Employment law alert UK - September 2021

SOSR dismissal was fair where teacher suspected of possessing indecent images but not yet prosecuted. The Court of Session (Scottish equivalent of the Court of Appeal) has ruled that the dismissal of a teacher who had been charged with, but not prosecuted for possessing indecent images of children could be a dismissal for some other substantial reason (as opposed to misconduct). Although reputational risk was a factor, the main reasons to dismiss were their statutory obligation to protect children and the breakdown of trust and confidence. The decision is helpful where unproven criminal charges are at play. It is also a reminder to set out all potential reasons for dismissal in any disciplinary letter. (L v K).

Email indicating desire to dismiss protected by litigation privilege. The EAT has ruled that an email between an employer and HR consultant which the Tribunal held was covered by litigation privilege did not fall within the “iniquity” exception to privilege, despite containing an indication by the employer of a pre-determined decision to dismiss. The email in question concerned an employee suspended for gross misconduct and said that he would not be returning to work “under any circumstances”. The employer did not seek, and the adviser did not give, advice on how to act unlawfully: this was the "sort of frank instruction that a party may feel able to give in a privileged communication". (Abbeyfield (Maidenhead) Society v Hart). The decision should be treated with some caution given that litigation privilege is only engaged in respect of communications where adversarial proceedings are existing, pending or reasonably contemplated (which would not usually include disciplinary proceedings).

Tribunal was right to conclude that Claimant was not disabled where he suffered bouts of anxiety and depression. The Claimant, who was dismissed on performance grounds, brought claims of disability discrimination on the basis that he was disabled due to suffering bouts of anxiety and depression. The EAT agreed with the Tribunal that he was not disabled at the relevant time. The evidence did not support his claim that his impairment was long term. The employer did not know of any disability: it was relevant that he did not tell colleagues of any alleged impairment. The case is a useful summary of the law in cases of alleged mental impairment, where the question of whether the impairment is "long-term" is in question. (Seccombe v Reed).

SOSR dismissal still fair where employer refused to hear appeal. The Claimant, an inventor of a water-efficient toilet, was the CEO and founder of the Respondent employer. After stepping down, he had difficulty accepting that he was no longer leading the company whilst staying on as director and employee. After a series of incidents, he was dismissed for 'some other substantial reason' due to an irreparable breakdown of relations and was not offered a right of appeal. The EAT upheld the Tribunal's decision that an appeal would have been futile. It said that "although an appeal would normally be part of a fair procedure, that will not invariably be so" and "the circumstances are to be taken into account". (Moore v Phoenix Product Development Ltd). Similarly, the Court of Appeal has since confirmed in Gwynedd Council v Barratt that the absence of an appeal is one of many factors in determining fairness, and not always fatal to an employer’s defence of an unfair dismissal claim.

"Manifestly inappropriate" test applies to final warnings in capability dismissal cases. The EAT ruled that, in a performance (or capability) dismissal case, the Tribunal should only re-evaluate the merits of a final warning where that warning is "manifestly inappropriate" and should otherwise accept its validity. The rule applies in capability cases as well as misconduct cases. The Claimant was dismissed after a final warning for failing to meet performance targets in his project management role. In this case, the Tribunal was entitled to find that the warning was not "manifestly inappropriate" and within the range of reasonable responses. (Fallahi v TWI).

Covid cases consider whether furlough should have been alternative to redundancy. In Mhindurwa v Lovingangels Care Ltd, the Tribunal ruled that an employee who was made redundant in the early months of the pandemic was unfairly dismissed because her employer did not consider furloughing her. However, in Handley v Tatenhill Aviation Ltd, the Tribunal ruled that an employee who was supported under the CJRS (or furlough scheme) was not unfairly dismissed because his employer chose to make him redundant when it could have chosen to furlough him for longer. With the imminent closure of the scheme at the end of September, decisions based on the furlough scheme may diminish. However, we are likely to see more Covid-related decisions, for example, around safety measures and return to office policies, as the pandemic and post-pandemic workplace evolves.

Covid-adjusted right to work checks extended until 5 April 2022. The temporary changes in place allowing right to work checks to be conducted remotely via video call and using scanned copy documents have now been further extended until 5 April 2022, not 31 August 2021 as previously announced. The intention is that these measures will remain in place whilst the Home Office looks to implement a new digital solution for those who cannot currently use the online checking service, including UK and Irish citizens. (Home Office guidance).

Thinktank publishes discussion paper proposing right to disconnect. Autonomy, an independent thinktank, has published a discussion paper proposing a new right to disconnect, which would give workers new protection against unpaid overtime. The paper highlights the issues which have been exacerbated by the pandemic. It draws comparisons with French law and suggests new provisions in the Employment Rights Act 1996 which would mean that workers do not have to take calls or read emails outside of working hours. The right to disconnect is progressing at varying paces across Europe, as well as European level as the EU Parliament considers it should be an EU-wide fundamental right.

ICO consults on new employment practices guidance. The ICO is calling for views to help shape its new employment practices guidance, designed to help employers comply with data protection legislation. The existing detailed guidance, the Employment Practices Code, has not been updated since the Data Protection Act 2018 became law. The new guidance aims to reflect how working life has changed, particularly in relation to remote working and AI. The deadline for responses is 21 October 2021. Separately, the ICO has also launched a public consultation on how organisations can continue to protect personal data when it is transferred outside the UK. (ICO Consultation).

Menopause-related tribunal cases are increasing. According to the latest data, tribunal cases referencing the Claimant's menopause have increased from five cases in 2018, six in 2019 and 16 in 2020. There have been a further 10 in the first half of 2021 alone, suggesting that this year's figure will be higher again. The rise reportedly reflects women feeling empowered to challenge employers who do not understand the impact of menopause and fail to offer support.

EBA publishes guidelines on gender neutral remuneration. The European Banking Authority has issued revised guidelines on sound remuneration policies. Although existing regulation (CRD V) requires remuneration policies to be gender neutral, the new guidelines build on this requirement including guidance on how to monitor policies and suggesting factors which should be taken into account when determining remuneration. The new guidelines apply to EU member states but not expressly to the UK post-Brexit, although we anticipate that UK regulators will adhere to them to some degree. Read more.