Key employment law cases: October 2020

Tribunal claims: EAT discourages "narrative" style of pleadings

C v D - Employment Appeal Tribunal - 10 September 2020

In this appeal against a refusal to allow amendments to a claim, an EAT judge has warned against the use of a "narrative style" in claim forms and response documents.

The Claimant had brought claims of unfair dismissal and discrimination and her particulars of claim ran to 37 paragraphs across six pages. Whilst they set out a lengthy and detailed narrative of events, they failed to set out clearly which facts related to which protected characteristic, the alleged type of discrimination or the relevant statutory provisions. The Respondent lodged its response, also in a narrative style, and requested further and better particulars. Following a Case Management PH, the Claimant provided further particulars alongside a List of Issues. However, the Respondent objected arguing that the document raised new claims and facts. Following a subsequent PH, an employment judge refused to allow certain amendments to the claim and the Claimant appealed.

In the appeal judgment, HHJ Tucker set out some general observations. Acknowledging that "narrative" style pleadings have become the norm rather than the exception, she warned against using "narrative" style, particularly by legal representatives, who she encouraged to "adopt a more succinct and clear drafting style". She also distinguished between claim forms and witness statements, stating that it should be a brief statement of facts which allows the Respondent to understand what it is they have done (or not done). The Respondent can then admit, not admit or deny the facts and claims asserted and where appropriate set out its own version of the facts. She said that for an instructed lawyer, the task in hand when drafting pleadings is to "distil the relevant factual matters to their essential or key component parts". Otherwise, as was the case here, case management becomes much more difficult and significant time and cost is lost.

Unfair dismissal: re-engagement not practicable for chatroom trader

Ramchandani v Citibank - Employment Tribunal - 30 July 2020 (updated 17 September 2020)

The Tribunal has ruled that a former trader, who was involved in sharing confidential information in chatrooms with rival banks, was unfairly dismissed on procedural grounds but that compensation should be reduced and re-engagement was not practicable.

Ramchandani claimed that he was unfairly dismissed from his role as Managing Director and Head of European Foreign Exchange Trading without following a fair process and sought re-engagement. The Respondent, Citibank, alleged that he was dismissed for gross misconduct for sharing confidential trading information during conversations in chatrooms with other currency dealers at rival banks. This led to adverse publicity and regulatory investigations. The claim was subject to a lengthy stay due to ongoing criminal proceedings in the US, of which the Claimant was ultimately acquitted. There was also an ongoing regulatory investigation by the FCA and the Claimant was dismissed before any conclusion was reached.

The Tribunal accepted that the reason for his dismissal was fair, namely his conduct, but ruled that he was unfairly dismissed on procedural grounds. However, it was satisfied that even if the Respondent had followed the correct procedure, the Claimant would have been dismissed anyway due to multiple acts of misconduct in the chats, which it described as "foolish, blameworthy behaviour". Due to this behaviour, the Judge considered it just and equitable to reduce his basic and compensatory award by 75%, but with an uplift of 25% due to the Respondent's failure to follow the Acas Code. Re-engagement was not practicable due to the collapse of trust and confidence and because the Respondent could not in good conscience certify him under the SMCR.

Unfair dismissal: teacher suspected of having indecent images of children unfairly dismissed

K v L - Employment Appeal Tribunal (Lord Summers) - Published 01 September 2020

The EAT has ruled that a teacher, who was charged with possession of indecent images of children but not prosecuted, was unfairly dismissed.

The Claimant, a teacher, was charged by the Police after discovering indecent images on a computer at his home. However, in the absence of sufficient evidence to show that he was responsible for downloading those images, he was not prosecuted. The Claimant denied responsibility. The School sought to obtain information from the Crown but it was too heavily redacted to be of use. Nonetheless, the School proceeded with disciplinary action and the teacher was dismissed, even though it could not uphold the allegation that he had downloaded the images. The Claimant claimed unfair dismissal, which was rejected by the Tribunal. He appealed.

Allowing his appeal, the EAT held that the dismissal was unfair. First, the Respondent's letter inviting him to a disciplinary hearing was based solely on misconduct and failed to give the Claimant notice of the ground of reputational damage, so he was not given the opportunity to address it. In any event, the evidence was insufficient to support a dismissal based on reputational damage. Second, it was unreasonable to dismiss on the basis that misconduct was a possibility: the employer must be satisfied that there was substantial evidence in support of the conduct. The decision will be undoubtedly concerning to schools, care businesses and parents alike but is a reminder of the importance of getting the process and documents right.

Interim relief: employee granted interim relief where dismissal likely due to union membership

Morales v Premier Fruits (Covent Garden) Ltd - Employment Tribunal - 12 August 2020

In one of the first Covid-related claims, the Tribunal has granted interim relief to an employee who was likely to establish that the reason for his dismissal was his trade union membership.

In limited circumstances, where an employee claims automatic unfair dismissal, the Tribunal can order "interim relief" preserving employment until the case is determined. In this case, the Claimant was employed by Premier Fruits, a supplier of fruit and veg. As the pandemic hit in March 2020, the Claimant was asked to take a 25% pay cut and one week's unpaid leave per month. In May 2020, the Claimant's trade union lodged a grievance on his behalf alleging that the pay cut had caused him detriment and that the health and safety of staff was endangered due to a lack of PPE. At a subsequent internal meeting, a manager was recorded showing hostility to the union, commenting "I will not be dictated to by a union" and "if they are not careful they will ruin this country". At the end of the grievance process, the Claimant was dismissed for refusing to consent to the pay cut. He brought claims for automatic unfair dismissal and applied for interim relief.

The Tribunal granted his application for interim relief and made an order for reinstatement on the basis that it was likely that the Claimant was able to show that he was dismissed because he sought the help of his trade union to bring his grievance. It relied upon the recorded evidence from the internal meeting demonstrating clear hostility towards the union, as well as the fact that the employee who recorded the meeting was dismissed very shortly after. However, the Tribunal refused to order interim relief on the basis that his whistleblowing claim relating to lack of PPE was likely to succeed. The case will proceed to a full hearing. The case is likely to be the first of many where the Tribunal considers an employer's response to the pandemic.

For more key employment law updates from us:

• read our Insights on key developments over the last month
• review all our Employment Insights over the last six months
• 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.