Employment Law Case Update – June 2024

This month our employment news has been rolling in from all levels of the courts and tribunals. A claim for personal injury due to workplace suspension and discipline was dismissed by the High Court who also found that legal representation wasn't needed for a regular disciplinary hearing for a trade union. The Court of Appeal dismissed a claim of racial discrimination by contract workers, saying it didn't fit the legal criteria, while the EAT sent back a case about a company's holiday policy during the pandemic, saying it might be unfair to non-British workers. A postal worker's dismissal due to illness should have considered job reassignment options, according to another ruling from the EAT, and further confirmed that future claims can be included in settlement agreements if clearly stated.

• Conduct: Civil claim for personal based on suspension and disciplinary process fails
• Trade Unions: Trade union disciplinary hearing could proceed without legal representation
• Race Discrimination: Contract workers could not bring indirect discrimination pay claim against client
• Discrimination: Employer's pandemic holiday policy was indirectly discriminatory but justification needs to be reconsidered
• Unfair Dismissal: Tribunal should have considered the issue of redeployment as a matter of course
• Settlement of Future Claims: EAT in England and Wales follows Court of Session's decision in Bathgate

Conduct: Civil claim for personal injury based on suspension and disciplinary process fails

In Cavanaugh v Folsana Pressed Sections Ltd [2024] EWHC 1381 (KB), the claimant, who had been dismissed for gross misconduct, was unsuccessful in his claim that the defendant (his former employer) had suspended him without reasonable and proper cause, and that its breaches of duty, contractual and tortious, in suspending him and subjecting him to disciplinary investigation, had caused his psychiatric injury. The High Court held that:

• the defendant had not acted in breach of any contractual or tortious duty to the claimant in suspending the claimant, carrying out an investigation into his treatment of staff, or pursuing disciplinary proceedings against him, in circumstances where another employee had resigned and had raised genuine issues as to the claimant's treatment of him and of other employees;
• the mental health notifications made by the claimant had not put the defendant on notice that further psychiatric injury had been a reasonably foreseeable consequence of its continuation of the investigation and disciplinary process;
• the defendant had made such adjustments to the process as the claimant had requested, and, in any event;
• the alleged breaches had not been the cause of the claimant's losses.

Trade Unions: Trade union disciplinary hearing could proceed without legal representation

In Bhogal v National Education Union (NEU) [2024] EWHC 1295 (Ch) the High Court refused to grant an injunction which the claimant sought, to allow him legal representation at a disciplinary appeal hearing. It held that:

• the NEU disciplinary rules do not permit legal representation at hearings and the claimant had no reasonable prospect of showing otherwise;
• the claimant did have reasonable prospects of showing that where natural justice requires legal representation to be granted, then that will override any contractual provision preventing legal representation (i.e. as a matter of law);
• the claimant did not have reasonable prospects of showing that natural justice required legal representation at his hearing, as this was a fairly ordinary disciplinary case.

In deciding the final issue the court took into account the following facts, based on the decision in R v Home Secretary ex p Tarrant [1985] QB 251:

• the seriousness of the charge;
• whether any points of law were likely to arise;
• the capacity of the claimant to present their own case;
• procedural difficulties;
• the need for reasonable speed in the decision making process;
• the need for fairness between the claimant and other participants.

Race Discrimination: Contract workers could not bring indirect discrimination pay claim against client

In Boohene v The Royal Parks Ltd [2024] EWCA Civ 583 the claimant contract workers, who were predominantly of black or other minority ethnicity, brought a claim in the employment tribunal for indirect racial discrimination purportedly under section 41 of the Equality Act 2010, which is headed 'Contract Workers'. The alleged discrimination consisted of a failure to pay the claimants the London Living Wage, which the respondent paid to its directly employed staff, who were predominantly white. The employment tribunal allowed the claim and the EAT overturned the decision. The claimants appealed to the Court of Appeal.

Dismissing the appeal, the Court of Appeal held that the claim of indirect discrimination had not fallen within the scope of s.41(1) of the Equality Act 2010. The claimants could have no claim against the respondent under s.41 because the treatment which they complained about related to the remuneration payable under their contracts with a third party and had nothing directly to do with the principal-worker relationship.

Discrimination: Employer's pandemic holiday policy was indirectly discriminatory but justification needs to be reconsidered

In NLS Ltd v Zaluski [2024] EAT 86 the respondent had policies that staff were responsible for ensuring that authorised leave factored in any period of quarantine, and that staff must return from holiday on the pre-authorised date, with any failure to do so beyond three days liable to be classed as gross misconduct. The claimant had to travel to Poland following the death of his family and due to various quarantine periods he overstayed his leave and was given a final written warning. The employment tribunal held that the respondent's policy indirectly discriminated against those who, like the claimant, are not British, and was not justified.

The EAT allowed the respondent's appeal in relation to justification. The EAT also found that the tribunal had erred in awarding aggravated damages. Both issues were remitted to a different tribunal.

Unfair Dismissal: Tribunal should have considered the issue of redeployment as a matter of course

In Bugden v Royal Mail Group Ltd [2024] EAT 80, the claimant, who had been dismissed as a result of periods of ill-health absence over a number of years, contended that the employment tribunal should itself have raised the possibility of redeployment both as a potential reasonable adjustment under s.20 of the Equality Act 2010 and in relation to its determination of the fairness of the dismissal under s.98(4) of the Employment Rights Act 1996. This issue had not been argued by the claimant before the employment tribunal and was not referred to in the list of issues.

The EAT held that the tribunal:

• had not erred in failing to raise redeployment as a potential reasonable adjustment with the parties as it was not an issue which 'shouted out' from the material before it, but
• had erred in failing to consider the issue of redeployment, as an alternative to dismissal, when determining the fairness of the dismissal as this was a sufficiently well-established principle that it should have addressed as a matter of course even though it had not been raised by the parties.

Settlement of Future Claims: EAT in England and Wales follows Court of Session's decision in Bathgate

In Clifford v IBM United Kingdom Ltd [2024] EAT 90, the EAT held that:

• future claims can be waived in a settlement agreement so long as appropriately clear language is used; and
• this is the case irrespective of whether it is a 'clean break' end of employment situation or the parties remain in a continuing employment relationship.

The EAT in England and Wales endorsed and followed the Court of Session's decision in Bathgate v Technip Singapore [2024] IRLR 326. At the heart of the decision is the reasoning that the purpose of s.147(3) of the Equality Act 2010, and in particular subparagraph (b), is to prevent an employer being able to use a blanket waiver in relation to which an employee could sign away their rights without appreciating the significance of what they were doing. There are, however, no temporal limitations on what kind of claims can be waived. As such, s.147(3) of the Equality Act 2010 regulates how the parties enter into a statutory settlement agreement, rather than constraining what kinds of claims can be settled.

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