In this issue of our monthly employment case law update, we round up five of the most interesting and noteworthy cases for employers from 2023. Given the breadth of developments in employment law during this period, shortlisting cases was a particular challenge, but our monthly case law updates continue to be available on our website for your reference.
1. Higgs v Farmor’s School and the Archbishops’ Council of the Church of England
Protected beliefs
This case provided valuable guidance from the EAT on how to deal with workplace and personnel issues relating to controversial beliefs in the workplace.
Read our full case review here.
2. Lynskey v Direct Line
Menopause & discrimination
Ms Lynskey worked for Direct Line as a telesales consultant. During her first few years, she performed well. Ms Lynskey then started experiencing menopausal symptoms in 2019, including anxiety, memory loss and concentration issues. This adversely affected her performance. When Ms Lynskey raised the issue, her line manager agreed that she could move to a different role. In addition, Ms Lynskey had weekly coaching sessions, although a referral to occupational health was not made.
Despite these adjustments, Ms Lynskey’s symptoms persisted, and she was given a “need for improvement” rating in her subsequent performance assessment.
Ms Lynskey then received a disciplinary notice and formal performance management starting in April 2021. Stress resulted in Ms Lynskey becoming ill during this process.
After being sent to occupational health, the OH adviser informed Direct Line that Ms Lynskey would probably be eligible for disability benefits under the Equality Act of 2010.
Following her resignation in May 2021, Ms Lynskey filed a number of claims, alleging failure to make reasonable adjustments and disability discrimination, among others.
The tribunal determined that before disciplining Ms Lynskey, Direct Line should have taken into account her menopause symptoms and whether implementing reasonable adjustments would resolve or lessen the performance issues. Reducing performance goals, switching roles, or opting not to pursue a formal disciplinary procedure at all were examples of these modifications. Although Ms. Lynskey informed her boss of her menopausal symptoms in 2019, this should have done prior to the referral to Occupational Health in 2021. The tribunal also determined that Direct Line could have taken a variety of reasonable measures to support Ms Lynskey’s performance, including lowering performance goals, thinking about moving her to a different position, or forgoing the disciplinary procedure entirely.
Ms. Lynskey was granted £64,645 by the Employment Tribunal, which also included a £2,500 award for aggravated damages.
In brief
When a company learns that a worker is experiencing menopausal symptoms that interfere with their ability to function at work, it should investigate the likelihood that the worker has a handicap and take appropriate action to prevent them from receiving unfavourable or less favourable treatment. As soon as possible, send someone to occupational health, and find out whether there are any reasonable accommodations that may be made to eliminate or lessen any disadvantage.
3. Chief Constable of Police Service of Northern Ireland v Agnew.
Backdated holiday pay
The claimants were civilian employees and police officers in Northern Ireland. They filed claims that they were underpaid for holidays since, at the time of their yearly break, mandatory overtime wages had not been taken into account when calculating holiday compensation. Rather, they were paid simply the minimum wage. Ultimately, the parties agreed that overtime payments ought to have been included in holiday pay, carrying over from other case law that emerged during this time. The question that still needed to be answered was how far back the Claimants could make a claim. The relevant Northern Irish legislation is similar to the Employment Rights Act 1996 in that, unless the deduction was a part of a series of deductions, a claim for failure to pay holiday pay must be made within three months of each alleged incident of underpayment. The additional deductions can be linked together as long as a claim is filed within three months following the final deduction in the series.
However, case law has also demonstrated that if there is a three-month or longer lapse between two deductions, they are not considered to be part of a series. This meant that the chain was broken for the claimants in Agnew if there was a gap of more than three months between their periods of yearly leave and, consequently, between their vacation payments. This would imply that any underpayments for holidays that occurred before the chain break were not refundable due to the fact that they were made after the deadline.
Choice
The Supreme Court ruled in favour of the plaintiffs, holding that a sequence of deductions would not necessarily end if there was a more than three-month lapse between an illegal deduction and a legitimate payment. It might not be possible to break the chain of deductions if they are factually connected; this would depend on the specific facts of each situation. They pointed out:
“The question of fact that must be answered in light of all the relevant circumstances is what constitutes a series [of deductions].” In this instance, “every illegal underpayment was connected by the shared error that holiday pay had been computed using basic pay alone.”
