EmpLaw Newsletter November 2023

Dismissal occurs when it is communicated – even if the communication is in error

A recent Employment tribunal case has proven to be a reminder that dismissal from employment occurs at the point that it is communicated by the employer. In standard cases, a meeting would be held or a letter sent clearly indicating the employer’s recognition that employment is being terminated. But what would the employer’s position be if an employee merely received a P45 in the post?

This is what happened in the case of Mr A Daniel v GE Spence & Sons. In this case, the claimant was off-sick with a back condition following an accident at work. Whilst discussions were ongoing between the claimant and the respondent about a possible return to work and the need to obtain medical evidence regarding the claimant’s capabilities, the respondent sent the claimant his P45 which clearly stated a dismissal date. The respondent claimed that this document had been sent in error and that the claimant had not been dismissed. The tribunal found that the receipt of a P45 by the claimant was an unambiguous dismissal. The tribunal noted that ‘any employee sent a P45 with their name on it would take that as notice of dismissal’. It could not then be unilaterally withdrawn by the respondent without the claimant’s consent, even if given by mistake. In this case, the claimant was awarded compensation of over £26,000 for unfair dismissal – based on a dismissal which the respondent argued had occurred ‘by mistake’.

This case is a reminder to employers of the importance of careful administration when dealing with employee issues. Written communications should only be sent when a clear position has been taken. If accounting is outsourced (as was the case here), then instructions to send important employee documents such as the P45 should only be given after the employer has confirmed dismissal by some other method.

The Strikes (Minimum Service Levels) Bill receives Royal Assent

The Strikes (Minimum Service Levels) Bill (the Strikes Act) has received Royal Assent. The Strikes Act has been introduced to make sure that minimum service levels are maintained during strikes in key sectors in order to “ensure the safety of the public and their access to public services”. The Strikes Act does not extend to industrial action short of a strike.

The Strikes Act allows the Secretary of State to make regulations which set out minimum service levels for strikes in "relevant services". Those relevant services are: health, transport, education, fire and rescue, border control, nuclear decommissioning and radioactive waste management services. The Secretary of State must, however, consult before bringing in any such regulations. Consultations on minimum service levels in relation to ambulance, fire and rescue, and passenger rail services were launched in February 2023 and closed in May 2023. No response to these consultations has yet been published. In October 2023, the government announced proposals to introduce minimum service levels in schools and colleges – hoping to reach a voluntary agreement on this with relevant union leaders.

There are not currently any services where minimum service levels actually apply.  

The way that the Strikes Act would work is that, if a union called a strike to which minimum service levels apply, the employer could, after consultation with the union, give the union a ‘work notice’ which outlines which workers are required to work during the strike and what work is expected of them. The ‘work notice’ must not identify more workers than are 'reasonably necessary’ to meet the minimum service level requirement. If the union then failed to take reasonable steps to ensure compliance with the ‘work notice’, then it could lose its immunity from tort liability in respect of strikes. Any workers who did not work in accordance with the ‘work notice’, could lose the automatic protection from dismissal which generally applies in relation to industrial action. The Government has just carried out a six week consultation on what those reasonable steps may be and has produced a draft Code of Practice that will apply to trade unions given a work notice by the employer. 

The Strikes Act has been controversial from the outset. So much so that The Trades Union Congress (TUC) has recently reported the government to the UN workers' rights watchdog. On the opening day of TUC Congress in Liverpool, General secretary, Paul Nowak, said the union will be lodging a case at the International Labour Organisation (ILO) because the legislation ‘falls far short’ of international legal standards. Labour have confirmed that, if they win the next general election, they will repeal any laws brought in by the current government to restrict the rights of striking workers –although there is no actual manifesto pledge on this yet.

This legislation, and any resultant minimum service level regulations, are likely to continue to court controversy at every turn.

Guidance on the use of anonymised statements in disciplinary investigations

When employers are dealing with misconduct allegations, it's crucial to conduct a thorough investigation. In some cases, witnesses who are interviewed as part of an investigation will ask to remain anonymous. How might this impact on the fairness of any resulting dismissal? If the investigation results in a dismissal, reliance on an anonymous statement could make the dismissal process unfair.

Keeping a witness’s identity secret means the employee being investigated doesn't get all the information. This can lead to unfairness because the employee might want to say that the witness doesn’t like them or has a reason to lie. Without knowing who the witness is, the employee is at a disadvantage.

Witnesses shouldn’t be automatically given anonymity; it should only be an option if they ask for it. If a witness wants to stay anonymous and their reasons are not strong, try to find the information another way, like through CCTV or recording. Using an anonymous statement should be your last resort, only if you really need that witness’s information and can't get it any other way.

