In Brief: Employment Law Update Seminar November 2021

The following employment law update was presented in our free employment law seminar on 3rd November 2021 by Kate Booth.

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Legislation

There is no new employment legislation coming into force in the near future. However, we are keeping an eye on two things:

1. An increased duty to protect employees against harassment, including a possible requirement for employers to self-report any grievances of harassment from staff and how they were resolved. The government has said they intend to introduce this, but it hasn’t been actioned yet. When it does come in, we’re expecting a code of practice and some guidance to help employers understand their obligations.

2. Changes to the right to request flexible working to remove the requirement that staff have to have worked for you for 6 months before they can make a request and to remove the limitation that says they can only make one request per year. This is currently under consultation.

Case Law

During the seminar we covered a large number of cases. These were shared to highlight key learning points for employers. Here are a few of the cases shared.

Unfair Dismissal

Fair Process: W v Leicester City Council

A housing officer (“W”) made advances on his line manager over a period of 6 months, which included him: kissing his fingers and placing them on her hand saying “I know this is unprofessional”; putting his hand on her back and rubbing it; telling a colleague “she’s all mine”; sending her flowers; and, sending personal text messages. 

She complained about him and he was moved to another team and told to stop all communications with her. However, he sent her another text message commenting on her body and reassuring her that she was “wanted”. She put in a grievance and he was dismissed.

The Employment Tribunal concluded that his dismissal was procedurally unfair.

This was because:

•  the Council had failed to carry out a proper investigation because they had not interviewed witnesses gather witness statements;
• the Council had not given W a fair opportunity to respond to the allegations against him because the allegations set out in the disciplinary invite letter were vague and short of detail and they did not allow him enough time to put his side across within the disciplinary hearing;
• there was an unreasonable delay in dealing with his appeal. 

The award of compensation was set at just short of £14,000. However, the compensation was reduced by 75% to reflect the Employment Tribunal’s view that if a fairer procedure had been followed, W would still have been dismissed. This case highlights the importance of carrying out a proper investigation, getting your evidence together and putting the allegations and evidence to the employee. 

We run separate training for supervisors which includes how to conduct an investigation and disciplinary process, and we can also conduct investigations and disciplinary hearings for you.

Fair Process: Moore v Phoenix Product Development Limited

Mr Moore was the CEO of Phoenix Product Development. He stepped down as CEO following a buy out, but he stayed on as a director and employee. 

He had difficulty accepting that he was no longer leading the company and, despite an having an informal meeting with the new CEO and agreeing to make things work, he acted in a combative way, sending aggressive emails with foul and abusive language. He was summoned to a board meeting to discuss the breakdown in relationships and warned that he could be removed from office and dismissed. Despite the warning, he remained confrontational. He was therefore dismissed on the basis of an irretrievable breakdown in relationships. 

He was not offered a right of appeal.

The Employment Tribunal concluded that his dismissal was fair and that Mr Moore was entirely responsible for the breakdown in relations. Importantly, they also confirmed that an appeal would have been pointless and that the lack of an appeal was not enough to make the dismissal unfair. 

The Employment Appeal Tribunal upheld this decision and said that an appeal will normally be part of a fair procedure, but not necessarily so. Here, as the company was small, relations had broken down, and Mr Moor was unrepentant, any appeal would have been futile.

This is a sensible outcome, but we would advise caution on not allowing a right of appeal. The advantage of an appeal is that if there were mistakes made at disciplinary stage, the appeal gives you an opportunity to correct them and also understand what potential claims the employee may make.

Discrimination

Age: Pitcher v University of Oxford and University of Oxford v Ewart

Some employers may recall the days of the Statutory Default Retirement Age, which allowed employers to forcibly retire staff who reached the age of 65 without risk of an unfair dismissal or age discrimination claim (provided the correct procedure was followed). The Statutory Default Retirement Age was challenged by Unison and withdrawn several years ago.

