Read on for our monthly digest for employers on upcoming employment law changes and key, recent employment tribunal cases.
Unfair Dismissal
Alom v Financial Conduct Authority
Mr Alom, an FCA employee, was summarily dismissed for gross misconduct after the FCA concluded he sent an anonymous hostile email to a colleague and then breached confidentiality in a further email to managers. A forensic check of his work emails did not identify the sender, but the FCA relied on the content and surrounding facts.
The tribunal rejected his unfair dismissal, discrimination and harassment claims, finding a genuine belief in guilt, reasonable grounds and a reasonable investigation despite some minor errors.
On appeal, the EAT dismissed all grounds. It held there is no absolute requirement to provide interview transcripts where the employer is not relying on those transcripts and the employee has enough information to answer the case. An HR “script” for the chair did not show predetermination where the decision maker reached an independent view. A search of the claimant’s work computer did not affect fairness because it was not relied on for the dismissals.
A nine-month delay in the tribunal’s reserved judgment was excessive, but did not render the hearing unfair, applying Bangs v Connex.
Employer takeaways
The decision underlines the importance of contemporaneous record-keeping in disciplinaries. It helps to set out, in simple terms, what material the disciplinary chair actually considered and what they relied on. Where the case does not turn on witness interviews, full transcripts are not essential, but the employee still needs enough detail to answer the allegations. That usually means the core documents and a clear statement of the charges.
HR support is acceptable where it structures the meeting and ensures procedural steps are covered. Problems arise when materials read as opinions on credibility or proposed outcomes. A short note from the chair, in their own words, explaining the evidence reviewed and their reasoning, will show an independent decision.
Where devices or mailboxes are searched, the paperwork should show that the policy allows it, that the scope was limited to what was necessary, and why the search was undertaken. If the search played no part in the charges or the outcome, recording that fact can help close off privacy arguments.
Procedural slips do not automatically make a dismissal unfair. Tribunals look at overall fairness under section 98(4) ERA 1996. Clarity on the allegations, a proportionate investigation, disclosure of the evidence actually relied on and an independent decision with reasons remain the points that carry weight. Delays in a tribunal issuing its written judgment do not, on their own, show that the hearing was unfair.
Discrimination Based on Language
Ms S Kellington-Crawford v Newlands Care Angus Ltd
Ms Kellington-Crawford, an English senior carer at Newlands Care Angus Ltd, attended a formal performance meeting with three managers who conversed in Polish. She did not understand Polish and felt excluded during a sensitive discussion about her conduct and performance.
The Employment Tribunal held that, in the specific context of a formal meeting dealing with disciplinary and performance issues, speaking a language unknown to the claimant amounted to direct race discrimination and harassment contrary to the Equality Act 2010. The Tribunal recognised there was no intent to harass, but found it was reasonable for her to feel humiliated and excluded in those circumstances. It awarded injury to feelings of £2,500 and also upheld a small unlawful deductions claim of £16.97. Other claims were dismissed.
Employer takeaways
Language choice in day-to-day interactions is rarely an issue. The risk arises in formal settings where rights and obligations are being discussed. In hearings or meetings that address performance, conduct or grievance, everyone present needs to be able to follow and participate fully. If any participant does not share a common language, plan ahead. Agree the working language, arrange an interpreter if needed and record that step in the invite and minutes. That avoids claims that the process excluded the employee or created a hostile environment.
Policies should be specific about formal meetings. A general “speak English at work” rule can be problematic. A clearer approach is to state that formal HR meetings will be conducted in a single agreed language understood by all attendees and that translation or interpretation will be provided where required. Train managers to pause and switch back to the agreed language if side-conversations begin in another language. Document the steps taken, including any interpreter arrangements and checks for understanding.
Use proportionate remedies thinking. Where an allegation concerns exclusion through language in a formal setting, early acknowledgement and a corrective step can limit exposure. Offer to reconvene the meeting with interpretation or a neutral note-taker. Follow up with a short note confirming the agreed language for future formal meetings. This shows the employer took reasonable steps to prevent a repeat and helps on liability and remedy if a claim is later brought.
Employment Status
Partnership of East London Co-operatives Ltd v Maclean
Ms Maclean, a registered nurse, provided clinical streaming shifts for Partnership of East London Co-operatives Ltd (PELC). She invoiced through a personal service company, Maclean J Ltd. After the relationship ended she brought claims that required her to be either an employee or a worker. At a preliminary hearing the tribunal held she was both. PELC appealed.
The EAT upheld the tribunal’s conclusion that the contract was with Ms Maclean personally, not with her company. The panel relied, in particular, on a payment authorisation in which PELC’s obligation was framed as being owed to “me”, with payment directed to the company account, and a “Members Agreement” pointing to an individual relationship. However, the EAT held that the tribunal’s reasoning on employee status and worker status was inadequate. The finding of mutuality of obligation, despite documents stating no obligation to offer or accept shifts, was insufficiently supported. The treatment of personal service was also flawed, as the tribunal had concluded substitution was “impracticable” without adequate explanation. The worker and employee findings were quashed, and the status issues were remitted.
Employer takeaways
A PSC does not put the relationship beyond employment law if the paperwork points to obligations owed to the individual. Where contemporaneous documents show the engagement sits with the person, tribunals can treat the contract as personal even if invoices run through a company. Consistency at onboarding matters. A single form that frames duties to the individual can carry real weight.
For shift-bid arrangements, the question of mutuality turns on evidence. Tribunals look at whether there was any obligation to offer or accept shifts. Rota mechanics, allocation rules and actual patterns of work should reflect the ad hoc nature of the engagement if that is the reality, with no underlying guarantee of hours.
Personal service often proves decisive. A substitution clause will help only where it operates in practice. If the right is theoretical or blocked by operational constraints, the clause will not assist. If the employer’s position is that substitution would have been allowed, examples or written guidance showing how this worked in practice will be important.
In status litigation, it is helpful to separate the issues: who the contract is with, whether there is a requirement for personal service, and whether there is mutuality across any umbrella arrangement. Maclean shows how weak reasoning on mutuality or substitution can unravel findings on both worker and employee status on appeal, even where the conclusion on a personal contract remains intact.
Unfair Dismissal Compensation
Davidson v National Express Ltd
Ms Davidson, a National Express driver, succeeded on unfair dismissal because the appeal stage was procedurally unfair. The tribunal then made heavy reductions: 75% Polkey for likely fair dismissal after a proper process, 75% contributory conduct applied to both basic and compensatory awards, and a 10% ACAS uplift. When assessing future loss, the tribunal limited compensation to her 65th birthday even though she was 63 at award and had given evidence that she intended to work until 70.
On appeal, the EAT held the tribunal had used the wrong test. The question is what is just and equitable having regard to the loss sustained because of the dismissal, evaluated on the evidence with industrial common sense. A blanket cut-off at 65 was not reasoned. The tribunal should have weighed her stated plan to work past state pension age against real-world contingencies such as health or labour market factors, rather than reducing simply because there had already been a two-and-a-half-year period of loss. The future-loss question was remitted.
Employer takeaways
State pension age is not a hard ceiling for future loss. Where a claimant is close to or past state pension age, tribunals weigh the evidence on likely working life and then discount for real-world contingencies. Employers can help the tribunal with neutral data on the role and the market, for example typical tenure, shift and roster patterns, safety or fitness standards where genuinely required, re-employment prospects in the sector and pay trajectories. Keep the focus on the role rather than the person’s age, and avoid speculative material that could be read as stereotyping.
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