Employment Law Alert UK May 2024

Whistleblowing

Decision maker must have knowledge of substance of protected disclosure to establish liability for whistleblowing claim. The EAT has upheld the decision of the ET to dismiss the Claimant's claims of whistleblowing detriment and automatic unfair dismissal on the basis that the employee who took the decision to dismiss the Claimant knew that the Claimant had made disclosures but did not know the substance of those disclosures. The Claimant worked as Vice President of Communications and PR for the Respondent. The Claimant was one of a number of individuals who raised concerns about the President and CEO of the Respondent to two HR consultants. Those consultants later communicated to the CEO that complaints had been made about her management style but did not provide any detail about what the Claimant (and others) had reported. The CEO ultimately took the decision to dismiss the Claimant (although the dismissal was labelled as a redundancy, it appears to have been motivated by a breakdown in the relationship between the Claimant and the CEO). The EAT held that the ET did not err in finding that for the Claimant's claim to succeed, the Respondent's CEO must have had some knowledge of the substance of the disclosures made. Following in the wake of Ling Kong v Gulf International Bank, in which it was held that there can be a distinction between a protected disclosure and the manner in which it was made, and William v Lewisham and Greenwich NHS Trust as discussed below, this case can be added to an employer's armoury, when seeking to draw a distinction between concerns raised by an employee and any action taken in relation to that employee more generally. (Nicol v World Travel and Tourism)

Employment Tribunal correctly interpreted Malik in finding that action taken against Claimant was not influenced by her protected disclosures. The EAT has agreed with the decision of the ET not to uphold the Claimant's whistleblowing detriment claim under section 47B of the Employment Rights Act 1996 in circumstances where the disclosures made by the Claimant did not have a material influence on the decisions taken by the Respondent which were to the Claimant's detriment. The Claimant, a consultant paediatrician, had a difficult relationship with one of her colleagues. Each raised concerns about the other's clinical practice. This culminated in a confrontation between the Claimant and her colleague. In connection with that confrontation the Claimant was suspended, an investigation was carried out and she was given a written warning. The Claimant brought a claim alleging that she had been subjected to detriments for making protected disclosures (she alleged that her colleague's actions endangered the health and safety of patients).  The ET found that the Respondent's actions, were not influenced by the Claimant making alleged protected disclosures, and following Malik v Cenkos Securities plc, if the person making a detrimental decision was unaware of the protected disclosures, it follows that they couldn't have been influenced by them. The Claimant appealed this decision, arguing that Malik was wrongly decided in light of the Supreme Court case of Royal Mail Group Ltd v Jhuti (in which the knowledge of a more senior manager was ascribed to the decision-maker when taking the decision to dismiss Jhuti). However, the EAT dismissed the appeal stating that Malik and Jhuti are not inconsistent with each other, the former dealing with the detriment regime under a section 47B claim and the later the dismissal regime under 103A. (William v Lewisham and Greenwich NHS Trust)

Employee relations

Fair dismissal despite lack of formal warning or appeal process. The EAT has upheld the ET's decision that the Claimant's dismissal was fair, despite the absence of a formal warning or an appeal process. The Claimant, a senior employee, was dismissed by the Respondent due to an irretrievable breakdown in the working relationship. The Claimant argued that his dismissal was unfair as he was not given a written warning or offered an appeal, and the Respondent failed to explore mediation as an alternative to dismissal. The EAT held that the ET was entitled to conclude that this was one of the rare cases where a dismissal may be fair even though there was no formal procedure. The EAT noted that the employer had made significant and genuine efforts to restore the working relationship (including exploring options to change the Claimant's role/team, exploring the possibility of creating a new role for the Claimant with agreed responsibilities and offering mediation), but that the Claimant had not been willing to compromise, instead maintaining a confrontational approach throughout. The EAT stressed that this was an unusual and rare case, but the case may be helpful for employers dealing with an employee who refuses to engage with meaningful attempts to seek to resolve workplace issues. (Guy Matthews v CGI IT UK Ltd)

ACAS published updated Code of Practice on Flexible Working. On 6 April 2024, ACAS published an updated Code of Practice on Requests for flexible working, which provides extensive practical advice on the new flexible working regime. Alongside this ACAS has also published updated guidance on redundancy protection for new parents and updated guidance on carer's leave.

Diversity, Equity & Inclusion

ET failed to acknowledge that burden of proof had shifted to Respondent to disprove allegations of discrimination, but was right to find that no race discrimination had taken place. Although the EAT did not agree with the ET's methodology, it did consider that the ET had comprehensively examined the facts of the Claimant's claim and reached a fair conclusion that she had not been a victim of race discrimination or unfairly dismissed. The Claimant is Algerian and Arab speaking and was employed by the Respondent (an Italian organisation) as a client advisor at Harrods until she was dismissed for systematically abusing the Respondent's sickness absence policy. The Claimant claimed that her dismissal was on account of her race and specifically that the Respondent supported Italian workers on the basis of their nationality and ignored and rejected non-Italian workers. The EAT considered that the Claimant had raised sufficient facts that taken together shifted the burden of proof. These included that management of the Respondent were all Italian, and the timing of the investigation into the Claimant's sickness absence and manner of handling of the Claimant's grievance against her line manager. The EAT held that although the route taken by the ET was "not ideal", the ET had still grappled with the evidence that might have given rise to an inference of race discrimination and therefore were entitled to reach the conclusion which they had done. (Atif v Dolce & Gabbana)

