Employment Case Law Update March 2022

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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.

 

Employment Tribunal compensation limits increase

The limits for basic and compensatory awards for unfair dismissal are set to increase.

From 6 April 2022, the basic award will increase to £17,130, up from £16,320. The maximum compensatory award for unfair dismissal claims will increase to £93,878, up from £89,493.

In addition, the weekly pay rate used to calculate the compensation awards will be capped at £571 (up from £544) from 6 April 2022.

The increased rates will apply where the claimant’s employment is terminated on or after 6 April 2022.

 

Protected disclosures

Frewer v Google UK Limited and Others [2022] 

The claimant had their employment terminated by Google following allegations of sexual harassment. He then brought tribunal claims against his former employer, including automatically unfair dismissal relating to protected whistleblowing disclosures alleging that Google had engaged in anti-competitive behaviour.

At first instance, Google sought orders under the Employment Tribunal Rules of Procedure 2013 to anonymise its clients and redact commercially-sensitive detail within the case documentation, including within the judgment. The tribunal refused the claimant’s application to set these requests aside, and granted the order, determining that the identity of Google’s clients was irrelevant to the issues of the case and that anonymisation concerned minimal interference with open justice principles.

On appeal, the EAT judge held that the employment tribunal had erred in granting the anonymisation order by failing to give proper consideration to the principle of open justice, such as the importance of naming names. The tribunal was found to have given insufficient scrutiny to the competing rights of Articles 6 and 10 of the Human Rights Act.

The EAT stated there is a public interest in hearings being conducted in public to allow the media to report on the names involved and further, that in this case, there was a strong public interest argument in light of the claimant’s allegations about Google’s practices.

The case has been remitted.

 

Equal pay

Macken v BNP Paribas

In 2019, the claimant, Mrs Macken, was successful in her claims against her former employer (bank BNP Paribas) for equal pay and sex discrimination, but the remedy hearing did not take place until February 2022 due to COVID.

At the hearing, the claimant was awarded more than £2,080,000 in damages, which included £15,000 of ‘aggravated damages’ due to BNP Paribas’ apology falling short of being ‘genuine and heartfelt’.

In addition to paying compensation, the bank was also ordered to undertake an equal pay audit, under the Equality Act 2010 (Equal Pay Audits) Regulations 2014. According to the Regulations, such orders can be made where there has been a breach of equal pay regulations and where certain exemptions do not apply. The tribunal held the bank did not qualify under any of these exemptions.

This is the first time a tribunal has made such an order against an employer. The case serves as a warning to employers to ensure they are taking their equal pay responsibilities and obligations seriously through transparent and compliant equality policies to avoid potential complaints.

 

Victimisation

Warburton v The Chief Constable of Northamptonshire Police.

Mr Warburton had made an application for a police officer role with Northamptonshire Police, and in doing so disclosed what amounts to a protected act – that he had an ongoing unlawful discrimination claim against Hertfordshire Constabulary. Mr Warburton claimed that after making this disclosure, his job offer was subsequently withdrawn.

Mr Warburton brought a claim for victimisation.

In defending the claim, the respondent claimed the application had not been successful due to problems with the vetting information, meaning the requisite vetting procedure could not be completed.

At first instance, the tribunal found the claimant had undertaken a protected act but determined he had suffered no detriment.

The claimant appealed.

On appeal, the EAT made two determinations.

First, the tribunal had failed to consider the correct question or to apply the correct test when deciding that the claimant had suffered no detriment. The Shamoon test (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003]) should apply when determining if detriment has been suffered for the purposes of a victimisation claim: “whether the treatment is of such a kind that a reasonable worker would, or might take the view that in all the circumstances it was to his detriment“.

The EAT also found the tribunal had erred in respect of causation, and whether the protected act had had a significant influence on the outcome.

The claim was remitted for rehearing.

It is clear from the EAT’s decision that detriment has to be interpreted widely, which results in greater risk exposure for employers in respect of victimisation claims. Reviewing policies regularly and adequate training should be used to manage the legal risk of tribunal claims.

 

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: 27 March 2022

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

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

Legal Disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct at the time of writing, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

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