Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.
Indirect sex discrimination
Allen -v- Primark Stores Limited
In this case, the trinbunal considered whether a requirement to work late one evening a week placed women with childcare responsibilities at a disadvantage.
Indirect discrimination is where an employer applies a provision, criterion, or practice (PCP) to a worker that appears neutral but puts, or would put, members of the same sex at a disadvantage when compared to the opposite sex, and the employer cannot objectively justify the PCP by showing it to be a proportionate means of achieving a legitimate goal.
When examining group disadvantage, case law has held that tribunals are permitted to take into consideration the fact that women are more likely to be responsible for childcare.
The EAT recently addressed the appropriate comparison pool for determining whether an employer’s requirement that a retail employee be available to work late on Thursday evenings has a discriminatory effect.
Ms Allen was a department manager at major retailer Primark. Swas scheduled to return to work on 1 November 2019, following maternity leave. She is a single mother of one with little family support. She made a flexible working application for a change to her contractual hours before she was expected to return to work, aware of her childcare commitments. She was especially worried about being put at a disadvantage because her contract required her to guarantee her availability to work late nights.
Her employer agreed to limit her request for flexible working hours to a requirement to work late on Thursday evenings. She resigned as a result of her appeal being denied.
She then brought a claim for indirect sex discrimination and constructive unfair dismissal, claiming that she was expected, as per the PCP, to guarantee her availability for the Thursday late shift, which she claimed she couldn’t do due of her childcare obligations. The employment tribunal included two male employees in the pool for comparison while assessing the PCP’s discriminatory impact, and decided that Ms Allen could not prove that the PCP put women at a disadvantage compared to males. As such, there was no presumption of indirect sex discrimination, and the employer did not have to show that its PCP was justified objectively.
The EAT upheld Ms Allen’s appeal, finding that the tribunal had erred in failing to address the specific PCP that she had complained about. This was the condition for being accessible late on Thursday evenings only, not for being available late in general.
Because of this error, the tribunal included two male employees in the pool for comparison who had not been subjected to the same level of compulsion by the employer (although they were occasionally ‘asked’ to cover for a colleague’s absence, they were not required to guarantee their availability for the late shifts in question, nor were they compelled to agree to work late).
The tribunal’s ruling was overturned, and the claim has been returned to the tribunal for rehearing.
If Ms Allen can demonstrate that the PCP disadvantages more women, her employer will have to objectively justify her being required to work late on Thursdays.
Unfair Dismissal: Covid-19
Rodgers v Leeds Laser Cutting Ltd
During the first Covid lockdown, Leeds Laser Cutting (LLC) conducted a risk assessment and implemented several safety precautions to enable it to continue operating, including staggered start/finish hours, masks, and tight social distancing measures.
Mr Rodgers informed his manager days later that he would be absent from work ‘until the lockdown has eased’ due of his fears of infecting his vulnerable children.
There was then no contact between Mr Rodgers and LLC, and a month later, Mr Rodgers was dismissed.
As Mr Rodgers did not have the requisite two years; service to bring an unfair dismissal claim, he brought an automatic unfair dismissal suit under ERA, s 100(1)(d), which was a ‘day 1’ employment right.
He argued that he was dismissed automatically and unfairly because he used his right not to return to work to protect himself from dangers that he reasonably believed were substantial and immediate, and that he could not reasonably have been expected to avoid.
The claim was dismissed by a tribunal. Mr Rodgers expressed some general worries regarding Covid-19, but they weren’t related to his profession. Furthermore, his behaviours (e.g., not wearing a facemask during self-isolation, leaving his home during self-isolation, and working in a pub during lockdown) did not support his claim that there were substantial and impending dangers.
Mr Rodgers appealed. The EAT agreed that an employee could reasonably feel that substantial and urgent risk was occurring outside the workplace, preventing him from returning to work. On the facts, however, the tribunal determined that Mr Rodgers did not have a reasonable belief that there were substantial and impending dangers at work or elsewhere. Even if the tribunal was incorrect, it was within its rights to conclude that Mr Rodgers may have been expected to take reasonable precautions to avoid such dangers, such as wearing a mask, maintaining social distance, and sanitising his hands. The appeal was dismissed.
ACAS Early Conciliation Procedure
Pryce v Baxterstorey Ltd
The claimant submitted her ET1 form to the employment tribunal on the day she was dismissed, but was unaware that she required an Early Conciliation certificate number at the time. She acquired an ECC number days later and emailed it to the ET, requesting that it be added to the form.
This instruction was first misplaced, but the ECC number was subsequently added to the form.
Her claim was initially allowed to proceed, but the tribunal eventually dismissed the case due to a lack of jurisdiction since the claim had been presented at a time when no certificate was available.
The claimant appealled.
The EAT dismissed the appeal, ruling that the claimant’s sending of the certificate could not be considered a “re-presentation” of the claim because rule 8 of the ET Rules required the claimant to send a completed ET1 to the tribunal; and there was no jurisdiction to waive the requirement to present a new claim that predated the date of the early conciliation certificate. Otherwise, the express provisions of s18A(8) of the Employment Tribunals Act 1996 would be violated.
In short, submitting an ACAS Early Conciliation Certificate to the tribunal after filing an ET1 does not rectify the procedural flaw of issuing an ET1 without a certificate.
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: 30 May 2o22