A number of key employment law cases of significance for employers have recently been decided.
Tribunal Powers of Disclosure
Sarnoff v YZ
The Court of Appeal has held that the employment tribunal (ET) does have the power to make an Order for Disclosure against a party who is not present in Great Britain.
Mr Sarnoff is one of a number of respondents in a tribunal claim brought by the claimant in December 2017, alleging sexual harassment by Harvey Weinstein (the third respondent).
Mr Sarnoff was a board member of a US company who the claimant alleges, along with other respondents, failed to prevent such harassment, enabling Weinstein to carry out the unlawful acts.
In September 2018, the ET made a general order against all the parties for disclosure of relevant documents.
Mr Sarnoff, who lives in the USA, submitted an appeal against an Order for Disclosure, arguing the tribunal had no powers to do so outside Great Britain, under rule 31 of the ET Rules of Procedure 2013.
Mr Sarnoff’s appeal was dismissed by the EAT in May 2020, but the tribunal granted Mr Sarnoff permission to appeal to the Court of Appeal.
In January 2021, the Court of Appeal handed down judgment dismissing Mr Sarnoff’s appeal, adopting a different construction of rule 31 to the EAT, namely that rule 31 is concerned only with disclosure against non-parties and as such, the words “in Great Britain” would not apply.
It held that Rule 29 contains the tribunal’s general case management powers and was the source of the power to make orders for disclosure against parties, and there was no such territorial limitation on that power.
Constructive unfair dismissal
Vaughan v Talbot Underwriting Services
In Vaughan v Talbot, the claimant had been employed as an accounts assistant at Talbot Underwriting Services, a Lloyd’s of London Underwriter.
He brought a claim against his former employer for constructive unfair dismissal, alleging he had been bullied significantly at work. He cited an incident in February 2019 where he was asked to go to a table in the middle of an open-plan floor and was berated for his work by his line manager in an “extremely shocking and belittling” manner. He was subsequently absent and signed off work with stress for a number of weeks.
Mr Vaughan raised a grievance, which was upheld and his line manager issued a final written warning.
On his return to work in April 2019, Mr Talbot alleges to have been treated with “coldness” by senior managers, who would ignore him when previously they would have acknowledged him.
In August 2019, concerns were raised about Mr Vaughan’s performance. He offered to resign instead of starting a capability management process. In November 2019, Mr Vaughan resigned.
The tribunal found in favour of Mr Vaughan. It held Talbot had taken no steps in support of Mr Vaughan’s wellbeing following the period of bullying. The judge held that the incidents of bullying, together with the claimant’s “clear expression on his return that he could not deal with a formal process and he would rather resign than go through this – was conduct … likely to destroy or seriously damage the relationship of trust and confidence [that exists between employer and employee].”
Tribunal limitation periods
Adedeji v UHB NHS
The issue of limitation was considered in the tribunal case of Adedeji v University Hospital Birmingham NHS Foundation Trust.
The claimant, Mr Adedeji, was a surgeon and had resigned from his post at the respondent hospital following a protracted performance and conduct investigation.
The claimant resigned in May 2017, his EDT being 24 August 2017.
On 23 May, ACAS issued an Early Conciliation Certificate (ECC) confirming that the claimant had complied with the requirement to contact Acas before commencing proceedings in the employment tribunal.
On both 16 November and 24 November 2017, the claimant was advised by his solicitors that he had until 24 November to bring the tribunal claim. Despite being advised twice of the relevant time limit, the claimant presented his claim three days late on 27 November, using the ECC number issued in May, despite having withdrawn that application.
Mr Adedeji’s claim was dismissed as being out of time by the tribunal at first instance, and subsequently dismissed again on appeal to the EAT and to the Court of Appeal.
The tribunal has considerable discretion under the Equality Act to consider whether to allow a discrimination claim presented out of time, depending on the facts of the case and in light of past decisions such as British Coal v Keeble.
The Court of Appeal ruled on the basis of there being an absence of any good reason for the delay in complaining and of issuing three days after the time limit, and that the claimant’s misunderstanding of the position about the ACAS certificate did not justify the grant of an extension.
Unfair dismissal & disrepute
Rawal v Royal Mail Group Ltd
Mr Rawal was dismissed from Royal Mail’s Watford depot for gross misconduct after a member of the public filmed him urinating in a lay-by while driving his delivery van. He was awarded £37,720 from Royal Mail due to unfair dismissal.
There are a number of key takeaways for employers.
The first relates to unfair dismissal. The tribunal found the main reason for Mr Rawal’s dismissal was his trade union activities. This is unlawful and considered an automatically unfair reason for dismissal.
Although his employer had followed a disciplinary process, this was found by the tribunal to be flawed and the appeals process incapable of remedying the unfair dismissal issue. For any disciplinary procedure to be fair and lawful, it must involve a detailed investigation that follows the ACAS Code of Conduct.
Employers also need to ensure they are treating similar conduct consistently across their workforce. The claimant was able to demonstrate on the balance of probabilities that a significant number of his non-office-based colleagues will at one point or other have been ‘caught short’ on shift and forced to urinate in a public place. But there was no documented evidence of previous disciplinary procedures for postal workers urinating in public.
The second points are tied into disrepute investigations. There must be a link that can be made between the individual to the organisation. In this case, it was clear he was a Royal Mail employee. Employers should review staff handbooks, contracts of employment and any other policy documents to ascertain whether guidance has been given regarding the conduct in question.
A balanced decision then needs to be made following a detailed investigation as to whether there is likely to be a detrimental effect on the business’ reputation.
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: 27 January 2021