Employment Law Alert UK – October 2022

Employment Relations processes

• EAT upholds decision that employee fairly dismissed for persistent lateness despite absence of disciplinary policy and procedure in Tribunal bundle. The EAT has upheld the decision of the employment tribunal that, given the number of occasions of lateness the dismissal was fair and that this remained the case even without the disciplinary policy being in evidence. The Claimant worked as a cleaner at the House of Commons. She received a first and then final written warning for lateness. She was late (between two and 30 minutes) a further 43 times before she was dismissed. The Claimant then brought a claim for unfair dismissal. The EAT held that even in the absence of the disciplinary policy, it was reasonable to conclude that given the Claimant had a live final written warning for the same conduct (and she had been told that continued lateness could lead to dismissal), her dismissal for continuing persistent lateness was within the range of reasonable responses. (Tijani v House of Commons Commission)

• ACAS publishes new guidance on suspension at work. On 8 September 2022, ACAS published new guidance on suspension during an investigation at work. The guidance provides a helpful steer on good practice for employers and covers (i) deciding whether to suspend someone; (ii) the process for suspending someone; (iii) supporting an employee's mental health during suspension; and (iv) pay and holiday during suspension.

Litigation Process

• EAT allows extension of time for submission of appeal against default judgment due to CEO’s ADHD and depression. The EAT was persuaded that (on the balance of probabilities) the CEO’s ADHD and depression had a material and substantial impact on the late appeal against judgment in default. In January 2020 the Claimant lodged a claim for unfair dismissal and wrongful dismissal. This claim was served at the Respondent’s registered office on 6 February 2020. The envelope containing the claim was put on the Respondent’s CEO’s desk but, according to the Respondent, was not opened at the time and the Respondent’s offices closed due to the COVID-19 pandemic shortly after. Judgment in default was issued by the Employment Tribunal on 27 April 2020. The case was first brought to the attention of the Respondent’s CEO on 15 May 2020, but he was at that point so distracted by the impact of the COVID pandemic and personal circumstances that he was “in a very dark place” and as a result ignored countless chasers from his solicitors in relation to the submission of the appeal. The appeal was finally submitted at 20:48pm on 8 June 2020 (given that it was sent after 4pm it was deemed served on 9 June and was therefore one day out of time). The EAT, in allowing the appeal to extend time, accepted that the CEO’s ADHD and depression caused him to hyperfocus on other areas and involuntarily fail to engage with his solicitors' communications. Whilst this case is likely to be fairly specific to its facts, it does serve as a reminder of the importance of appropriate arrangements for the receipt of served documents. HHJ Auerbach commented specifically: “It is axiomatic that a limited company may be sent important documents to its registered office, and has a responsibility for ensuring that they come to its attention.” (MTN-1 Ltd v O'Daly)

• Employment Tribunal may consider the merits of a claim when assessing if it is just and equitable to extend time. The EAT has upheld the decision of the ET not to extend time in relation to claims of constructive unfair dismissal and race discrimination. In reaching this conclusion the EAT found that it was legitimate for the ET to have taken account of apparent weaknesses in the Claimant’s claim and to conclude that these were not given disproportionate weight and the Claimant was given a fair opportunity to put her case forward. The Claimant alleged that there had been ‘numerous incidents’ of bullying during her employment leading to her resignation, which took effect in August 2019. She issued a claim on 27 January 2020 seeking to rely on an incident post-employment around 8 October 2019 (the “October incident”), and crucially a letter summarising the outcome of an investigation into the October incident sent on 9 December 2019 (the “December letter”). The ET found that there was no link between the events up to October and the December letter and that the Claimant’s claim in relation to the December letter appeared to be a weak one. The EAT supported that conclusion, finding that the ET had properly and appropriately weighed up the relevant factors (including apparent weaknesses in the Claimant’s case) in reaching its decision. (Kumari v Greater Manchester Mental Health NHS Trust Foundation)

• Grievance investigation report did not retrospectively become privileged as a result of subsequent legal review and issuing of final report. The EAT has ordered disclosure of an original investigation report (it was not privileged at the time it was written); this was despite the fact that disclosure could enable inferences to be drawn about the legal advice subsequently given. The Claimant raised a grievance against his line manager which was investigated by an internal investigator and a report was produced. This report was subsequently reviewed by the Respondent’s legal advisers, and amendments were made by them, after which further amendments were made by the investigator. The final report was disclosed to the Claimant in the context of Employment Tribunal claims of race discrimination and harassment. The Claimant sought disclosure of the original report, which was granted by the Employment Tribunal. The EAT dismissed the Respondent’s appeal against disclosure finding that a document does not become privileged retrospectively just because an incidental consequence of disclosure might allow some inferences to be drawn about the changes made. The EAT noted that in any event, given that the Investigator had also made changes it might be difficult to identify the changes made due to legal advice. This case serves as an important reminder of the potential challenges in managing different versions of reports and documents and the importance of seeking legal advice at an appropriate stage during internal processes. (University of Dundee v Chakraborty)

Diversity & Inclusion

• SRA publishes guidance on sexual misconduct. On 1 September 2022 the Solicitors Regulation Authority (SRA) published guidance on sexual misconduct. The guidance outlines factors which the SRA will take into account when determining whether an incident of alleged sexual misconduct will become a regulatory issue. They include: proximity to practice; seriousness of the conduct; criminality of the conduct; consent; vulnerability; and intoxication. The guidance also includes examples of sexual misconduct in the workplace to illustrate the different factors which can come into play.

