong question. The correct question was whether the refusal to provide the notes was materially influenced by the possibility of the Claimant making a complaint about discrimination. The EAT also held that the test for detrimental treatment was misapplied since the ET failed to consider whether the Claimant might reasonably have considered herself to be disadvantaged as a result of the manager withholding the meeting notes.

The case has been directed to a fresh tribunal to hear the claims of harassment and victimisation.

This case does not mean that all comments about an individual’s accent will amount to harassment. However, it highlights the need for businesses to provide regular employee training and establish clear policies that define acceptable behaviour in the workplace, since motivation is not required to establish unlawful harassment. To prevent instances of harassment and discrimination, policies should include examples of language and behaviour that could be deemed offensive or inappropriate.

Alexis v Westminster Drug Project [2024] EAT 188 (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) confirmed that an employee’s unreasonable behaviour throughout a grievance and grievance appeal process was sufficient to cause an irretrievable breakdown in trust and confidence, such as to justify dismissal for “Some Other Substantial Reason” (“SOSR”).

The Claimant and two colleagues were impacted by a restructuring exercise being undertaken by the Respondent, whereby their three posts were to be replaced by two new posts. The Claimant applied for one of the new roles in a competitive interview process. After being unsuccessful at interview, she raised a grievance alleging that insufficient accommodation had been made for her dyslexia. 

The grievance outcome was favourable, recommending that the process be rerun with further adjustments, but stopped short of agreeing with the Claimant’s core demand to be provided with the full questions 24 hours in advance. She rejected the outcome of the grievance and appealed. This again gave her a favourable outcome and suggested further adjustments beyond the initial grievance outcome. However, as before, she rejected the outcome of the appeal and wrote numerous emails to the decision maker and chairman of the Respondent. On complaining about the appeal outcome, she was again offered further concessions which stopped short of her demands, which she described as unacceptable and discriminatory.

As a result of her repeated complaints and refusal to accept the outcome of the appeal, as well as her confrontational behaviour throughout the process, the Respondent engaged a HR consultant to meet with her and consider whether her continued employment was tenable. The consultant, following discussions with her, concluded that her unwillingness to accept the adjustments offered or to change her behaviour had led to a complete breakdown of trust and confidence, justifying a dismissal for SOSR. 

The Employment Tribunal rejected her claim of unfair dismissal, finding that her behaviour was such that the employment relationship had become unsustainable. 

The Claimant appealed and stated that insufficient consideration had been given to her length of service, or the possibility of alternatives to dismissal. The EAT noted that length of service was only to be considered if it was relevant to the reason for dismissal, which was not the case for the Claimant’s dismissal. In addition, it noted that there was evidence of investigation of alternatives to dismissal. However, when trust and confidence had broken down to this extent the Respondent had reasonably concluded that there was no alternative.

This decision will be helpful for employers dealing with employees who refuse to accept the outcome of a grievance, noting that this can be considered to damage, if not create a complete breakdown in, the trust and confidence in the employment relationship. However, establishing an irreparable breakdown in the employment relationship is a high bar and this case highlights the importance of documenting decisions and acting reasonably when relying on SOSR as grounds for dismissal.