Now, an employer can only retire staff if they have an “Employer Justified Retirement Age” which should be included in an employee’s contract or clear policy documents and requires a strong business case in support of the retirement age. To date, there have been very few cases on Employer Justified Retirement Age and those that we have seen have indicated that it is a difficult thing to get right.

The University of Oxford has an Employer Justified Retirement Age of 67 for academic posts. This was introduced after consultation with unions and with lots of research to support what they were doing, including case studies and data modelling to demonstrate that the retirement age would meet their aims of:

• increasing inter-generational fairness by allowing younger academics more opportunity for career advancement;
• increasing equality and diversity by allowing more women the opportunity for career advancement; 
• enabling better succession planning and avoiding losing key talent by allowing those career advancement opportunities.

Two Professors were forcibly retired and brought claims for unfair dismissal and age discrimination. Professor Pitcher’s claim was unsuccessful, the Employment Tribunal held that his dismissal was fair and non-discriminatory. Professor Ewart’s claim was heard by a different Employment Tribunal who held that his dismissal was unfair and discriminatory. This is an indication that the Employer Justified Retirement Age is hard to get right, including dividing opinion at Tribunal level.

The University appealed and the Employment Appeal Tribunal reviewed both cases. It concluded that the retirement age was reasonable, the reasons for it were good and the research that had been done was convincing. 

This is good news if you were thinking about introducing a compulsory retirement age. However, it is important that you do your research first to justify the retirement age you choose and ensure the best possible outcome.

Disability: D’Silva v Croydon Health Services NHS Trust

Mrs D’Silva was a receptionist in the NHS. She had stress and anxiety. After a restructure, she was required to work in patient pathway support which meant more patient facing work including on the front desk. She was very worried about being patient facing and had long absences from work for various health issues, mostly relating to stress. After a long-term absence review, it was concluded that she had unreasonably high levels of absence and she was dismissed.

Although it was probably fair to conclude that she couldn’t do her role anymore due to the stress it was causing her, the Employment Tribunal held that her dismissal was unfair because the NHS Trust failed to make reasonable adjustments in that they did not go far enough in helping her find a new position. 

If you have someone who can’t do their job anymore, then you have a duty to consider reasonable adjustments – for example can you amend their duties or hours in a way that works for them and you? And, you have a duty to consider whether you can offer them other work – for example do you have any suitable vacancies that you could offer them? You don’t have to create work or create a job for them, but you do have to make reasonable efforts to help them before deciding to dismiss.

Pregnancy: Prosser v Community Gateway Association Ltd

Ms Prosser was sent home from work in March 2020 because she was pregnant and her employer thought her to be vulnerable to COVID based on government guidance at the time. The employer did not clearly explain the reason for her suspension or how long it would last, though to be fair to them at the time the information available about pregnancy and COVID was not clear and they would have had no idea when it would be safe for her to return to work.

Ms Prosser was at home on full pay to mid-April, but her pay stopped at this point. The employer later accepted that they’d made an error in understanding what she was entitled to in terms of pay and again, they were working within a fairly unknown situation at the time.

Before Ms Prosser returned to work, as risk assessment was carried out, which said that Perspex screens should be fitted. Her return to work was delayed while the risk assessment was completed and Perspex screens fitted. On her return to work, she raised a grievance about her suspension saying that the information she’d been given at the point of suspension was not clear and that her suspension went on for too long. Her grievance also included the failure to pay her from mid-April. The employer apologised to her and rectified the arrears of pay for her.

She was not satisfied and brought a claim stating that her suspension and delay in correcting her pay amounted to pregnancy discrimination. 

Her claim failed. The Employment Tribunal held that the employer had complied with UK guidance and taken appropriate action at each stage and so, although communication could have been better, their actions in suspending her were not discriminatory. In relation to her pay, the Employment Tribunal was satisfied that the delay in her pay was down to a mistake and not discriminatory.

This is a good decision as it shows that the Employment Tribunals will take into account where employers were doing their best with the information available to them during those early days of COVID.