If you do decide to keep a witness anonymous, follow the steps outlined in the Linfood Cash & Carry Ltd v Thomson case:

• Get a detailed written statement from the witness, explaining how they saw the incident and why they were there.
• Check if the witness has any issues with the employee or any reason to make up a story.
• Do more investigations to see if you can prove or disprove what the witness said.
• Share the witness's statement with the employee under investigation, but take out any details that could give away who the witness is.

Context is key – tribunal finds that claimant was unfairly dismissed for using racially offensive term during a training session

In the recent case of Borg-Neal v Lloyds Bank Plc, the claimant attended a training session on race education for line managers. He asked a question during the session about how to handle a situation where the ‘N-word’ was used. He did not say ‘the N word’; he used the full word. He was dismissed for gross misconduct. The tribunal held that his dismissal was unfair. It acknowledged that the claimant’s use of language constituted misconduct but found that dismissal did not fall within the band of reasonable responses given the context in which the comment was made and the fact that the claimant immediately and repeatedly apologised for having used the full word.

His claim for discrimination arising from a disability also succeeded. He suffered from dyslexia and this was found to be a disability. He claimed that this condition had caused him to use the full word and prevented him from being able to call to mind an alternative phrase quickly.

This case illustrates the importance of employers looking at all the surrounding circumstances when deciding on the appropriate sanction in a disciplinary context. Employers have the band of reasonable responses to play with but the band is not ‘infinitely wide’. Behaviour needs to be viewed in context and sanctioned accordingly.

Introduction of variable working pattern was indirect sex discrimination but could be justified on the facts

In the case of Dobson v Cumbria Partnership NHS Foundation Trust, the respondent introduced a new working pattern which involved the claimant, a community nurse, working variable days and weekends. The claimant was unable to comply with this new working pattern as she had three children, two of whom were disabled. She was dismissed.

At first instance, the tribunal held that, although the claimant had suffered a disadvantage as a result of the new working pattern because of her own circumstances, she had not shown that women as a group were disadvantaged. The Employment Appeal Tribunal found that the tribunal had been wrong in this analysis and that the tribunal should have considered taking judicial notice of the fact that women, because of their childcare responsibilities, are less likely to be able to accommodate some working patterns than men.

The case was sent back to the tribunal who found that the new working pattern placed the claimant and other women at a disadvantage (taking due judicial notice of the childcare disparity). However, it went on to hold that this discriminatory working pattern could be justified as a proportionate means of achieving a legitimate aim of providing a flexible service and freeing up management time during the week. The claimant’s claim of indirect sex discrimination accordingly failed.

There are two clear points to be taken from this case:

• That the ‘childcare disparity’ is still something which tribunals are able to rely upon and take judicial notice of when considering the impact of policies and practices requiring evening, weekend and/or other flexible working on women.
• That there will be cases where an employer is able to objectively justify adopting working patterns which do have an impact on those with childcare responsibilities. There is no ban on flexibility in the workplace – it is just that an employer has to have a very clear objective in mind and to have considered the other ways in which this objective might be achieved.

Three ways discrimination can occur even where the employee does not have the relevant protected characteristic

Discrimination law in the UK currently recognises nine protected characteristics which it is unlawful to discriminate on the grounds of: age, gender reassignment, being married or in a civil partnership, pregnancy, disability, race, religion or belief, sex and sexual orientation.

It is important to remember that it is possible for an employee to claim discrimination even when they do not have the protected characteristic themselves. This means that discrimination risks are not always easy for employers to spot.

The following situations are worth being aware of:

• Discrimination can occur by perception if an employer believes (mistakenly) that an employee has a certain protected characteristic.
• Employees who do not have a protected characteristic can bring forward claims of victimisation if they believe that they have been unfairly treated by reason of supporting another employee’s complaint of discrimination in some way.
• Discrimination can occur by association. Direct discrimination in this context occurs where a person is treated less favourably because of their association with someone who holds a protected characteristic. Indirect discrimination can also occur by association. For this claim to succeed, an employee would have to show that the employer operated a rule which placed someone associated with a person holding a protected characteristic at a particular disadvantage when compared to someone who was not associated with such a person. The employer would be able to defeat any claim if they could objectively justify why they operated that rule. Discrimination by association most frequently occurs in the context of disability discrimination. 

The case of Follows v Nationwide Building Society is a good example of the risks posed by discrimination by association. In this case, the Respondent operated a provision, criterion or practice of stopping employees from working from home full-time. This placed the claimant (an employee associated with a disabled person as their carer) at a substantial disadvantage when compared to someone who was not associated with a disabled person. The respondent’s policy was not objectively justified. The consequences for the Respondent in this case were significant: a remedy hearing has recently awarded the Claimant over £345,000 in compensation for this and her other claims.

