Employment Law Bulletin - February 2023

Welcome

Res judicata is a Latin phrase which means ‘a matter judged’. It is a legal principle used to prevent someone from pursuing a claim that has already been dealt with by the courts. In a recent case, an employee asked the EAT to overturn a finding of fair dismissal after an employer reopened internal disciplinary proceedings and dismissed her for matters which had previously attracted a final written warning. Her appeal was based on the principle that an employer should not be able to judge the same issue twice.

In Lyfar-Cisse v Western Sussex University Hospitals NHS Trust, the employee was a clinical biochemist and a director of the Trust. In that role, she had special responsibility for improving race equality. She was disciplined and given a final written warning for behaviour including racial harassment of a white colleague and bullying of another colleague by interfering with her discrimination complaint. Around the same time, the Care Quality Commission (CQC) completed an inspection which concluded that bullying was rife within the Trust. The Trust was put into special measures and its management taken over by another Trust. One of the employees who had complained then wrote to an HR director in the new Trust expressing shock that the employee had returned to the role of race equality lead despite the disciplinary sanction. The HR director accessed the disciplinary paperwork for the employee. She told the CEO about her concerns. The CEO concluded that there were issues about the employee’s fitness under the relevant statutory codes to provide leadership on equality issues. Another disciplinary hearing took place where the employee continued to deny she had done anything wrong. She was dismissed on notice because her conduct fatally undermined her ability to lead on racial equality.

The tribunal said the dismissal was fair. The principal reason for the dismissal was the Trust’s view that it was not appropriate for someone who had been found responsible for discrimination to lead the Trust on race equality. A decision to reopen internal proceedings was unusual but so were the intervening facts, including the findings of the CQC report, the employee’s refusal to accept any responsibility and the CEO’s decision that the employee could not continue to lead on race equality in light of her conduct. The reason for dismissal was conduct or SOSR. The employer’s procedure had been fair and the dismissal was within the range of reasonable responses. The employee appealed, saying the employer should not have reopened disciplinary proceedings, but the EAT agreed that the dismissal was fair. They said the case of Christou v London Borough of Haringey had found that res judicata did not apply in internal disciplinary proceedings. The earlier disciplinary process was just part of the overall picture about whether the dismissal was fair. The tribunal had given clear reasons about why dismissal was fair in this case and there had been no legal errors. The EAT also agreed with the tribunal that the label on the dismissal – conduct or SOSR – did not matter. The important question was whether the dismissal was within the range of reasonable responses.

It will be unusual for employers to reopen disciplinary cases that have come to an end. In this case, the CQC investigation and conclusions, and new management of the Trust, were the intervening factors which made reopening disciplinary proceedings fair in this case. Without any kind of good reason, reopening a disciplinary matter may cause difficulties if it is used as a vehicle to arrive at a different decision from the original one. It is also worth noting that the employee in this case had been found to have racially harassed a colleague but allowed to remain the lead on race equality in the Trust. This conflict should have been ironed out as part of the initial disciplinary process.

Tim Lang

Marriage discrimination

Rules about marriage discrimination were introduced into law in 1975 because some employers dismissed female employees once they got married. This historical protection has been used in recent times by women who are dismissed from their jobs not because they are married per se, but because they are married to particular men, often senior men and often after those personal relationships have broken down. The recent case of Ellis v Bacon has cleared up some prior inconsistency in appeal decisions in cases of this kind.

The employee was a shareholder and director in a business, married to the managing director and senior shareholder. Their relationship broke down and the employee asked to separate from her husband. She was subsequently dismissed by the new managing director for spurious reasons relating to allegations of IT misuse. She brought claims for unfair dismissal and marriage discrimination – less favourable treatment because she was married to Mr Bacon. The tribunal agreed. The dismissing officer had sided with Mr Bacon and cooperated with the employee’s poor treatment including her dismissal. This was direct marriage discrimination, less favourable treatment because of the employee’s marital status in being married to Mr Bacon. The employer appealed.

