We explore the most significant employment law cases in 2023, and their impact on employers, as well as highlight the cases to watch out for in the coming months.
In this article, we’ll cover the following:
- Backdated holiday pay claims
- Refusal to attend work due to COVID-19 safety concerns
- Menopause and disability discrimination
- Defamatory employment references
- A decision-makers’ presence at the disciplinary hearing
- Cases to look out for in the coming months
Backdated holiday pay claims
In Chief Constable of Northern Ireland Police v Agnew, tribunal claims were lodged by 3000 employees of the Police Service of Northern Ireland (PSNI). The claims related to the incorrect calculation of holiday pay using a ‘basic pay’ formula rather than ‘normal pay’, i.e., not including overtime. The PSNI accepted that the employees had been underpaid but disputed the period for which the employees were entitled to recover payment. After the tribunal upheld the claims, the PSNI appealed to the Northern Ireland Court of Appeal (NICA) and subsequently to the Supreme Court.
The Supreme Court unanimously dismissed the appeal, confirming that the relevant law was intended to protect vulnerable workers from underpayment. They affirmed the decision of NICA, stating that neither a gap of more than 3 months between unlawful deductions, nor a lawful payment, would automatically break a series of deductions. In their summary, the Supreme Court noted: ‘What constitutes a series [of deductions] is a question of fact that must be answered in light of all the relevant circumstances’. In this case, ‘each unlawful underpayment was linked by the common fault that holiday pay had been calculated by reference to basic pay only’.
Key takeaways
The Supreme Court decision is binding on the whole of the UK. This means workers can now lodge a claim for ‘linked underpayments’ even if there is a lawful payment or a gap of more than 3 months between them. This has the potential to significantly increase the financial exposure of businesses who incorrectly pay their workers. However, in Great Britain (but not Northern Ireland), there remains a two-year backstop which applies to unlawful deduction claims, so workers may only claim for losses dating back two years from the date of their claim. The case highlights how important it is for employers to check that holiday pay calculations are accurate and that they ensure they are paying their employees correctly.
The government also consulted on changes to holiday pay calculations for part-year and irregular hours workers this year. As a result, we’re expecting changes to be implemented from January 2024 in respect of rolled up holiday pay. Read our How to Calculate Holiday Pay Guide for further details.
Refusal to attend work due to COVID-19 safety concerns
In Rodgers v Leeds Laser Cutting Ltd, an employee was dismissed following their refusal to return to work due to COVID-19 safety concerns.
Shortly after the initial lockdown was announced, Leeds Laser Cutting conducted a risk assessment and subsequently introduced several safety measures to enable the company to remain operational. Rodgers was employed as a laser cutter, a role that could not be performed from home. Rodgers remained at work initially but on 29th March 2020, Rodgers sent a text to his employer to say that he would be staying away from work until the lockdown eased because he was worried about the risk of infection for his vulnerable children. Rodgers was dismissed a month later.
As Rodgers didn’t have two years’ service, he was unable to bring a claim of ordinary unfair dismissal. Instead, he brought a claim of automatic unfair dismissal under s.100(1) of the Employment Relations Act 1996. S.100(1) states that an employee is unfairly dismissed if the reason for the dismissal is that they have left work or refused to return to work when there were ‘circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert’.
The Employment Tribunal dismissed the claim. While the tribunal accepted that Rodgers had general concerns about safety during the pandemic, he failed to establish a reasonable belief in a serious and imminent workplace danger. Furthermore, he had not taken any steps to try to avert the danger, such as discussing his concerns with his manager. The tribunal also considered the measures Leeds Laser Cutting had implemented to reduce the risk of infection, such as staggered start times, social distancing and face masks. Rodgers’ evidence was described as ‘confusing’ and ‘contradictory’. It was noted that he had left home during a period of self-isolation, failed to wear a face mask, and had also worked in a pub during the pandemic.
Roger’s appeal was dismissed by both the Employment Appeal Tribunal and the Court of Appeal.
Key takeaways
Whether or not we experience another pandemic, this case remains relevant for employers who dismiss an employee who refuses to attend work on health and safety grounds. While the case will make it challenging for a claimant to establish a ‘serious and imminent’ danger, it does reiterate the value of taking health and safety concerns seriously, conducting risk assessments and putting in place measures to mitigate any dangers.
Menopause and disability discrimination
In Lynskey v Direct Line, an employee suffering from menopausal symptoms was discriminated against after their employer failed to make reasonable adjustments.
Lynskey was employed as a Telesales Consultant with Direct Line and during the first few years of her employment, she received positive performance ratings each year. But in 2019, Lynskey started suffering from menopausal symptoms, including anxiety, low mood, poor memory and difficulty concentrating, which impacted her work performance. Lynskey discussed this with her line manager, who put in place weekly coaching sessions and it was agreed that Lynskey would transfer into a different role with less pressure.
Lynskey struggled to meet performance targets in her new role and her performance was assessed as ‘need for improvement’. As a result she did not receive an annual pay rise.
In April 2021, a performance management process commenced and Lynskey received a disciplinary warning. She was signed off work with stress during the process. Lynskey was referred to occupational health in August 2011, who advised that she was likely to be considered disabled under the Equality Act 2010. Her entitlement to discretionary company sick pay was withdrawn, although this decision was subsequently overturned following a grievance process.
On 3 May 2022, Lynskey resigned. She brought multiple employment tribunal claims and was successful in her claims of a failure to make reasonable adjustments and discrimination arising from disability.