• Employee who caught COVID-19 two and a half weeks before dismissal was not disabled at the relevant time. The ET(Scotland) dismissed the Claimant’s disability discrimination claim finding that she was not disabled at the relevant time. The Claimant tested positive for COVID-19 around 11 July 2021. She experienced a range of symptoms including fatigue, shortness of breath and brain fog. She was dismissed from her employment on 27 July 2021. On 12 September her GP diagnosed her with long-covid and deemed her unfit to work. She brought a direct disability discrimination claim. The ET determined that she was not disabled for the purposes of the Equality Act because: (i) she was not diagnosed with long covid until 6 weeks after her dismissal; (ii) at the time of her dismissal she had only had covid for two and a half weeks – so it could not be said to have been long term at the time; and (iii) it could not be said that the risk of developing long covid “could well happen”. The case was specifically distinguished from Burke v Turning Point Scotland (in which the employee suffered symptoms of long-Covid for many months before his dismissal) which we covered in our July alert. (Mrs Gillian Quinn v Sense Scotland)

• Supporting a football club does not amount to a protected philosophical belief. The ET held at a Preliminary Hearing that supporting Glasgow Rangers Football Club “Rangers”, does not amount to a protected philosophical belief under the Equality Act 2010, and therefore could not be relied upon for the purposes of a direct discrimination claim. The Claimant had supported Rangers for 42 years and said that he believed that supporting Rangers was as important to him as attending church was for religious people. The Employment Tribunal found that the Claimant’s belief was genuinely held but that it did not meet any of the other Grainger criteria and was therefore not capable of protection under the Equality Act. The ET drew an important distinction between “support” and a “belief”, finding that the Claimant’s support for Rangers was akin to support for a political party which is not protected under the Equality Act. The Tribunal reasoned that support for a football club is a lifestyle choice rather than a belief in a substantial aspect of human life or a belief which may have larger consequences for humanity as a whole (unlike gender critical beliefs and ethical veganism). The Tribunal was also not persuaded that support for Rangers was worthy of the same respect in a democratic society. (McClung v Doosan Babcock Ltd & ors)

TUPE

• Right to participate in Share Incentive Plan (SIP) transfers under TUPE. The EAT held that rights under a SIP can arise “in connection with” a contract of employment for the purposes of section 4(2)(a) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246). That section provides that “all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee” (our emphasis). On 1 May 2020 the Claimant’s employment transferred from Total Exploration (Total Exploration) and Production UK Ltd to the Respondent. Prior to the transfer the Claimant participated in a SIP operated by Total Exploration. On the Transfer he was made a one-off payment by the Respondent as compensation for the lack of SIP operated by the Respondent post-transfer. The Claimant brought a claim in respect of this. The EAT, upholding the ET decision, held that the Claimant’s participation in the SIP arose in connection with his employment: he agreed to deductions at source from his salary to participate and he was only eligible to participate because he was a Total Exploration employee.To avoid complications arising post-transfer, when such schemes do exist, careful consideration should be given to whether the SIP is entirely separate from the contract of employment, and where this is not clear-cut whether an agreement as to terms of an equivalent scheme should be reached prior to transfer. (Ponticelli UK Ltd v Gallagher)

Other interesting things

• Retained EU Law (Revocation and Reform) Bill 2022-23 introduced to House of Commons. On 22 September 2022 the Retained EU Law Bill received its first reading in the House of Commons. The Bill proposes to abolish retained EU law from UK legislation on 31 December 2023, unless it has been otherwise. The Bill also intends to allow UK courts to depart more easily from retained EU case law and to reverse the priority currently given to retained direct EU legislation over domestic UK legislation passed before the end of the transition period. The date for the second reading of the Bill is yet to be announced.

• Chancellor reverses significant tax cuts in mini-budget. On 23 September 2022 the new Chancellor, Kwasi Kwarteng, formally announced a raft of tax cuts and other measures in a special fiscal announcement. By 3 October 2022 the government had U-turned on plans to remove the 45p rate of income tax for high earners. The medium-term fiscal plan, accompanied by official forecasts, is now expected to be published in October (not 23 November as originally announced). For more details on other announced measures in “The Growth Plan”, see our Insight.

• European Parliament approves directive on adequate minimum wages. On 14 September 2022, with 505 votes in favour to 92 against (and 44 abstentions), the European Parliament approved new legislation on adequate minimum wages in the EU. The directive aims to improve working and living conditions for all workers in the EU by establishing minimum statutory wages and improving access to minimum wage protection. The European Council is expected to formally approve the agreement soon, and member states will then have two years to comply.