The EAT agreed reluctantly that the employer was right. The correct comparator here was someone who was in the same situation as the employee but not married. Someone who had been in a close relationship with Mr Bacon, but not married, would have been treated the same as the employee. The test was whether the employee had been treated badly because she was married, not because she was married to Mr Bacon. Marriage itself was not the reason she was treated badly here.
This case shows that the ambit of marriage discrimination is intentionally narrow, perhaps even a historical relic that may no longer be relevant in 2023. The EAT was clearly reluctant to come to that decision because the employee had been treated so badly. However, they were unable to stretch the law beyond its intended parameters. This situation – an acrimonious relationship breakdown which bleeds into workplace dysfunction - arises mainly with small businesses where romantic partners are also business partners. Although such treatment may not be marriage discrimination, employers should beware. The business in question was in administration by the time of the appeal hearing and was subsequently wound up. Businesses that operate in this kind of pernicious way may not prosper.

Privacy – WhatsApp messages in tribunal

Most employers would theoretically love to come across a dismissed employee’s private WhatsApp messages which undermine contrary evidence in tribunal. The dangers of this activity has been highlighted recently in the High Court case of FKJ v RVT. The employee was a solicitor who was dismissed after a short period of employment for falsifying a timesheet. She brought claims for discrimination, saying she had been sexually harassed. The employer relied on the employee’s WhatsApp messages that they claimed to have found on her work laptop after she left and which contradicted the employee’s own evidence. They said other tranches of messages had been sent to them by post from an anonymous source shortly after her dismissal. In all, the employer had 18,000 messages which took up 900 pages of the tribunal bundle. They were mostly to the employee’s best friend and partner, entire WhatsApp conversations for the year of her employment and dismissal. They contained messages and images of the most intimate kind. The employee lost her tribunal claims. The messages played a large part in the tribunal’s findings where there was a conflict in evidence.
The employee brought a High Court claim against the employer for misuse of private information. She claimed the employer had hacked into her account to get her messages by taking her smartphone and creating a web-based access to her messages. The employer counterclaimed for malicious prosecution in relation to the tribunal claim, abuse of process and harassment. They asked the High Court to grant summary judgment – meaning they would win the claim and counterclaim with no further proceedings. In the alternative, they asked for the employee to make an interim payment of £250,000 and pay £450,000 into court on account of the employer’s costs to continue with the claim.

The High Court said the applications by the employer were not only without merit but ‘an attempt to stifle a claim that [the employer] would prefer not to contest on its merits’. The employer could not seriously argue that the employee did not have a reasonable expectation of privacy in those messages. Only about 40 messages (out of 18,000) were relevant in the tribunal proceedings and therefore disclosable. Having found the messages shortly after the employee had left, and before tribunal proceedings were issued, and given they were clearly private, the employer had a duty to tell the employee and hand them over. They did not. Even if proceedings had been underway by then, keeping private information would have been an impermissible form of self help which is discouraged in English law. The employer should have returned them to the employee or her solicitors who would then have had an obligation to disclose that which was relevant. The High Court said the claim seemed to involve a very serious breach of private information and could be worth many thousands of pounds. Strike out was not appropriate.

Only the parties in this case know what really happened here. However, there is a sage lesson about being careful what you wish for. The messages in this case were clearly private. Even if some of them were relevant to the tribunal proceedings, the employer should have returned them to the employee or her legal team as soon as they were discovered (who would then have had a disclosure duty). Although the messages helped the employer to defend the employment tribunal claims, they may well cost the employer in the High Court.

Disability discrimination

Dismissing an employee for disability-related absence can be tricky. Employers sometimes shy away from taking a robust stance for fear of reprisal in the courts. But absence of any kind has a business impact and at some point an employer will be justified in taking action. In the case of McAllister v HMRC, the EAT considered a case where an employee was dismissed for disability-related absence after 245 days’ absence, over 23 occasions, within a two-year period. The employee had anxiety and depression. At the time of dismissal, he had been off work for seven months and was unfit to work in any capacity. He was entitled to a payment under the Civil Service Compensation Scheme (CSCS) because of his capability. However, that payment was reduced by 50 per cent because of his conduct, including disruptive behaviour, failing to answer calls and turning up late during a phased return.