Important points
Employers who are sued for failing to compute holiday pay accurately might not be able to use the defence that a three-month interval between deductions breaks the pattern of deductions. It is up to a tribunal to determine whether or not there has been such a break by reviewing all the factual circumstances.
4. Charalambous v National Bank of Greece
Disciplinary procedures
The claimant experienced a dismissal due to grave misconduct following a data breach. The manager who was fired was involved in the initial phases of the inquiry during the process that resulted in his termination. However, after recognising he would have to make the final choice, he turned the investigation up to another manager to finish. Ultimately, without consulting with the Claimant to go over the issue, the management decided to fire the employee based only on a written review of the investigative reports. After the appeal was denied, the claimant filed a claim with the Employment Tribunal, which determined that the dismissal was reasonable. To the EAT, the Claimant filed an appeal.
The Claimant contended during the appeal that the dismissal was unfair if the dismissing manager had not met the employee, citing a prior EAT case, Budgen & Co v. Thomas. However, the EAT rejected this contention. The EAT acknowledged that it was preferable for a meeting to occur prior to a dismissal decision, but concluded that the essence of the Budgen case was that an employee should be afforded a sufficient opportunity to explain their position prior to any dismissal decision, which the tribunal determined had happened in this case, even though the procedure was “less than ideal.” In addition, the appeal required a conference, which would have corrected any errors in the initial round of the procedure.
Overall, the tribunal determined that the dismissal was just and the procedure fell within the range of appropriate replies.
We suggest approaching this cautiously. Given the particulars of this case, it would be extremely difficult for an employer to fire a worker without first meeting them and still have it ruled to be fair. Even if you win the case, it is always important to keep in mind the expenses and time involved in defending a claim of this nature. It is likely to be possible to prevent many claims from ever being made if you follow a rational and transparent process that is outlined in your internal processes and developed using the ACAS code. Being in a position to avoid litigation is significantly better than winning a case after thousands of pounds and months (or possibly years, given the backlog at Tribunals) of wasted effort.
5. Fire Brigades Union v Embery
Employment status
In order to focus more of his time on his responsibilities as an elected representative for the Fire Brigade Union (FBU), Mr. Embery, who was employed by the London Fire Brigade (LFB), was relieved of his duties. The FBU then fired him for breaking one of its regulations. He accused the FBU of unfairly dismissing him. The Employment Appeal Tribunal (EAT) rejected his claim, concluding that there was no employment relationship between Mr. Embery and the FBU. Even though Mr. Embery was working for the FBU, he was still paid by the LFB, who also had to contribute to his pension and National Insurance (NIC). This decision upheld the common rule that a person cannot work for two distinct companies at the same time under two different employment contracts.
The question of whether Deliveroo drivers should be treated as employees for the purposes of collective bargaining was recently determined by the Supreme Court in the case of Independent Workers Union of Great Britain v. Central Arbitration Committee. Following their membership in the Independent Workers Union of Great Britain, Deliveroo drivers submitted a request for recognition from the Union in order to engage in collective bargaining. Deliveroo declined the request. Subsequently, the Union submitted an application to the Central Arbitration Committee (CAC), an entity with the authority to mandate Deliveroo to acknowledge the Union. The drivers’ status as “workers” under the Trade Union and Labour Relations (Consolidation) Act 1992 is one of the requirements that had to be met for the Union to be recognised. Because the drivers did not fit the criteria of a worker, the CAC denied the Union’s claim.
The Supreme Court heard an appeal in the case and upheld the CAC’s ruling. Unrestricted right of substitution for the drivers played a significant role in the decision. Although the riders seldom exercised their right of substitution, the Supreme Court concluded that the right existed. As a result, the riders were under no duty to offer the kind of personal service that is “essential to the existence of an employment relationship.” This case emphasises how important it is to have a legitimate right of replacement in order to refute a worker status claim.
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: 29 December 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
