Frontline UK Employment Law Update Edition 9 2021 - Case Updates
Written By
Partner
UK
I'm a partner in our International HR Services group, which I co-head, based in London. I have more than ten years' experience advising clients on complex employment law issues.
Partner
UK
I am a partner specialising in employment law. I am based in our London office but work as part of the International HR Services team. I work for a wide range of clients, companies and individuals, advising on a wide range of issues and helping them to resolve employment law issues.
Partner
UK
I'm a London-based partner in our International HR Services group and head of our London Employment team.
2.Rooney v Leicester City Council [2021] EA-2020-000070-DA and EA-2021-000256-DA
3.Stuart Delivery Ltd v Augustine [2021] EWCA Civ 1514
5.Secure Care UK Ltd v Mott [2021] EA-2019-000977-AT
6.Lloyd v Google LLC [2021] UKSC 50
1. Carillion Services Ltd (In Compulsory Liquidation) and others v Benson and others [2021] EA-2021-000269-BA - LINK
In this case, the Employment Appeal Tribunal (“EAT”) upheld the Employment Tribunal (“ET”)’s finding that “special circumstances” under section 188(7) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) excusing non-compliance with the statutory obligation to inform and consult on collective redundancies meant “something uncommon or out of the ordinary”, and the circumstances leading up to the employers’ compulsory liquidation did not meet this criterion.
The approximately 1,000 Claimants were employed by the Respondents before they went into liquidation in January 2018 after a period of “serious financial difficulties” that had begun in July 2017. The liquidation has been described as “the largest and most complex insolvency of its kind in UK history.” As a result of the liquidation the Claimants were dismissed on various dates after 15 January 2018. The Respondents did not inform and consult with representatives of the affected employees as required under section 188 TULRCA when 20 or more redundancies are proposed at a single establishment within a 90-day period. In defence to the Claimants’ claims of failure to inform and consult the Respondents relied on section 188(7) TULRCA, which states that where there are “special circumstances” rendering it not reasonably practicable to comply with the duty to inform and consult, the employer must take all steps towards compliance with the requirement to consult as are reasonably practicable in those circumstances.
The ET looked at two questions: were the circumstances relied on by the Respondents special and did those circumstances render it not reasonably practicable to comply with the requirement to consult representatives? The Respondents relied on the events giving rise to the compulsory liquidation as the special circumstances rather than the compulsory liquidation itself. In particular the Respondents relied on the events of the weekend before they went into liquidation, when the key stakeholders of the Respondents chose not to approve short term funding arrangements. The ET held that the events of this weekend were not special circumstances within the meaning of section 188 TULRCA. These events followed a “history of decline” and were not “out of the ordinary”.
The EAT upheld this decision and found that the ET was correct to follow the Court of Appeal case Clarks of Hove Ltd v Bakers’ Union [1978] which held that “special” in this context requires something “uncommon or out of the ordinary”, giving the example of a “sudden disaster”, which the EAT contrasted with the Respondents’ gradual financial decline.
This case has confirmed the applicability of Clarks to the “special circumstances” defence under TULRCA. It emphasises that it is narrow, and full compliance with section 188 of TULRCA is required in all but the most exceptional cases.
2. Rooney v Leicester City Council [2021] EA-2020-000070-DA and EA-2021-000256-DA - LINK
In this case, the Employment Appeal Tribunal (“EAT”) held that the Employment Tribunal (“ET”) had erred in finding that the Claimant was not disabled as a result of her menopause symptoms, and should not have struck out her claims of disability and sex discrimination or dismissed her application to amend the claim. The EAT remitted the case to a different ET.
The Claimant was employed as a childcare social worker by the Respondent and resigned in August 2019. She submitted a claim for for constructive unfair dismissal (amongst other claims). This initial claim form was submitted by solicitors instructed by the Claimant and contained a paragraph stating that she accepted she was not disabled under section 6 of the Equality Act 2010. The next day the Claimant submitted another claim form, this time in person, claiming sex discrimination and disability discrimination due to “severe menopausal symptoms”, describing those symptoms, which were both physical and mental (and included insomnia, confusion, stress, anxiety, palpitations, migraines and hot flushes), in detail. She also applied to amend her first claim form to remove the paragraph stating that she was not disabled on the basis that her solicitors had not been instructed to include this.
The ET, fixed a preliminary hearing to determine whether the constructive unfair dismissal, disability discrimination and sex discrimination claims should be struck out and whether the Claimant was disabled for the purposes of the Equality Act 2010. The ET struck out the claim for sex discrimination on the ground it had no reasonable prospect of success. The ET also held that the Claimant was not disabled. Although the ET stated that the case was interesting and difficult, its judgment was brief and did not appear to go into the issues in the same depth as the ET had at the hearing.
