Employment legal update #60 | December 2022

Our Employment & HR team brings its monthly review of new legislation, guidance and case law.

Commentary 

Dismissal fair despite lack of disciplinary policy

The EAT case of Tijani v House of Commons Commission is an example which, while it should not be taken as permission to discard disciplinary policies, demonstrates that is one has a fair reason for the dismissal, the lack of following a disciplinary policy is not always fatal.

This lady was a cleaner who was persistently late and on a final written warning for lateness. Even though there was no evidence that the disciplinary policy had been followed, nonetheless the termination of her employment was found to be fair. The claimant appealed to the EAT but they upheld the tribunal decision.

Early conciliation ACAS certificate number

In Clark and ors v Sainsburys Supermarkets Ltd and anor, the EAT has overturned an employment tribunal decision which rejected the claims of prospective claimants whose names were included on a multiple claim form but whose names did not appear on the early conciliation certificate, even though the EC number was quoted on the form. The EAT held that it was enough for the claim form to contain an early conciliation number of a certificate on which the name of one of the prospective claimants making the joint claim appeared.

No retrospective legal privilege for internal investigation report

In University of Dundee v Chakraborty the EAT has held that legal privilege does not apply retrospectively to protect an original version of an investigation report that did not attract either litigation or legal advice privilege at the time it was created.

The claimant raised a grievance, and an investigating officer was appointed. However, by the time the report was completed, the claimant had issued employment tribunal claims for race discrimination and harassment. Before the report was disclosed to the claimant, the employer requested its external legal advisers to review the report. They suggested some amendments, to which the investigating officer agreed, and she then added her own further changes. When the revised report was disclosed to the claimant during the proceedings and added to the trial bundle, there was a note on the front that it had been amended and reissued following independent legal advice. However, the original version was not disclosed.

The claimant applied for disclosure of the original, but this was resisted by the employer on the basis that it attracted legal privilege. Their concern was that this would result in comparison between the two reports and inferences would be drawn about the legal advice provided. The tribunal disagreed and made the disclosure order; but the employer appealed.

The EAT dismissed the appeal, noting that neither litigation nor legal advice privilege had applied to the original report when it was created, and the employer accepted this. The employer argued that privilege applied retrospectively because of the legal advice subsequently given on the second version of the report. However, the EAT held that the original report did not attract privilege and there was no reason why the subsequent version should do so just because the employer had taken legal advice on its content. Furthermore, the original investigating officer had made additional amendments following the legal advice herself. As such, the original report did not attract privilege and could be disclosed. History does not relate whether there was any comparison between the two and/or any inferences on the legal advice drawn…

Redundancy dismissal without selection criteria consultation unfair

In Mogane v Bradford Teaching Hospitals NHS Foundation Trust and anor, the EAT overturned an employment tribunal decision which had held that the claimant was fairly dismissed for redundancy where the only selection criterion was that her fixed-term contract was due to be renewed before that of her colleague. The EAT held that a proper consultation for redundancy should take place at a time when the employee can still potentially influence the outcome; here, the employer had simply decided that, because her fixed term contract was due for renewal before her, also at-risk colleague, she should be selected without consideration of any other criteria.

The claimant, along with a colleague, was employed on the same band (as a nurse) on a series of fixed term contracts. When the respondent faced financial difficulties, she was invited to a meeting, advised of this, and shortly thereafter was made redundant. The sole reason for selecting her was because her fixed term contract expired before that of her colleague. When she claimed unfair dismissal, the tribunal rejected her claim saying that she had been fairly selected redundancy. She appealed to the EAT, which overturned the decision.

In doing so, the EAT looked at the requirements for consultation. It held that consultation might be meaningful and must be done at a time when the employee has a chance of influencing the outcome. If the only criterion used was one which meant the decision had already been made when the employee was consulted, it was not a fair consultation. Using as a criterion the earlier termination of a fixed term contract compared to her colleague, meant that the employee had no opportunity to influence the decision in her favour. Consequently, the EAT held that the decision to make the claimant redundant was unfair.

Whistleblowing compensation in Jhuti

The whistleblowing case of Jhuti v Royal Mail Group, which went up to the Supreme Court on appeal, has now had a remedies hearing at which substantial compensation was awarded to the claimant for unfair dismissal and detriment.

The claimant was found to have suffered a "lengthy and intense period of bullying" over five months prior to being off sick and then being dismissed. This was found to have caused PTSD, ongoing episodes of severe depression, and the breakdown of her relationship with her young daughter. The medical evidence stated that, due to the combined effect of her illness and the stigma of 6 years unemployment since the dismissal, she would never work again.

The tribunal awarded financial compensation for total career loss to age 67, as well as £55,000 general damages for psychiatric injury, £40,000 for injury to feelings and £12,500 aggravated damages which reflected the respondent's oppressive conduct at the remedies hearing. It also made a 0.5% uplift for unreasonable failure to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures.

Cannot compromise unknown future claims under Equality Act in settlement agreement

A case which will now require careful consideration in the drafting of settlement agreements compromising discrimination claims, has come before the EAT. It is common in settlement agreements to compromise all claims of any description, whether known or unknown at the time of signature. However, following the case of Bathgate v Technip UK Ltd and ors; this will not now be possible.

The EAT analysed the relevant section of the Equality Act 2010, which allows employment discrimination claims to be compromised by way of a settlement agreement that 'relates to the particular complaint'. In doing do, it held that this section does not allow for the settlement of a future claim unknown to the employee at the time the agreement is signed. The EAT considered that Parliament only intended this section to cover complaints that have already arisen between the parties, and not to require the individual to waive future claims which may not have arisen.

The claimant was a seafarer who was made voluntarily redundant, taking enhanced redundancy, notice, and an additional payment calculated by reference to a maritime collective agreement. However, after this additional payment had been offered and accepted, the company decided that they did not need to make it to staff aged 61 or over at the time of dismissal, into which bracket the claimant fell. He was told about this decision a few months after this conclusion, whereupon he brought a claim of direct and/or indirect age discrimination. The employer defended on the basis that the claim was validly compromised by the voluntary redundancy agreement. It also held that the tribunal did not have jurisdiction because of territoriality (not dealt with in detail here).

The employment tribunal held that his claim had been compromised by the settlement agreement which waived all claims, past, present, or whether known or unknown at the time of signed the agreement. It rejected the respondent's assertion that it lacked jurisdiction and treated the claim as post-employment discrimination under the section of the Equality Act which deals with situations where the employment has ended but the act of discrimination arises afterwards and is very closely connected to the employment itself. The claimant appealed against this decision (and the respondent appealed against the jurisdiction point).

The Claimant's appeal was allowed. The EAT observed that, for an agreement to be valid to settle a claim under the Equality Act, it must, among other things, 'relate to the particular complaint'.

In this case, the claimant had entered into an agreement that waived his right to pursue what the tribunal described as a 'long list of claims', including age discrimination claims, and the EAT could not accept that this meant that the 'particular complaint' had been identified. The EAT referred to an excerpt from Hansard that showed that the equivalent provision in the Employment Rights Act was intended to be available only in the context of a particular complaint that has already arisen between the parties. In this case the claimant had signed away his right to sue for age discrimination before he knew whether he had a claim or not, since that claim only arose after signing the agreement. While it may be possible to do this with common law claims, the Equality Act restricts parties' ability to do so in relation to Equality Act rights.

The EAT acknowledged that this interpretation may prove problematic where both parties wish to draw a permanent line under the employment relationship. However, in its view, Parliament did not consider that a settlement of the sort seen in this case was desirable and legislated to prevent it.