Key employment law cases: December 2020

Professional misconduct: Beckwith's misconduct finding overturned by High Court

Ryan Beckwith v Solicitors Regulation Authority - High Court - 27 November 2020

The High Court has reversed the Tribunal's findings that Beckwith breached SRA Principles 2 (integrity) and 6 (maintain public trust in the profession).

Ryan Beckwith, former partner of Freshfields Bruckhaus Deringer, succeeded in his appeal against the Solicitors Disciplinary Tribunal's findings that he had breached SRA Principles 2 and 6 after a "sexual encounter" with a junior colleague in 2016 outside working hours. The High Court held that the Tribunal 'fell into error' by deciding that Beckwith lacked professional integrity; the sexual activity was deemed consensual and he had not exploited his professional status to take unfair advantage of her.

The judgment clarifies the scope of the SRA's reach into the private lives of those it regulates. The decision could have broader implications for other regulated sectors, such as the financial services sector, where the FCA has made clear that non-financial misconduct, as well as financial misconduct, are relevant to its assessment of fitness and propriety of regulated people. In practice, this decision may lead to challenges from individuals in financial services who argue that findings of lack of fitness and propriety and/or COCON breach should be more closely aligned to the rules and to challenge findings in relation to personal conduct which falls outside that category.

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Whistleblowing: appeal dismissed based on aggregated disclosures

Simpson v Cantor Fitzgerald - Court of Appeal - 27 November 2020

The Court of Appeal has confirmed that the Tribunal was right to reject a whistleblowing claim based on 37 separate alleged disclosures. Whilst separate communications can when taken together amount to a protected disclosure, this was not the case here.

The Claimant worked for investment bank, Cantor Fitzgerald (CF), as Managing Director on its Emerging Markets desk. He made numerous allegations regarding their trading practices. His behaviour was viewed by CF as a failure to get on with generating business. In view of behaviour described as "distrustful and obstructive", he was suspended and later dismissed for being "utterly impossible" to work with. The Claimant brought claims for automatic unfair dismissal for having made protected disclosures. In the first instance, the Tribunal concluded that none of the alleged disclosures satisfied the statutory definition and that his motivation to raise these matters was to do with commission payments.

The Claimant appealed on the basis that the Tribunal should have aggregated the disclosures and considered them cumulatively. The EAT dismissed his appeal. The Court of Appeal agreed. Referring to the case of Norbrook Laboratories v Shaw, it was accepted that two communications taken together can amount to a protected disclosure, but whether they do is a question of fact. On the facts, none of the communications amounted to a protected disclosure taken alone or by reference to any previous communication.

Age discrimination: the need to reduce costs to balance books was legitimate aim

Heskett v Secretary of State for Justice - Court of Appeal - 11 November 2020

The Court of Appeal has ruled that the need to reduce expenditure to balance the books can amount to a legitimate aim capable of justifying age discrimination.

The Claimant was a Probation Officer. Due to funding cuts and a pay freeze in the public sector, the probation service introduced a new pay policy, which meant that it would take much longer to reach the top of the salary scale - some 23 years rather than the previous 7 or 8. The Claimant argued that this had a disproportionate impact on younger employees because in the long term he would earn less than the older longer-serving employees, and was therefore indirect age discrimination. He also argued that it could not be justified on the basis of cost alone.

Taking into account previous case law, the Court of Appeal confirmed that discrimination cannot be justified solely in order to save costs. However, cost can be considered alongside other factors, known as the "cost-plus" rule. In this case, where the employer was subject to financial constraints which oblige it to reduce its costs, and specifically its staff costs, in order to balance its books, then that could amount to a legitimate aim. It was also relevant to proportionality that the pay policy was intended to be a temporary measure. The Court said that the label "cost-plus" should be avoided - and that it is better to consider whether the aim is solely to avoid increased costs.

Collective redundancies: reference period for triggering collective consultation is rolling 90 days

UQ v Marclean Technologies SLU - European Court of Justice (Judgment not yet available in English) (AG Opinion)

The ECJ has considered the reference period over which redundancies are counted to determine whether the threshold for collective consultation has been met and ruled that it is a rolling period.