On the issue of disability the EAT found the ET had erred in its finding that the Claimant was not disabled, partly because it had fallen into the “trap” of comparing what the Claimant could and could not do as a result of her health, which prior case law confirms is not permitted. The EAT also noted that the Claimant’s evidence about her health was not questioned and that the ET’s judgment, which found that any impairment was not “long standing”, was inconsistent with that evidence, which showed that her symptoms had started in August 2017 and were ongoing at the time of resignation in October 2018. The EAT also found that the ET had failed to take into account the Claimant’s evidence that the statement in the original claim form, that she was not disabled, had been pleaded without her instructions. The EAT remitted the issue of whether the Claimant was disabled to the ET.
On the strike out appeals the EAT found that the ET had not met the “fundamental requirement to explain to the Claimant why her complaints were struck out” and so allowed these appeals. The EAT also allowed the appeal against the ET’s refusal to permit an amendment to the claim on the basis that the ET had not properly considered the application and so again could not provide reasons for rejecting the application.
As the public conversation about menopause continues, and awareness of its impact on women grows, we are likely to see more cases of sex and/or disability discrimination arising from the treatment of those going through the menopause by their employers and colleagues. It will be interesting to see what recommendations come out of the Women and Equalities Committee’s recent enquiry into the menopause in the workplace, and whether it recommends any changes to legislation to address the issue of discrimination against those experiencing the menopause.
3. Stuart Delivery Ltd v Augustine [2021] EWCA Civ 1514 - LINK
The Court of Appeal (“CA”) upheld the Employment Appeal Tribunal (“EAT”) and the Employment Tribunal’s (“ET”) findings that the Claimant, a courier for the Respondent delivery company, was a worker and not an independent contractor.
The Claimant was a moped courier for the Respondent, which operated an app connecting couriers with delivery jobs. Couriers could undertake discrete deliveries or sign up for time slots, committing to be in a certain geographical area within that timeslot. Signing up to a time slot guaranteed the courier a minimum hourly rate, regardless of how many delivery jobs were available within that time. They could release this slot to other couriers on the app, but if no other driver volunteered to take the slot, the original courier would have to do the job or be penalised.
The Claimant complained that he had been unfairly dismissed and claimed for other entitlements such as notice and holiday pay. He claimed he was either an employee or, failing that, a worker within section 230(3)(b) of the Employment Rights Act 1996 (“ERA”). The ET held that the Claimant was a worker, because he was required to perform work personally and the Respondent was not a client of a business operated by the Claimant, but that he did not meet the higher threshold of employment. Whilst an unfettered right to send a substitute to perform the Claimant’s work would have been fatal to a finding of worker status, the ET found that the right to release a slot to other couriers did not amount to an unfettered right of substitution. The EAT upheld this finding.
The CA dismissed the Respondent’s further appeal, finding that the Claimant did not have an unfettered right of substitution. Releasing time slots back into the pool of couriers was the same as workers swapping shifts, and this contractual right to appoint a substitute was limited in that the substitute could only come from a pool of approved workers. In addition, a courier would not know who had picked up his time slot, and if no one did, he would be obliged to perform the work personally or face negative consequences.
The CA’s judgment sets out useful guidance on applying the principles expressed in the CA’s earlier decision in the case of Pimlico Plumbers. In that case the CA had given various examples of substitution clause and guidance on whether each was consistent with personal performance (and therefore employment / worker status) or not. The CA stressed that these examples should not be treated as exhaustive categories into which which the facts of subsequent cases must be forced. Rather, they expressed general principles and distillations of the previous case law. The overriding issue for an ET to decide is whether an individual is under an obligation personally to perform the work or provide the services. If they are under such an obligation, then this element of the test for worker / employment status is met.
4. Martin v London Borough of Southwark and The Governing Body of Evelina School [2021] EA-2020-000432-JOJ - LINK
In this case, the Employment Appeal Tribunal (“EAT”) allowed an appeal against the Employment Tribunal’s (“ET”) dismissal of the Claimant’s complaint that he had been subjected to detriment due to whistleblowing.
The Claimant was employed as a teacher at the Respondent school. He raised concerns that teachers, including himself, were working in excess of statutory limits on working hours. The Claimant argued that he had made protected disclosures within the meaning of section 43B of the Employment Rights Act 1996 (“ERA”) and had been subjected to detriment as a result.
Considering section 43B, the ET found that the Claimant had not made any qualifying disclosures. In particular the ET held that an email sent by the Claimant raising that teachers were working in excess of the statutory limits to be “an enquiry rather than a disclosure of information that tends to show that there has been a breach of a legal obligation” and that another email was not a disclosure in the public interest.
