Employment Case Round-up for 2019

December 2019

Every year the employment tribunals and courts bring us an array of interesting (some worrying!) decisions and 2019 has not disappointed.

Here’s our employment team’s selection of some of the best of 2019.

We cover the possibility of workers transferring under TUPE (rather than just employees) which could have a huge impact if this decision becomes binding. In discrimination cases, we look at whether vegetarianism can be a ground to claim discrimination, and the consequences of shifting the burden of proof. There is further guidance on the period for which compensation can be awarded in successful disability claims -which can extend beyond when the former employee gets other employment. Also, the importance for tribunals to consider all aspects of the definition of disability and the fact that significant injury to feelings awards can be made when it is a one-off act of discrimination.

We look at the consequences of covert recording in the context of employment law and human rights and also, whether agency workers are entitled to be offered the same number of hours of work as those performed by permanent employees.

Where we have included employment tribunal judgements, this is because they are especially interesting but they do not amount to binding authorities on the EAT or higher appeal courts.

Transfers of Undertakings

1. Does the obligation to keep and produce pay records for transferring employees remain with the transferor (previous employer) in a TUPE transfer?

No: The National Minimum Wage Act 1998 (NMWA) imposes an obligation on employers to keep pay records even after employment has ended. Workers can require their employer to produce pay records if they reasonably believe they may have been paid less than the national minimum wage.

The EAT has said that under a TUPE transfer, employment does not ‘cease’ for the purposes of the NMWA, it continues, but with the transferee and liability to keep pay records transfers from transferor to the transferee. The transferee should be able to insist that pay records are delivered by the transferor as part of the transfer agreement reached. (Mears Homecare Limited v Bradburn and others EAT)

2. Does TUPE 2006 apply to a wider definition of employees (as would be caught by the definition under s.230(3)(b) ERA 1996 and other legislation (such as WTR 1998) and not just traditional employees?

Yes! In this very recent judgement, the Employment Judge has that TUPE applies to ‘workers’ as well as traditional ’employees’.

In Regulation 2 of TUPE, the definition of ’employee’ is “an individual who works for another person whether under a contract of service or apprenticeship or otherwise…” The words ‘or otherwise’ must be taken to add something to the normal definition of ’employee’, and hence covers a wider definition of workers. (Dewhurst v Revisecatch & City Sprint ET, 26 November 2019)

Discrimination Cases

1. Should a tribunal draw adverse inferences from the employer’s failure to put forward any evidence about the comparators?

Yes – but only after the Claimant has shown an arguable (prima facie) case of discrimination and the burden of proof has shifted to the Respondent. In this case, a black postman who applied for many promotions, always unsuccessfully, complained of direct race discrimination. Royal Mail did not produce evidence about the identity or qualifications of the successful candidates nor did the Claimant seek disclosure of any evidence. The Court of Appeal agreed with the tribunal which had found that the Claimant had not produced facts from which discrimination could be inferred (the prima facie case), and the claim therefore failed. (Efobi v Royal Mail Group Ltd CA)

2. Can a complete, non-discriminatory explanation by an employer for an action exclude the possibility of a discrimination claim?

Possibly…. But it may depend on whether the burden of proof has shifted from the Claimant employee to the employer and whether that explanation is in any way tainted by discrimination. The Court of Appeal upheld the Claimant’s appeal, finding that the tribunal had properly assessed the evidence; it had identified the ‘additional factor’ that shifted the burden of proof to the employer- the Claimant had been excluded from work without proper review for a significant period. The employer’s explanation was rejected partly because the grievance pre-dated the capability process and it was possible to see that the reason was tainted by discrimination on the grounds of race. (Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust CA)

3. Where an employer was contractually obliged to provide an employee with long-term disability benefits until his “return to work” did that mean the entitlement would cease once he could take up some kind of paid employment?

No: The Claimant went on sick leave with work-related stress and depression and was dismissed for incapacity. His complaints to the tribunal of unfair dismissal and disability discrimination succeeded.