The tribunal held that Direct Line treated Lynskey unfavorably when her performance was assessed without giving consideration to her disability or making reasonable adjustments. The tribunal stated that a referral to occupational health should have been made as soon as Lynskey made her manager aware of her menopausal symptoms and the impact on her work. The tribunal also found that Direct Line could have made a number of different reasonable adjustments which would have supported Lynskey’s performance, such as reducing performance targets, considering a transfer to a non-telephony role or abandoning the disciplinary process.
Lynskey was awarded £64,645, including a highly unusual award of £2,500 for aggravated damages.
Key takeaways
This case acts as a reminder that menopausal symptoms can amount to a disability under the Equality Act. As with any other disability, employers are duty bound to make reasonable adjustments for disabled employees and to ensure they are not subjected to unfavourable or less favourable treatment. As soon as a business becomes aware that an employee is experiencing menopausal symptoms which are impacting them in work, the employee should be referred to occupational health who will advise on appropriate reasonable adjustments. The case also highlights the risks involved in commencing a performance management process with a disabled employee and we advise employers to seek expert advice before proceeding.
Defamatory employment references
In Smith v Surridge and Others, a school provided employment references which were found to be defamatory.
Two teachers, who had been employed at the same school, received conditional offers of employment at a new school. Their previous employer provided references which stated that there had been ‘some safeguarding issues’. The job offers were withdrawn, and the two teachers issued claims for libel, misuse of private information and negligent misstatement. The teachers argued that the wording of the references implied that they had abused or maltreated pupils, which they denied was the case. The school responded to say that the references should be viewed in the context of a series of emails regarding the references, and that the language reflected the wording in the original reference request.
The High Court held that the hypothetical reader would have taken the reference at face value, and that the words used implied that the teachers had done something that gave rise to a safeguarding issue, i.e. either caused harm to a child or placed a child at risk of harm. It therefore concluded that the references were defamatory.
Key takeaways
Many employers provide basic information only, such as employment dates and job title. However, schools and colleges are required to reference any safeguarding concerns and whether the employee has been subjected to a formal capability procedure. It’s essential that, when providing a detailed reference (and not just employment dates and job title) employers take care to ensure that employment references are true, accurate and fair. References should be factual and objective, rather than misleading, malicious or inaccurate. This includes any information provided verbally; be very wary of providing information ‘off the record’.
A decision-makers’ presence at the disciplinary hearing
In Charalambous v National Bank of Greece, the employee’s dismissal was found to be fair despite the decision-maker not being present during the disciplinary hearing.
Charalambous was employed by the National Bank of Greece as a Relationship Manager. In January 2019, Charalambous sent an email to her Union Representative, her lawyer and her brother attaching a document with highly confidential information relating to clients of the bank. The bank notified the Financial Conduct Authority of the breach of client data, and suspended Charalambous.
Charalambous was then dismissed for gross misconduct. The decision-maker received a full report of the investigation and disciplinary process before reaching a decision but was not present during the disciplinary hearing. Her internal appeal was rejected.
Charalambous brought multiple employment tribunal claims, all of which were dismissed by the Employment Tribunal. She appealed on the grounds that the dismissal had been procedurally unfair.
The Employment Appeal Tribunal (EAT) noted that it is desirable and good practice for a meeting to be held between the employee and the decision maker. However, the EAT held that the absence of such a meeting does not automatically make a dismissal unfair. The EAT commented that the employee had had two disciplinary meetings during which she was given an opportunity to ‘set out her case, comment on the evidence and advance mitigation, all of which was recorded’. The decision-maker had this information in front of them when reaching a decision.
Furthermore, the EAT commented that ‘the process of dismissal must be looked at as a whole, including the appeal process’, and agreed with the view of the tribunal that any imperfections during the first stage of the process were corrected during the appeal. The appeal officer held a meeting in person with Charalambous and ‘took his own independent view of the case, reaching his own conclusion that the circumstances merited dismissal’.
Key takeaways
This decision illustrates the importance of the appeal process in addressing any procedural errors made during the initial stages of the process. It’s worth noting that it remains advisable for decision-makers to be present during disciplinary hearings, and in some cases, this will be expressly required under an employer’s disciplinary procedures.
Employment law cases to look out for in the coming months…
Can an employee be dismissed for bringing frivolous and vexatious grievances?
In Hope v British Medical Association, an employee was dismissed after raising multiple grievances.
Hope was employed as a Senior Policy Advisor with the British Medical Association (BMA). Over a thirteen-month period, Hope raised seven grievances including several grievances alleging that senior managers had failed to invite him to meetings. Hope requested that the grievances be dealt with informally with his line manager, however this failed to resolve the concerns. Hope refused to withdraw his grievances or to progress them to a formal stage.
A grievance hearing was arranged. Hope failed to attend the hearing despite being informed that attendance was a reasonable management instruction. The hearing continued in his absence. Hope’s conduct was found to be frivolous, vexatious and an abuse of process, and Hope was later dismissed.
Hope brought a claim for unfair dismissal. The Employment Tribunal held that the employer had acted fairly in dismissing the employee. Hope’s appeal was dismissed by the Employment Appeal Tribunal. The Court of Appeal is due to hear the case in late 2023.
Do agency workers have the right to apply for internal vacancies?
Under the Agency Workers Regulations 2010, agency workers have the right to be informed of job vacancies. However, in Kocur v Angard Staffing Solutions, the Court of Appeal held that this legislation does not give agency workers the right to apply for internal vacancies. The Supreme Court is due to hear this case in December 2023.
What can we do to help?
We hope you found this article useful. If you would like advice on employment relations, please contact our team on 0330 223 5253 or office@fitzgeraldhr.co.uk. We would be delighted to help you.