On appeal, the EAT found that the ET had applied the wrong legal test when considering whether there had been any protected disclosures. The correct approach is the one detailed in Williams v Michelle Brown AM, which sets out five requirements, all of which must be met for there to be a qualifying disclosure:
i. there is a disclosure of information;
ii. the worker believes disclosure is in the public interest;
iii. that belief is reasonable;
iv. the worker believes that disclosure tends to show one of the matters in s43B(a)-(f), (e.g. the employer is failing to comply with legal obligations); and
v. that belief is reasonable.
Elements (ii) and (iv) involve an assessment of the worker’s own subjective beliefs, and elements (iii) and (v) entail a separate assessment of whether those beliefs are reasonable. Rather than going through each of the five elements systematically, the ET appeared only to have asked the purely objective question of whether the information disclosed by the Claimant tended to show a breach of legal obligation, or whether a disclosure was in the public interest. The ET’s judgment did not address whether the Claimant held a subjective belief that the disclosure tended to show a breach, or a belief that disclosure was in the public interest, nor whether those beliefs, if held, were reasonable.
The EAT also clarified that, simply because the Claimant had put a disclosure in tentative terms, explicitly accepting that he “may be missing something”, this did not necessarily mean that elements (iv) and (v) were not present, i.e. that the Claimant did not reasonably believe that the disclosure tended to demonstrate a breach. Furthermore, the ET had failed to take into account section 43H ERA, which makes it clear there can be a disclosure of information even where the recipient is already aware of the information.
This case illustrates the importance of applying the correct legal test in whistleblowing claims, and that it is the Claimant’s own belief that is key. That belief must be reasonable, but this must be determined separately. In failing to consider each element of the statutory test, the ET had conflated several of the issues to be decided, and had asked the wrong questions.
5.Secure Care UK Ltd v Mott [2021] EA-2019-000977-AT - LINK
In another whistleblowing case, the Employment Appeal Tribunal (“EAT”) overturned the Employment Tribunal’s (“ET”) finding in that the Claimant had been unfairly dismissed on the grounds that he had made protected disclosures.
The Claimant, had made several complaints to the Respondent employer regarding staff shortages, working hours, and lack of sufficient rest breaks, among other issues, arguing that these amounted to a breach of health and safety obligations. The Claimant was subsequently dismissed for redundancy. He complained that his dismissal was automatically unfair pursuant to section 103A Employment Rights Act 1996 (“ERA”), on the basis that he had been selected for redundancy because he had made protected disclosures.
The ET upheld the complaint, finding that three of the Claimant’s nine disclosures amounted to protected disclosures (“PDs”) and that the Claimant’s disclosures had a “material effect” on the Claimant’s selection for redundancy.
The EAT overturned the ET’s finding. The EAT held that the ET had erred in two respects. Firstly, the wrong test had been applied – the correct test to apply in relation to section 103A is whether the PDs were the “sole or principal” reason for dismissal. The “material influence/effect” standard is relevant to determining whether an employee has bene subjected to a detriment due to making a PD but not to unfair dismissal claims. Secondly, the ET had considered the combined impact and effect of all of the Claimant’s nine complaints on the Respondent’s decision, whereas they should have limited their analysis to the three complaints that it had found amounted to PDs.
This case clarifies the correct test to be applied when considering whether an employee has been dismissed due to making a protected disclosure, making an important distinction with the test for determining whether a worker has suffered detriment (short of dismissal) as a result of having made protected disclosures.
6. Lloyd v Google LLC [2021] UKSC 50 - LINK
Following on from its decision in the Morrisons employee data breach case last year and the earlier Vidal-Hall v Google LLC case, the Supreme Court has given further clarity on the handling of class actions in the context of data protection violations which should be of interest to employers.
In Lloyd v Google LLC, the Supreme Court has held that damages should not be available for loss of control of personal data alone (i.e. where there is no claim also for material damage) under the Data Protection Act 1998, and consequently Mr Lloyd’s attempt to bring an opt-out class action against Google (on the basis that all the individuals he claimed to represent had the “same interest” in the case – i.e. they had all suffered loss of control ) has failed. This decision should provide some comfort to employers.
Why should employers care?
Employment commentators had been concerned that, if the Supreme Court found in favour of this new form of damages and class action, this would potentially open the floodgates for more class actions brought against employers. Large scale cybersecurity and employee data breach incidents can involve the compromise of data relating to significant numbers of staff (the Morrisons data breach affected over 100,000 employees); a decision in favour of the claimant in this claim could have significantly increased the risks associated with large-scale staff claims, by making the process for bringing a group action simpler and lowering the bar for compensation in relation to privacy breach claims.
As it stands, would-be class action litigants now face the ongoing challenge of needing to book-build a group (rather than being able to rely on the “representative action” used by Mr Lloyd) and needing to be able to prove individual material or emotional harm in order to secure damages.