The EU Collective Redundancies Directive (No. 98/59) provides that there is an obligation to carry out collective redundancy consultation where there are a certain number of dismissals over a given period (30 or 90 days). Under UK legislation (s188 TULRCA 1992), collective consultation must take place where 20 or more redundancies are proposed within a 90-day period.

In this Spanish case, an employee claimed unfair dismissal on the basis that she was one of a number of covert redundancies. The national court referred the case to the ECJ. Following the decision of the Advocate-General, the ECJ has ruled that the relevant 30 or 90 day period is a rolling period. In other words, to determine whether collective consultation is triggered, employers must look backwards and forwards to determine whether the threshold has been met.

Where employers find themselves looking to make redundancies in successive batches, careful planning is required to avoid inadvertently exceeding the threshold.

Tribunal procedure: tribunal reconsidered on "its own initiative" following submissions suggesting that it should

Banerjee v Royal Bank of Canada - Employment Appeal Tribunal - 30 October 2020

The EAT has ruled that a party is entitled to ask the Tribunal to reconsider on "its own initiative" where it has failed to apply for reconsideration and any such application would be out of time.

The Claimant was employed by the Bank as a trader, earning significant sums of money. When he was dismissed, he brought a claim for unfair dismissal, and the Tribunal decided to consider liability issues separately from quantum. At the liability hearing, the Tribunal awarded an ACAS uplift of 25% without reference to the monetary consequences of the uplift (which amounted to approx.. £261,000). The Bank did not seek reconsideration within the prescribed period of 14 days (under rule 71 of the ET Rules), although it did indicate an intention to appeal on the basis that the Tribunal has erred in fixing the uplift at 25%. At the remedies hearing, the Tribunal decided that it should reconsider the uplift "on its own initiative" and the Bank therefore withdrew its appeal.

The Claimant appealed against the decision to reconsider the uplift. The EAT dismissed his appeal: the Tribunal was entitled to reconsider the uplift on its own initiative. The fact that the Bank had suggested at the remedies hearing that the Tribunal should reconsider the uplift did not amount to an application for reconsideration under rule 71 and did not preclude the Tribunal from doing so. The matter was remitted to the Tribunal.

Health and safety: protection from health and safety detriment should extend to workers

R (Independent Workers' Union of Great Britain) v Secretary of State for Work and Pensions & anor - High Court - 13 November 2020

The High Court has ruled that the UK failed to properly implement the EU Health and Safety Framework Directive (89/391/EC) in domestic law by limiting protection from detriment on health and safety grounds to employees only and not workers.

At the start of the Covid pandemic, the IWGB received around 140 queries from members about health and safety issues including lack of PPE and failure to implement social distancing at work. Many of its members are gig economy workers who have provided frontline services during the pandemic and have been at increased risk of infection. Under UK legislation (s44 ERA 1996), only employees are protected from suffering health and safety detriment by their employer, including where an employee is absent from work due to a reasonable belief that attending work would put them in serious and imminent danger. The IWGB considered that the UK legislation was inadequate and instigated High Court proceedings against the Secretary of State.

Following an extensive review of case law and legislation, the High Court concluded that the Directive requires protection to extend to all those who fall within the autonomous meaning of "worker" under EU law, which covers any person who performs services for and under the direction of another person in return for remuneration. It must therefore also extend to "workers" as defined in the Employment Rights Act 1996. For the same reason, the Court also concluded that the UK had failed to properly implement the PPE Directive (89/656/EC) by limiting employers' obligations to provide PPE to employees only.

Transgender discrimination: permission to appeal case regarding gender-neutral passports

R (Elan-Cane) v Secretary of State for the Home Department - Supreme Court

The Supreme Court has granted permission to appeal in this case which would require HM Passport Office to issue gender-neutral passports.

The appellant, Christie Elan-Cane, previously challenged the Home Office's policy not to issue non gender-specific passports with an "X" marker (instead of "M" for male or "F" for female) to non-binary or trans persons who do not identify exclusively as male or female. The appellant's previous applications for judicial review were dismissed by both the High Court and the Court of Appeal.

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
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