Key employment law cases: July 2020

Coronavirus job retention scheme: excluding limb 'b' workers outside PAYE not discrimination

R (on the application of Adiatu & anor) v Her Majesty's Treasury - High Court - 15 June 2020

An Uber driver and his union (the IWGB) made an unsuccessful application for judicial review of the Government's support measures for gig economy workers (who are 'limb b workers' and not paid via PAYE) during the Covid-19 pandemic.  

Uber driver, Mr Adiatu, suffered a dramatic decrease in income following the lockdown measures implemented by the Government in March 2020. As per Uber v Aslam [2018], Uber drivers have the employment status of limb b workers - an intermediate status between employee and self-employed. Mr Adiatu and his union sought a declaration that the Government's decisions in relation to workers, namely to exclude them from the CJRS and from the amended Statutory Sick Pay scheme unless they are paid via PAYE, were discriminatory contrary to the European Convention of Human Rights (ECHR).

In an expedited judgment, the application was dismissed. The Court ruled that the Government's decision to exclude those outside the PAYE system from the CJRS was plainly justified, accepting submissions that the aims of the scheme to support employers, achieve simplicity of design, prevent fraud and provide swift assistance were legitimate. Similarly, the decision to exclude those outside the PAYE system from eligibility for SSP was found to have a 'reasonable foundation' and extending it was not practicable in the circumstances.

Redundancy: consultation still required even if new jobs allocated by interviews

Gwynedd Council v Barratt & ors - Employment Appeal Tribunal - 3 June 2020

The EAT has held that where an employer is appointing new jobs after a reorganisation, it may still be necessary to conduct a consultation process to avoid unfair dismissals.

The Claimants were teachers dismissed for redundancy following the closure of a school. They were unsuccessful in applying for new positions at a new school which opened on the same site. The council decided that the staffing of the new school would be decided by an application and interview process rather than selection criteria to determine who would be made redundant. The Tribunal found that their dismissals were unfair due to the absence of consultation, the failure to provide a right of appeal and the manner in which they were required to apply for their own jobs. The Respondent local authority appealed on the basis that the Tribunal had applied the case law guidelines too rigidly.

The EAT agreed with the Tribunal's decision, but also provided some useful guidance. Whilst in these circumstances it may be appropriate to hold a forward-looking interview process, where the available jobs are substantially similar and the number of roles is simply reducing, a selection process should apply and it would be unfair without consultation or a right of appeal.

Marriage discrimination: dismissal of church minister for broken marriage could be discriminatory but not in this case

The Reverend Jonathan Gould v St John's Devonshire Hill - Employment Appeal Tribunal - 5 June 2020

The EAT agreed with the Tribunal that, whilst the Claimant's discrimination claim might have succeeded if the decision to dismiss him had been significantly influenced by a belief that a minister cannot continue to serve if their marriage breaks down, this was not the case on the facts.

The vicar of an evangelical Christian church, who was dismissed in August 2016, argued that his dismissal was because of the breakdown of his marriage and brought claims for unfair dismissal and direct marriage discrimination. The Tribunal found that, while the breakdown of his marriage was part of the background or context, it was not the reason for dismissal. The reason for his dismissal was a breakdown in trust and confidence due to his behaviour, described as "divisive and manipulative". Such behaviour included the public manifestation of his marital difficulties (sharing very personal details with members of the congregation).

He appealed. The EAT confirmed that the Tribunal had applied the correct test: the decision to dismiss was not significantly influenced by the belief that "broken marriage equals broken ministry" (most of the Leadership team did not hold this view) or in any part by the fact that he was married (or having marriage difficulties). Any vicar, married or unmarried, who behaved as the Claimant did would have been dismissed.

Appeals in employment cases: CoA Judge calls for amended legislation to make it harder for second appeal

Tabidi v British Broadcasting Corporation - Court of Appeal - 11 June 2020

Court of Appeal Judge LJ McCombe has called for the legislation to be amended so that, once an employment case has been heard in the Tribunal and the EAT, permission to appeal would only be granted if the case raised an important point of principle/practice or there was otherwise a compelling reason for the appeal to be heard.

The case was a sex discrimination claim brought by a male journalist who was unsuccessful in applying for a new position which was awarded to a female colleague. The Tribunal dismissed his claim (and he was ordered to pay some of the Respondent's hearing costs). He appealed and the EAT dismissed his appeal. He then appealed again to the CoA. The CoA held that there was no error of law and the Tribunal's judgment was well-founded. Interestingly, the judges said that this was the type of case in which permission to appeal would have been refused if the second appeals criteria applied as it does in most other fields (i.e. if the case raises an important point of principle/practice or there is otherwise a compelling reason for the appeal to be heard).

McCombe LJ said "in my judgment, it is high time that the legislation was amended to enable that test to be adopted for appeals from cases which have already had the attention, not only of the expert ET, but also of the expert EAT. I can see no rational reason for the continued exception from the "second appeals" test for cases of this character".

Future career losses: High Court allows banker's £46 million claim for loss of earnings to proceed (in part)

Benyatov v Credit Suisse - High Court - 22 January 2020

In this application for strike out, the High Court allowed aspects of a claim brought by a former employee for future career losses to proceed to trial.

The facts of the case are unusual. Mr Benyatov was employed as a senior investment banker with bank Credit Suisse. Whilst conducting business in Romania, he was prosecuted and convicted for crimes under Romanian law - the bank agreed that his conduct was in line with international banking standards and he was not guilty of wrongdoing. The bank spent considerable sums on representation and advice to assist him. Following his conviction, the FCA revoked his status as an Approved Person and he was eventually made redundant. He issued proceedings against the bank for breach of various implied duties in contract and in tort.

The High Court struck out Mr Benyatov's claim relating to the adequacy of steps taken by the bank to assist him after his arrest. However, it ruled that his claims based on (i) an implied indemnity to cover his loss of earnings due to his inability to work following his conviction and (ii) a duty of care to assess the risks flowing from his work in Romania should be allowed to proceed to be determined on the facts.

The decision is potentially significant, particularly for global institutions, in relation to the extent to which employers are liable for matters arising in consequence of employment, including losses flowing from criminal conviction or risks arising from working in a particular jurisdiction. The bank has indicated that it is seeking permission to appeal against the decision to allow the two claims to proceed.

For more key employment law updates from us:

• read our Insights on key developments over the last month
• stay Ahead of the Curve with our summaries covering the key aspects of employment law under review by the government
• scroll through our key dates timeline showing recent and anticipated changes to employment law, and
• attend our upcoming events or catch up on training.