Read on for our monthly digest for employers on upcoming employment law changes and key, recent employment tribunal cases.
Unfair & wrongful dismissal
Fekete v Citibank
During his seven years as an analyst with Citibank, Mr Fekete travelled to the Netherlands for a business trip in July 2022. Prior to travelling, Mr Fekete had told a colleague he would be taking his partner on the trip.
After returning to the UK, Mr Fekete claimed expenses for the food and beverages he had purchased while overseas. His management questioned Mr Fekete over his claim, inquiring as to whether he had indeed consumed what was reported. According to Citibank’s policy on expenditure recovery, spouse meals are not eligible for reimbursement.
Mr Fekete claimed that he had solely consumed the items and also, that the amounts were “well within my €100 (£86.70) limit” – the firm’s daily cap on expenses.
The matter was forwarded for further investigation by the firm’s ethics department, and Mr Fekete was questioned regarding his expenses claim.
Subsequently, Mr Fekete admitted his partner did join him for the meals in question. This was a breach of Citibank’s expense management policy and could be deemed gross misconduct.
At the disciplinary hearing, Mr Fekete revealed that, as a result of personal difficulties, he had been taking heavy medication throughout the email exchange over the topic, which had an impact on his comments.
He was dismissed for gross misconduct. He brought claims for unfair and wrongful dismissal.
The Employment Tribunal Judge presiding over the case found in favour of Citibank. Regarding Mr Fekete’s allegation of wrongful termination, the judge acknowledged that although the initial expenditure claim was incorrect, Mr Fekete did not disclose the inaccuracy to the fullest extent when it was initially brought up with him.
It was agreed that Mr Fekete worked for a multinational financial organisation in a trusted position and that he had several chances to correct his error but did not take advantage of them.
The Employment Judge concluded that Mr Fekete’s behaviour was severe enough for Citibank to dismiss him on the grounds of gross misconduct since it was acceptable for Citibank to expect honesty from its workers.
“I have accepted that the expense report may have been submitted in error,” the Employment Judge stated in response to Mr. Fekete’s claim of unfair dismissal. The Employment Judge then evaluated whether the decision to dismiss came within the range of reasonable reactions of a reasonable employer: “Nonetheless, I am confident that an employer would be justified in responding reasonably if someone were to be fired only for making a false statement.”
Employer takeaways
Employers are advised to make their employees aware of any expectations or requirements placed on them in a clear and concise manner. Such expectations or requirements should be reasonable. This could include having a policy in place that outlines specific behaviours that may result in disciplinary action, as well as issues deemed to be gross misconduct.
Unlawful discrimination
Miss AB v Royal Borough of Kingston upon Thames
Miss AB was employed by Kingston Council. She gave her employer eight months’ notice prior to her transition with effect from 1 July 2020.
Throughout her transition, she claimed that her employer had not followed the right procedures and had not upheld its duty of care towards her, providing her with no support or assistance.
She brought a direct discrimination claim on the basis of gender reassignment, citing 23 instances of unfavourable treatment between 1 July 2020 and 14 December 2021. These included being removed from many roles that she had previously held, and several issues in relation to her name change; her name had been substituted for her “deadname” on her pension records due to a delay of over two years in the council updating her name on those records, it took almost two years to update her door pass and name in the staff directory, and her work locker had a sticky note with her new name written on it and her old name crossed off.
The Tribunal agreed with the claimant on several counts, finding she was the victim of direct sex discrimination by the Council in ten of the alleged instances of less favourable treatment. The other thirteen occurrences were not found to be confirmed. The tribunal upheld her claim, finding that the worker’s “deadnaming” constituted “less favourable treatment” and that it had caused her distress.
Issues with the council’s policies and procedures were also identified. The organisation’s policy had not been updated in line with the Equality Act 2010 and specified that harassment of an individual on the grounds of gender reassignment was to be treated as sexual harassment. The policy was only updated when a new Dignity at Work Policy was brought into force in December 2021, “many years after the legislation changed” the judgment stated.
“While we accept that the Equality Act was in place and therefore the employer was bound to meet its obligations, we find that it had failed to incorporate these legal obligations into its policies,” said Employment Judge Fiona McLaren in her decision. “It had not provided appropriate training to staff. It did not have any policy in place that would assist individuals like the claimant. We are surprised at such an omission by a local authority and we find its policies and practices at the time of the claimant transitioning to have been woefully inadequate with both a failure to provide guidance to staff undergoing transition and to team managers.”
The claimant received £25,423 in compensation, which included £21,000 for emotional distress.
Employer takeaways
In effect, it was the employer’s inaction which amounted to unlawful discrimination. Employers are advised to provide support to employees who are transitioning, including meeting with them to understand their needs and how they can be supported, and ensuring specific actions are taken such as updating their name and photographs within the organisation’s systems and records at a suitable time. Training HR, managers and other relevant personnel is also critical, to ensure workers who are transitioning can be signposted to the appropriate support.
Unfair dismissal
Virgin Active Ltd v Hughes
The claimant, Mr Hughes, managed a gym. He was asked to carry out investigations into three members of staff, who then in turn brought complaints about him. Mr Hughes was subsequently suspended and dismissed.
After being dismissed, he brought successful tribunal claims for unfair dismissal and racial discrimination in relation to the handling of his disciplinary and grievance procedures, as well as automatic and “ordinary” dismissal. This was because the reason, or principal reason, for his dismissal was determined to have been due to the claimant making protected disclosures.
Virgin Active appealed the tribunal’s decision, which has now been allowed in part by the Employment Appeal Tribunal (EAT), with only the findings on race discrimination being overturned.
The EAT held that the tribunal had been incorrect in considering three of the claimant’s colleagues as comparators in relation to the race discrimination claim, as their circumstances appeared to differ significantly from the claimant’s. The tribunal had determined that differences in treatment of the comparators had the effect of shifting the burden of proof and upheld the complaint. The EAT confirmed that the tribunal was erroneous in its decision. Despite the fact that the claimants’ comparators’ circumstances appeared to be different from the claimant’s, it had not stated if they were actual comparators.
The EAT provided an example where two individuals of different races go for a job interview. If one of them gets the job and the other does not, that alone would not move the burden of proof; however, if both candidates receive the same score on an evaluation, that could very well change the burden. The ruling also includes a helpful synopsis of the reasons why delay isn’t a grounds for appeal on its own.
Employer takeaways
When determining whether a claimant and an actual comparator differ materially, a tribunal must take these factors into account. The more dissimilar the circumstances between the comparator and claimant, the less probable it is that the disparity in treatment indicates discrimination.
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Last updated: 28 September 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
