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Employment Case Law Update July 2021

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Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.

 

Right to form a trade union

Independent Workers Union of Great Britain v Central Arbitration Committee

The Court of Appeal has held unanimously that Deliveroo riders are not in an employment relationship and do not have the right to form a trade union under Article 11 of the European Convention on Human Rights.

The matter dates back to 2017 when the Central Arbitration Committee (“CAC”) refused an application from the Independent Workers Union of Great Britain (“IWGB”) to recognise Deliveroo for collective bargaining in respect of a group of riders. The CAC founded its decision on the basis that Deliveroo riders were not “workers” within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992.

Central to this determination was that Deliveroo riders are permitted to use substitutes and are not required to provide the services personally.

The IWGB pursued a judicial review of the CAC’s decision, which was dismissed. The IWGB then took the case to the Court of Appeal.

The Court of Appeal also dismissed the appeal. The decision turned on the nature of ‘personal service’ and the fact that Deliveroo riders have an unfettered right of substitution for someone else to perform the work or service. This is inconsistent with establishing an employment relationship for the purpose of Article 11.

Employer takeaway

Interestingly, this decision goes against other recent gig economy rulings in favour of worker status. But the Court was clear that each case is fact-specific and personal service remains critical in establishing employment status.

 

Unfair dismissal

L v K

In L v K, the Court of Session held that it was not unfair to dismiss a teacher who was suspected, but not charged, of possessing indecent images of children.

The claimant was a teacher with an unblemished personnel record. He had been arrested following the discovery of indecent images of children on his computer at home.

During the police investigation, he was suspended from work. The police later dropped the charges.

The teacher’s employer conducted an investigation into the matter and the teacher was subsequently dismissed by the school. The decision was made on the basis that despite the charges being dropped and with no evidence that he had downloaded the images, the school considered there was a safeguarding concern and an irretrievable breakdown of trust and confidence between the teacher and his employer, as well as an unacceptable level of risk to the employer of serious reputational harm. The claimant was dismissed.

At first instance, the teacher’s claim for unfair dismissal was rejected by the tribunal, which found his dismissal was fair under SOSR grounds.

On appeal, however, the EAT found the school had not been clear in setting out the SOSR grounds for dismissal.

The case went to the Court of Session where it was found the EAT had been incorrect in its finding. The court held that it may be reasonable, depending on the facts, for an employer to dismiss someone who may be innocent if there is a genuine and substantial reason to justify the dismissal, as was the case here.

 

Whistleblowing

University Hospital North Tees & Hartlepool NHS Foundation Trust v Fairhall

The claimant, Ms Fairhall, had worked for the trust for nearly 40 years, with an unblemished record.

After making certain protected disclosures about patient care following the death of a patient, she was suspended and subsequently dismissed. She had also raised a grievance and grievance appeal prior to dismissal, both of which were rejected by her employer.

She brought claims for unfair dismissal, wrongful dismissal and detriment on the grounds of making protected disclosures.

At first instance, the tribunal rejected the dismissing manager’s stated reasons for the dismissal and held that the employer’s treatment of the claimant was found to have been ‘grossly unfair’, with multiple individuals pursuing a process to ‘get rid of’ Ms Fairhall because of her disclosures.

The tribunal found in favour of the claimant that the reason, or principle reason, for the dismissal was her protected disclosures.

The trust appealed.

The EAT found against the trust on the matter of the protected disclosure dismissal claim, agreeing with the first instance tribunal that the reason, or principle reason, for dismissing the claimant was the protected disclosures.

However, the EAT found that the pre-dismissal detriment claims had not been considered in enough detail and these were remitted to the ET for further consideration.

 

COVID health & safety unfair dismissal

Gibson v Lothian Leisure

This latest decision relating to COVID health and safety dismissals contrasts to rulings previously discussed in our case law updates.

The claimant, Mr Gibson, was a chef. He was furloughed by his employer at the start of the first lockdown. As lockdown continued, he was asked by his employer to return to work. Mr Gibson had concerns about catching the virus and passing it to his clinically vulnerable father. He raised concerns about the lack of provision of PPE in the workplace and the absence of other COVID-secure practices. He was then dismissed summarily by text message, without notice or payment of accrued holiday.

Mr Gibson brought a number of tribunal claims including automatic unfair dismissal.

Employees are protected from detriment and dismissal under sections 44 and 100 of the Employment Rights Act 1996 (ERA 1996) for exercising their right to leave their workplace if they have a ‘reasonable belief’ that their workplace poses a serious or imminent threat to them or to others.

The tribunal found in Mr Gibson’s favour. It held he met the requirements under section 100 ERA and held a reasonable belief that this harm was ‘serious and imminent’. Mr Gibson was awarded over £21,000 for the unfair dismissal.

Employer takeaway

Employers are reminded that section 100 protection is a day one protection and does not require a period of continuous service.

In addition, the employee’s belief must only be ‘reasonable’. For example, contrast this decision with Rodgers v Leeds Laser Cutting where the employer was shown to have followed government guidance and implemented the necessary measures at the relevant time, while the claimant employee had failed to either raise any health and safety concerns with their employer or to take steps to avert the danger ahead of being absent from work.

 

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: 28 July 2021

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