The employee appealed the compensation reduction to the CSCS and it was uplifted to 80 per cent of the full amount. The employee brought employment tribunal claims including discrimination arising from disability relating both to his dismissal and to the compensation reduction. The employment tribunal said his dismissal was justified as a proportionate way of achieving a legitimate aim. His absence was having an adverse impact on the business. The employer had legitimate aims of ensuring both satisfactory and good attendance at work, maintaining fair and effective absence management and efficient use of resources. His dismissal was a proportionate way of achieving those aims. However the tribunal said that a 50 per cent reduction in compensation was not proportionate when a lesser sum of 20 per cent was a less discriminatory way of achieving the same aim. Both parties appealed.

The EAT agreed that the dismissal was proportionate. The evidence showed that the employee’s absence had a real impact on HMRC’s use of resources including time management and staff morale. They had considered whether the same aim could be achieved by a less discriminatory measure and decided against it. There was no error of law. The tribunal’s decision that the 80% reduction was objectively justified was also permissible. The EAT also found that the original CSCS payment was not discriminatory. The alleged ‘unfavourable treatment’ was the compensation payment which the employee was entitled to because of his underlying health condition. Being entitled to a compensation payment was not unfavourable – if anything it was more favourable treatment connected to his disability. A disability-related reduction (for his behaviour, which was affected by his disability) did not alter that it was advantageous overall.

This case contains considerations similar to that of Williams v Trustees of Swansea University Pension and Assurance Scheme which said that entitlement to an enhanced pension on grounds of disability cannot be unfavourable just because it could have been more advantageous. The same was true in this case – the compensation payment was something the employee was only entitled to because he was disabled. This case is a useful reminder about unfavourable treatment and that more favourable treatment can never form the basis of a discrimination claim.

Knowledge of disability

The EAT has adjudicated this month on a disability discrimination claim which homed in on the importance of the employer’s knowledge of disability in discrimination claims. In Preston v E.on Energy Solutions the employee had primary reading epilepsy, a rare form of epilepsy that is triggered by reading. Some time after starting work, he told the employer he had a disability. He was sent a health questionnaire that he failed to complete and he worked for several years with no epilepsy-related problems. He had some sickness absence, including for stress, that was unrelated to his epilepsy. Risk assessments were completed and capability meetings took place where the employee did not raise his epilepsy as an issue.

The employee only raised the PRE as an issue after he had been off sick for some time and his capability was being formally managed. The facts showed that his PRE worsened with stress but was not the cause of it. A number of adjustments were agreed to aid his return to work, including a whole month where the only expectations were that he show up for work and reacclimatise himself with the environment. Occupational health confirmed he was fit to work. He refused to return and was dismissed for gross misconduct for refusing to return to work when he was fit to do so. He brought discrimination claims including one for a failure to make reasonable adjustments.

The employment tribunal said the employer had not discriminated against the employee. The reason for dismissal was not his health but his conduct – his refusal to return to work despite being assessed by occupational health as fit to return. The employee appealed. The EAT confirmed that the requisite knowledge of disability meant knowledge not only of the medical condition but also the substantial disadvantage experienced by the employee. The employee’s evidence had originally indicated that there was no substantial disadvantage from his PRE. PRE was only raised as an issue after he went off sick with stress. That meant the duty to make reasonable adjustments did not arise until after that. From that point, the employer had put in place all reasonable adjustments to allow him to return to work, yet he chose not to. The tribunal had concluded reasonably that the stress, not the PRE, had caused his absence. Therefore his absence was not ‘something’ arising from his disability for the purposes of a discrimination claim. His dismissal was a proportionate way of achieving the legitimate business aim of efficient absence management.
This case is a reminder that the duty to make reasonable adjustments crystallises when the employer has knowledge of both the disability and the substantial disadvantage experienced by the employee. It is important to ask the right questions when health issues are raised, and keep careful records, to ensure that adjustments are made at the right time but also to protect the employer from spurious claims if they arise.

Consultation on holiday entitlement for part-year/irregular hours workers

Last summer’s judgment in the case of Harpur Trust v Brazel was controversial. The Supreme Court decided that a worker is entitled to 5.6 weeks’ holiday each year regardless of how much work is done during the year. The result is that part-year workers – people who are employed all year round but only work some weeks and not others - are entitled to proportionally more paid holiday (when compared to hours worked) than others. The case created a situation where someone who works 37 hours a week every other week will be entitled to the same statutory holiday as someone who works 37 hours every single week, despite working for half the time.