Employer must be proportionate when refusing to make reasonable adjustments. The EAT has upheld the decision of the ET to dismiss the Claimant's claim of failure to make reasonable adjustments. The Claimant worked for the Respondent as a Principal lecturer. From early 2018 he started to suffer from unpredictable blackouts caused by an undiagnosed cardiac impairment. Initially the Claimant was allowed to undertake administrative duties, as no teaching was required outside of term time. When term started the Claimant asked that he not be required to teach large classes / give lectures, that a support worker be appointed to accompany him and for various risk assessments to be carried out. The Respondent considered the Claimant's requests, but ultimately refused to permit the Claimant to return to work whilst he was not able to do face-to-face teaching and whilst his blackouts posed a risk to the University and its students, as well as the Claimant himself. The EAT found that the ET had properly assessed the Claimant's claims and agreed that the adjustments suggested by the Claimant were not reasonable. In contrast, it found that the decision taken by the Respondent to refuse to permit the Claimant to return to work was a proportionate means of achieving a legitimate aim, taking account of the requirement to offer a high level of quality teaching for students and the risks posed by the Claimant's blackouts. Cases in this area turn on their specific facts. In each case it will be important to carry out a detailed consideration of the employee's current role and the practical impact of any condition. (Powell v University of Portsmouth)

Government published updated guidance on managing people with a disability or health condition. On 9 April 2024, the Department for Work and Pensions published updated practical guidance to assist managers with recruiting, managing and developing disabled people. The guidance has been produced with the support of a number of organisations, including ACAS, the Business Disability Forum and the Employer's Network for Equality Inclusion and aims to help managers create an inclusive work environment when employing people with physical and/or mental health conditions. The guidance covers an employer's legal obligations and responsibilities, but also covers practical advice, such as tips on appropriate and inappropriate language and highlighting Scope's "End the Awkward" initiative.

Litigation procedure

Remedy claim struck out where Claimant resisted re-inspection of key evidence. The EAT has upheld the decision of the ET that it was no longer possible to carry out a fair remedy hearing, in circumstances where the Claimant refused to allow re-inspection of key evidence. The Claimant brought partially successful claims of sexual harassment, victimisation and discrimination. Key evidence in connection with these claims included the Claimant's notebook and a recording which she had made. The victimisation claim was remitted for reconsideration and the Respondent asked to re-inspect the notebook and recording. The Claimant refused, and over a year later stated that she had destroyed them at the end of her claim. The EAT upheld the decision of the ET to strike out the remedy claim, finding that the Claimant had either destroyed the evidence when she realised that it would be re-inspected or was lying about doing so. In those circumstances the EAT found that it was both proportionate and appropriate to strike out the remedy claim in the interests of justice. (Kaur v Sun Mark and others)

ET should have looked beyond agreed list of issues to include additional ground of claim. The EAT has held that the ET was wrong to limit the Claimant's claim to those on the agreed list of issues, and instead should also have considered a claim of discriminatory constructive dismissal. The Claimant, an employee of the Respondent's fire and rescue service, resigned following a prolonged period of sickness absence. She subsequently brought a claim, which included various claims of discrimination. Her claim form also included a statement of constructive dismissal due to the Respondent's actions on 1st June 2018, which she labelled as the 'last act of discrimination'. The agreed list of issues between the parties mentioned constructive unfair dismissal, but not discriminatory unfair dismissal. At first instance the ET found that the Claimant had been constructively dismissed but it did not consider whether the dismissal was discriminatory, as it was not one of the agreed issues. This was significant because as a result several allegations could not be considered as a 'continuing act' culminating in dismissal and were deemed out of time. The EAT disagreed with the tribunal's approach, stating that it should have considered the claim of discriminatory constructive dismissal given that it was explicitly included in the Claimant's claim form. The EAT took particular account of the fact that a list of issues is a "useful tool of case management" but should not be elevated to status of a pleading: "that is neither its function nor its purpose." (Z v Y)

Presidents of the Employment Tribunal publish interim Practice Direction. The Presidents of the Employment Tribunal have published an interim Practice Direction on the presentation of responses, which applies from 6 April 2024. Alongside the roll-out of the online digital case management system for employment tribunal claims, the practice direction makes clear that for the time being email can still be used to validly submit a claim response. It is expected that the Presidents of the Employment Tribunal will publish a new Practice Direction around October 2024 from which point all responses will have to be made using the online submission service.

Tribunal Procedure Committee publishes first of a series of consultations on changes to employment tribunal rules of procedure. The TPC has launched the first of a series of consultations in the wake of its new responsibility for the Employment Tribunal Rules. The first consultation, which closes on 26 June 2024 focusses on the transfer of responsibility for tribunal rules from the Department for Business and Trade to the TPC, but it also introduces areas of future reform. In particular, the consultation paper lists a series of proposed changes to be consulted on in due course, which includes the proposal that Case Management Hearings should be held in public, rather than in private. Further detail has not yet been published. We will continue to monitor the progress of proposals for reform in this area.

AI

Government publishes guidance on using AI in recruitment. On 25 March 2024 the Department for Science, Innovation & Technology published guidance on the use of AI in recruitment, which provides a useful framework to help evaluate and risk assess such systems. The guidance recognises that whilst AI tools in recruitment offer much promise in terms of efficiency, scalability and consistency, they pose novel risks, including perpetuating existing biases, digital exclusion and discriminatory job advertising and targeting. Whilst the guidance explicitly does not provide legal advice, it will help clients address two key areas of legal risk arising from AI in recruitment: discrimination and data protection compliance. The guidance suggests a series of practical considerations and "assurance mechanisms" for clients to take during procurement and deployment and outlines the government's regulatory principles namely: (i) safety, security and robustness; (ii) appropriate transparency and explainability; (iii) fairness; (iv) accountability and governance; and (v) contestability and redress.