Latest Employment Law case updates - Edition 1 2020

1. Supreme court decides that real reason for a dismissal decision must be taken into account even if unknown to the dismissing manager
2. Samira Ahmed wins equal pay claim against BBC

1. Supreme court decides that real reason for a dismissal decision must be taken into account even if unknown to the dismissing manager.

Royal Mail Group v Jhuti [2019] UKSC 55

The highly contentious case of Royal Mail v Jhuti has been brought to a close with the Supreme Court's recent decision. The Court decided that in whistleblowing cases, when looking at the true reason for the employer's decision to dismiss an employee, a hidden reason, knowledge or motivation that influenced or manipulated the decision should be taken into account. 

Ms Jhuti was employed by Royal Mail.  She reported an alleged breach of Royal Mail rules by one of her colleagues to the organisation. The manager to whom she made the report then began to question her performance at the company and provided an "ever changing unattainable list of requirements" for improvement. Ms Jhuti went on sick leave, and a second manager was appointed to consider whether Ms Jhuti's employment should be terminated due to her alleged performance issues. This second manager was unaware of Ms Jhuti's original whistleblowing report and decided that there were grounds to dismiss her for poor performance. 

Ms Jhuti complained to the Employment Tribunal that her dismissal was automatically unfair on the basis that the sole or principal reason for the dismissal was the making of protected disclosures.

The Employment Tribunal, the EAT and the Court of Appeal came to different conclusions on the case, with the Court of Appeal stating that the dismissal was fair as it is the the state of mind of the person nominated by the employer to carry out the dismissal that is key The Supreme Court disagreed with the decision, finding that the manager to whom Ms Jhuti had made the protected disclosure was in the hierarchy of responsibility above the dismissing manager and had manipulated the process to lead to Ms Jhuti's dismissal. The Court stressed that in normal circumstances, there is no need to look further than the reasons for dismissal given by the primary decision-maker, but that a court does have a duty to look for the 'real' reason for dismissal where it is hidden behind an invented reason.
Although the facts of the case are quite unusual and specific, it is worth HR professionals and in-house counsel advising on dismissals keeping it in mind, and being careful to examine the reasons behind a proposed dismissal when advising the business, particularly where the dismissal is being proposed against a background of employee grievances or other complaints.

2. Samira Ahmed wins equal pay claim against BBC

Samira Ahmed v BBC ET 2206858/2018 

An Employment Tribunal has decided that Samira Ahmed's work on Newswatch was like work, or work of equal value, to Jeremy Vine's work on Points of View for equal pay purposes. The BBC was also unable to show that the difference in pay was because of a material factor which did not involve sex discrimination.

Ms Ahmed made a claim for equal pay after she discovered that she was paid £440 per episode while Mr Vine was paid £3,000. The Tribunal rejected the BBC's arguments that the programmes, and the presenters' roles, were not comparable. Each presenter led a 15-minute pre-recorded programme with a magazine format, which discussed viewers' opinions. The producers wrote the scripts and any differences in content or tone were minor differences only. They had no impact on the presenters' work, or the skills or experience required to present the programmes.  Having a "glint in the eye", or acting in accordance with a script direction (both put forward by the BBC as differentiators), did not require any particular skill or experience.

The BBC relied on six factors to defend the difference in pay, including the profile of the programmes and presenters as well as alleged differences in market rates and pressures. Acknowledging that there were deficiencies in much of the BBC's evidence, the Tribunal found that none of these factors applied between 1 October 2012 and 30 September 2018, the period to which the claim related.  In particular, Mr Vine's pay was negotiated after he had signed a deal to work exclusively for the BBC.  The high rate of pay for Points of View was not, therefore, needed to retain him because he did not have the option to work elsewhere. The Tribunal also noted that "market rate" must mean the same in both cases; it applied to either the role or the person. The BBC had paid Mr Vine what it felt necessary to get him to present Points of View, whereas the focus in relation to Ms Ahmed had been the market rate for the role rather than for her personally.

From 1 October 2018 onwards, the Tribunal accepted that a non-discriminatory factor, namely Ms Ahmed's move to employment on a permanent staff contract, explained any difference in pay.

While the decision does not change the application of equal pay law, it is a timely reminder of the importance and benefits of having transparent and non-discriminatory processes for determining pay.  It is not known if the BBC will appeal the decision. Ms Ahmed could now be awarded up to £700,000 in compensation.