The government has spotted this unfairness and wants to address it. They have launched a consultation to address the disparity and ensure that workers receive holiday entitlement that is proportionate to the time they spend at work. They are looking for feedback about the impact of Brazel in different sectors including agency workers.
They propose to introduce legislation which will pro-rate statutory holiday entitlement over a 52 week reference period based on the proportion of time spent working. This will ensure that people who work for only part of the year, or who work irregular hours, will get paid holiday in proportion with the annual hours they work. The government’s proposed method of calculation involves reverting to the 12.07% calculation that Brazel outlawed: [Hours worked in the previous 52 weeks] x 12.07%. Holiday entitlement would be fixed at the beginning of the leave year based on the hours worked in the previous leave year.

The proposals are not without their own complications and difficulties, including having two divergent methods for calculating holiday entitlement and holiday pay. Feedback from as wide a range of respondents as possible will help weed out practical difficulties so the government can address them before the matter reaches the statute books. The consultation will last 8 weeks. Have your say here:
https://www.gov.uk/government/consultations/calculating-holiday-entitlement-for-part-year-and-irregular-hours-workers

Compensation – discrimination

In Jowett v HSE, the employee won his discrimination claim on the basis of perceived disability when a job offer was withdrawn. He had previously worked for the HSE in a similar capacity some years earlier. In that previous period of employment, the employee had not completed his training and had left after three years. The employee was claiming 5 years’ loss of earnings in his discrimination claim, so the employer wanted to use his previous employment with them to show that it was unlikely that he would have remained in employment with them for that period of time.

The employment tribunal refused to allow the documents into evidence. They said some documents were ten years old and would not be able to prove or disprove the employee’s arguments about how long he would have remained in employment this time round. The employer appealed.
The EAT agreed that the documents were admissible. The documents were relevant in a way that went beyond the theoretical. The documents showed the employee’s employment history in a very similar job which he had left after three years, having chosen to do very different work in the interim. The employment tribunal judge had not properly considered that the tribunal would need to assess compensation based on a percentage prospect basis – how likely it was that the employee would remain in employment for the full five years. The judge had also jumped the gun by dealing with admissibility at a preliminary stage rather than making a decision at the remedy hearing. No reasonable tribunal could have concluded that the documents in question were of such low relevance that they were inadmissible.

This case is a useful reminder about the admissibility of evidence in tribunal claims. It also shows that an employer is entitled to challenge an employee’s compensation claim robustly even when there has been a finding of discrimination. This will be a welcome relief in cases where many years of future loss are being claimed and there is evidence which suggests that the employee may not have gone the distance.

And Finally...

Is what you wear for work important? For some businesses, the answer is a resounding ‘yes’. Office attire is back on the agenda at London law firm Vardags, the same firm where cardigans were ‘verboten’ a few years ago. The message now is to ‘bring your personality to work’. The emphasis is on elegance, regardless of gender, asking employees to dress as they would for Annabel’s, an exclusive private members’ club in London. Annabel’s code involves ‘fabulous party dressing’ as long as it doesn’t show too much flesh. The missive to staff from Vardags suggest that Annabel’s-style dressing might include pink hair, scarlet DMs, gold leather trousers and purple velvet jackets, a far cry from the ‘executive’ look the firm was seeking a few years ago. But as they say, they are seeking to move with the times. Do the changing times require different clothes to show you mean business?

Dress codes in business can be helpful - to promote a brand, denote a particular job or to help develop a company image that aligns with its clients or service users. Some staff may welcome throwing on gold leather trousers for work, but others may feel more comfortable in a suit and tie, which requires little thought and creates a clear divide between work life and home life. Being fabulous may be time consuming and stressful for some and ultimately says little about whether you are good at the job.

Time will tell whether Vardags staff embrace the new dress code and enjoy being fabulous and bringing their personality to work. The big question is – what if showing off your personality involves wearing a cardigan?