Assessing remedy, the tribunal held that ‘return to work’ meant a return to the level and type of duties he performed prior to going off sick. (ICTS Limited v Visram EAT)

4. Do one-off acts of discrimination only attract the lowest injury to feeling awards?

No: The EAT stated that any injury to feelings award was fact sensitive, stating that: “the question for the ET must always be what was the particular effect on the individual?” and it rejected the employer’s argument that the tribunal awards were manifestly excessive and injury to feelings should have been limited to the lowest Vento bracket where the Claimant claimed seven acts of racial harassment of which only 1 was upheld, which related to her dismissal. (Base Childrenswear Ltd v Otshudi EAT)

5. if a manager lies in good faith about the reason for dismissal, is that enough to shift the burden of proof?

Yes: The Court of Appeal found that where a manager of the Respondent lied about the real reason for the Claimant’s dismissal, this formed the basis of a prima facie case of discrimination, shifting the burden of proof onto the employer and the Court went on to decide that the employer failed to show that race played no part in the dismissal. The manager may have had a genuine belief that the Claimant stole, but this was based on a stereotypical prejudice held (consciously or otherwise) against black people. (Base Childrenswear Ltd v Otshudi CA)

5. If a tribunal does not address all four parts of the definition of disability in the Equality Act, can the decision stand?

No: in this case the EAT found that the tribunal was in error by assuming that the likely future duration of the Claimant’s impairment would be time-limited – to last less than 12 months – by the Claimant’s dismissal which removed the source of the impairment, his work. (Parnaby v Leicester City Council EAT)

6. Is vegetarianism a protected characteristic capable of amounting to a philosophical belief under the Equality Act 2010?

No: The tribunal accepted that the Claimant was a vegetarian and had a genuine belief in vegetarianism and animal welfare. However, it held that vegetarianism is not capable of amounting to a philosophical belief because: “belief must have a similar status or cogency to religious beliefs. Clearly, having a belief relating to an important aspect of human life or behaviour is not enough in itself for it to have a similar status or cogency to a religious belief.” So the Claimant’s claims of discrimination on the grounds of belief, in this instance, vegetarianism, failed. (Conisbee v Crossley Farms Ltd ET)

Working Time Case

1. Was an agency worker entitled to be offered the same number of hours of work as those performed by a permanent employee?

No: The Agency Workers Regulations 2010 entitle an agency worker to the same conditions of work as a permanent employee, but this does not extend to an entitlement to be offered the same number of hours of work as those performed by a permanent employee. (Kocur v Angard Staffing Solutions Limited CA)

Unfair Dismissal Case

1. Covert meeting recording: Is making a covert recording at work an act of misconduct?

Yes: although in pressing circumstances it may be acceptable and in this case the EAT provided observations on the varied circumstances in which covert recordings could be an act of misconduct.

The purpose for making a covert recording may vary from entrapment, to simply guarding against misrepresentations. An employee might have been told not to record a meeting or might have recorded it without giving thought to the blameworthiness of doing so. Employers ought to consider including covert recordings as gross misconduct in disciplinary rules. (Phoenix House v Stockman EAT)

Whistleblowing & Privacy Cases

1. Whether or not a whistleblowing disclosure is in the public interest, is it enough that the employee has a reasonable belief that it was?

Yes: The EAT considered that the tribunal had erred in its approach concerning whether or not a disclosure was in the public interest (or true), as it had failed to ask whether the Claimant (who brought a claim for unfair dismissal based on having made protected disclosures) had a reasonable belief that her disclosure relating to potential breaches of the Data Protection Act was in the public interest and the case was remitted to the tribunal for reconsideration. (Okwu v Rise Community Action EAT)

2. Did covert surveillance of employees under suspicion of theft breach their Article 8 right to private life?

No: The Grand Chamber has held by a majority of 14 to 3 that no violation of the Article 8 right to respect for private and family life had occurred. The case concerned installation of covert video surveillance in a Spanish supermarket where there was a high level of theft. The surveillance was limited to two weeks and the recordings were confined to a small group of individuals.

Not being informed in advance that they would be recorded did not violate the employees’ Article 8 right to private life. The ECHR held that employees should have a limited expectation of privacy at work on a supermarket floor and found that the employer had taken steps to confine the circulation of the recordings. It agreed with the decision of the Spanish courts that a fair balance had been struck and the intrusion was proportionate. (López Ribalda and others v Spain European Court of Human Rights)

For more information about the featured cases and any other employment support, please contact our employment team:

• Anne Mannix – annem@spencer-west.com
• Fudia Smartt – fudia.smartt@spencer-west.com