Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.
Unfair dismissal
Charalambous v National Bank of Greece
The claimant, Ms Charalambous, was employed as a relationship manager. In January 2019, she emailed her union representative and her lawyer a spreadsheet containing a breakdown of all private clients, commission, revenue, assets, and other additional information. She forwarded the email to her personal email account and to her brother, who worked for a different bank. This was deemed to be a data protection breach.
Ms Charalambous’ manager, Mr. Vathis, met with her to conduct an investigation into the client data breach. Mr. Hood, a different manager, held two more in-person disciplinary meetings with Ms Charalambous and her union representative.
Mr. Hood then drafted a comprehensive report, which he sent to Mr. Vathis, who then decided to dismiss Ms Charalambous without meeting her.
Ms Charalambous brought claims for automatic unfair dismissal and detriment for whistleblowing-related reasons, ordinary unfair dismissal, and racial discrimination.
At first instance, the Employment Tribunal found in favour of the employer, since the reason for dismissal was gross misconduct.
However, Ms Charalambous was permitted to appeal on the procedural fairness of the employer’s dismissal process.
Citing case law to support her argument, Ms Charalambous asserted that her dismissal was unfair since the deciding manager had failed to meet with her to discuss the case before taking the decision to dismiss her.
The EAT, however, held that the dismissal was fair.
While a pre-decision meeting between the dismissing manager and the relevant employee is desirable and good practice, the critical factor is that the employee is given the opportunity to make a submission and state their case, which can be in written or verbal form.
Employer takeaways
Depending on the circumstances, a dismissal may be fair even where the dismissing manager does not meet with the employee directly to discuss the case before deciding to dismiss, if the employee has been given the opportunity to make a submission – including written form – against the allegations.
While this decision highlights the potentially broad definition of ‘fairness’, it remains best practice and generally advisable to hold a meeting – whether face-to-face or where appropriate, remotely using video conferencing – with the relevant employee prior to a decision being made on a disciplinary matter. Much will depend on the specific facts of the matter, for instance, if the organisation’s disciplinary policy requires an in-person disciplinary hearing, proceeding to dismiss without one is likely to be deemed unfair in the absence of any justifiable reason.
Unfair dismissal & unlawful discrimination
Owen v Willow Tower
Ms Owen worked for Willow Tower OPCO 1 Ltd, a company that operates residential nursing care facilities.
In June 2021, Willow Tower determined that all staff and contractors at the care home where Ms Owen worked were required to have COVID vaccinations, even though the law mandating vaccinations for care home employees had not yet taken effect.
In light of her refusal to be vaccinated, she was informed that the care facility would continue to offer her work, but this would involve being reassigned, likely to the kitchen or laundry department.
At a grievance hearing in August 2021, Ms Owen stated that she followed a vegan diet and therefore believed she was exempt from vaccination.
She later clarified in her written submission to the Employment Tribunal that “there was no clarification as to whether or not the vaccination contained animal products or indeed had been originally tested on animals.”
She also raised concerns regarding the vaccine’s efficacy and any potential side effects that were unclear at the time.
Given that she followed a vegan diet, she was referred to occupational health to determine if there were medical reasons why she could not be vaccinated, but there was no evidence that she was medically exempt from the vaccine.
In accordance with the Health and Social Care Act 2008 (Regulated Activities)(Amendment/Coronavirus) Regulations 2021, she was dismissed in November 2021, when vaccination became a requirement for deployment in CQC-registered residences.
Ms Owen brought claims for unfair dismissal and religion or belief discrimination.
The first claim for unfair dismissal was rejected on the grounds that the claimant did not have sufficient continuity of service.
The employment tribunal then ruled that the claimant’s belief in veganism did not constitute a protected characteristic within the meaning of section 10 of the Equality Act 2010.
The Tribunal determined that Ms Owen’s testimony lacked the required level of conviction. While she adhered to a vegan diet and avoided certain non-vegan products, such as leather, she was unable to specify when she adopted ethical veganism or provide specific details about how she structured her life around this belief beyond her dietary choices.
She also admitted to using non-vegan products during her employment. In addition, Ms Owen’s documentation lacked substantial references to her ethical veganism, focusing instead on the experimental nature and potential health and safety concerns of the COVID-19 vaccine.
Accordingly, the Tribunal determined that Ms Owen failed to establish a protected characteristic within the meaning of Section 10 of the 2010 Equality Act, and her claim was dismissed.
Employment status
United Taxis v (1) Comolly (2) Tidman
United Taxis Limited was owned by multiple member-shareholders, who would each pay a subscription to register vehicles and access the work provided by the company, as well as provide vehicles to other drivers.
The agreement between the company and the member-shareholders set out various requirements (such as compliance with byelaws) but did not include any provisions or state any requirements between a member and those engaged under them.
Mr Comolly registered with United Taxis Limited as a driver through one of the company’s member-shareholders, Mr Parkinson, using his own vehicle.
After that arrangement ended in 2014, Mr Comolly worked through another member-shareholder, Mr Tidman, using Mr Tidman’s vehicle. There was no formal agreement between the two parties.
After that relationship ended, the claimant brought various claims to the employment tribunal on the grounds that he was either an employee or a worker of United Taxis or Mr Tidman.
At first instance, the ET determined as a preliminary issue that the claimant was an employee of Mr Tidman and a worker of United Taxis, referring to the decision in the Uber case.
On appeal, it was held:
- An individual could not legally be a worker and an employee simultaneously for the same work;
- The Tribunal had erred by implying a contract between the claimant and the company;
- The Tribunal had failed to properly take into consideration the factual points raised which pointed away from an employee/worker relationship.
Mr Comolly was therefore held to be a worker for Mr Tidman, and an employee for Equality Act purposes, with no contractual relationship between him and the company.
Employer takeaways
This case highlights the role of facts of a situation when determining employment status, regardless of how a relationship or individual is labelled or referred to between the parties.
The EAT has remitted the case to the same ET to consider by way of a careful proportionality assessment whether the school’s actions were lawful and were necessary for the protection of the rights and freedoms of others.
While the guidance from the EAT does not serve as an exhaustive checklist, it does provide employers with clear direction on the factors to consider prior to disciplining employees who have attempted to express their beliefs in a manner that others may find offensive.
The balancing of these rights in the workplace is a complex challenge for employers, requiring careful management both to avoid and deal with conflicts that may arise.
Acas publishes annual report for 2022 to 2023
ACAS has published its annual report and review for the year 2022-2023, citing highlights such as:
- Intervention in 621 collective disputes between employers and groups of workers – a 22% increase from the previous year
- 105,754 notifications for early conciliation and ACAS staff finding a resolution in over 72,000 cases
- 649,179 calls from employers and employees across Great Britain to the ACAS helpline
Need assistance?
If you have a question about employment case law and the impact of tribunal and court decisions on your business, DavidsonMorris’ experienced employment lawyers can help. Working closely with our specialist human resource colleagues, we offer a holistic advisory and support service for employers encompassing both the legal and people risks of workforce management. Speak to our experts today for advice.
Last updated: 25 July 2023
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