The use of illegality of the employment contract as a defence in tribunal claims

Situations can arise where illegality impacts a contract of employment. Illegality can, in some circumstances, be used as a defence by employers to claims brought by employees. Here are 5 introductory facts about this area:

• There are two common types of illegality in employment. The first is where the employment contract is prohibited by statute (statutory illegality). Any employment contract affected by statutory illegality will be null and void and cannot be relied upon by either party in any legal claims. This is the case regardless of whether the parties knew of the illegality. The second is where a contract of employment is lawfully made, but is illegal in the way in which it is performed (common law illegality). Whether the parties are able to enforce these contracts or bring employment claims relating to them, will depend on various factors including knowledge of the illegality
• Employers are able to claim ‘illegality’ as a defence to tribunal proceedings for claims such as unfair dismissal and discrimination. If the illegality defence succeeds then the claimant will be unable to pursue their claim further.
• In Patel v Mirza, the Supreme Court set out a test to be followed when considering whether a claimant should be allowed to rely on an illegal contract in litigation. The Court formulated what it referred to as the "factors-based approach”. This involves an analysis of various factors such as the public policy against the illegality (that is, the purpose underlying the law that has been broken), any other public policy that might be undermined by denying the claim, and whether denying the claim would be a proportionate response to the illegality.
• Where the claimant is seeking to enforce rights which arise from the employment contract (wages claims and unfair dismissal claims), the illegality defence will succeed (and the claim will not be allowed to progress) if the claimant had sufficient knowledge of, and participation in, the illegality and if the illegality infected the contract. The burden on the employer is lower here than in other employment claims which are not so closely linked to the existence of the contract of employment (for example, discrimination). In these cases, the traditional test requires there to be an inextricable link between the claim and the illegality in order for the illegality defence to succeed.
• Classic areas where the employer should be aware of the possibility of utilising the illegality defence include tax evasion, insider dealing and immigration issues.

When will the chain of causation be broken between an act of whistleblowing detriment and the losses flowing from it?

• When looking at the losses recoverable following a successful detriment claim in any context (be it whistleblowing or discrimination), the tribunal should always assess whether any intervening act has occurred which has broken the chain of causation between the detriment and the loss – with losses being capped at the date that the chain was broken.
•  A recent Employment Appeal Tribunal decision has confirmed that, in order for an intervening act by a third party to break the chain of causation between a whistleblowing detriment and the losses suffered as a consequence, it must become the sole effective cause of the loss, damage or injury suffered, such that the prior wrongdoing is not an effective or contributory cause anymore.
• In McNicholas v Care and Learning Alliance, the claimant was a teacher who made protected disclosures about practices at the respondent’s nursery where she worked. As a consequence of these disclosures, she was subjected to detriments which included a complaint being raised by the respondent to the General Teaching Council of Scotland (GTCS) regarding the claimant’s fitness to teach. The tribunal concluded that the complaint to the GTCS was not made in good faith and was retaliation for the claimant having made protected disclosures. The claimant’s claim for detriment on grounds of whistleblowing accordingly succeeded but the tribunal concluded that when, after the initial referral to the GTCS had been made in bad faith, the GTCS took the decision that further investigation was required. This constituted an ‘intervening act’, meaning that the claimant was unable to claim compensation for future loss or compensation for any period following the GTCS decision to investigate further.
• The EAT disagreed with this conclusion. It held that for something to be an ‘intervening act’, which breaks the chain of causation, it must become the sole effective cause of the loss, damage or injury suffered. This means that any prior wrongdoing, whilst it might still be a 'but for' cause, is to be seen as having been eclipsed therefore not an effective or contributory cause anymore. This was not the situation in this case. The decision made by the third party, the GTCS, to further investigate the allegations was not an independent, supervening cause of loss. Rather, it was a natural and reasonable consequence of the respondent’s wrongful act in referring her in the first place. The wrongful act remained the effective cause of the claimant’s loss.

And finally…

Taking employee monitoring to a whole new level, LBC have reported that a boss in Spain was arrested after a tracker was planted on the car of an employee as part of a long-running row over sick leave. The employee unexpectedly discovered the GPS device, planted on the underside of his vehicle, as he was washing it.

“I got underneath the car and saw that the plastic had been broken and there was this device attached,” LBC reports that the anonymous employee told Spain’s Antena 3 news.

“Nothing like this has ever happened to me before and it creates a lot of insecurity, especially given the reason I was on medical leave…This only makes it worse and heightens anxiety.”

It goes without saying that covert monitoring of employees in this way is never likely to be fair or reasonable. Quite apart from the likely criminal implications, if this incident had occurred in the UK, the employer would be facing potential claims from the employee for harassment on grounds of disability and, if the employee resigned in response to finding the device, a very strong claim for constructive dismissal. Fitting a covert tracking device is highly likely to be a slam-dunk breach of the implied term of mutual trust and confidence in almost every case!