Frontline UK Employment Law Update Edition 18 2022 - Case Updates

1. Mogane v Bradford Teaching Hospitals NHS Foundation Trust (10 June 2022/12 October 2022)

2. Charles Melvin Bathgate v Technip UK Limited & Ors (07 October 2022)

3. Morgan v Buckinghamshire Council (28 October 2022)

4. Marangakis v Iceland Foods Limited (2 November 2022) 

1. Mogane v Bradford Teaching Hospitals NHS Foundation Trust (10 June 2022 / 12 October 2022) (LINK)

In this case, the Employment Appeal Tribunal ("EAT") held that consultations during a redundancy process must be held prior to a dismissal decision being made so that the employee has the opportunity to influence the decision.

The Claimant had been employed by the Respondent since 2016 as a band 6 nurse on multiple one-year fixed term contracts. Her most recent contract was set to expire on 1 June 2019. A second band 6 nurse was employed on a fixed-term contract which was set to expire at some point after 1 June 2019.

The Respondent had been running at a loss for a number of years and there was not a guaranteed sustained level of work in the pipeline, therefore the Respondent decided to reduce the number of employees carrying out particular kinds of work. In March 2019, the Claimant was told about the Respondent’s financial situation in a meeting and shortly after that meeting the Respondent decided that the Claimant would be made redundant on the basis that her fixed-term contract was going to expire before the other nurse's. The Respondent did not hold a second meeting with the Claimant until 12 June 2019 (after her contract had been extended). At that meeting, alternative employment for the Claimant was discussed. The process related to finding alternative employment for the Claimant continued until 31 December 2019 when the Claimant's contract expired.

The Claimant claimed unfair dismissal. The EAT held that her dismissal had been unfair because the Respondent had made the decision which resulted in her dismissal, namely that she should be selected for redundancy on the basis that her fixed term contract expired first, before engaging in any consultation with her about this. This effectively rendered any further consultation on the question of dismissal useless, as the decision had already been made.

The EAT quoted multiple authorities in which a redundancy process was held to be unfair on the basis that there had been no meaningful consultation (such that the employee has the chance to change the outcome). Because the Respondent had no valid explanation as to why this step was missed from the process, the EAT upheld the Claimant's claim that she was unfairly dismissed.

This case is an important reminder to employers who are planning to undertake redundancy processes that all consultations must begin before a final decision has been made as to dismissal. Where selection criteria are applied so as to determine who is to be made redundant, and there is no consultation on those criteria / their application, employers run the risk of unfair dismissal claims.

2. Charles Melvin Bathgate v Technip UK Limited & Ors (07 October 2022) (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) clarified the meaning of “particular complaint” in the context of settlement agreements under s.147 of the Equality Act 2010 (the "EA").

The Claimant was employed by the Respondent until 31 January 2017 when his employment was terminated by reason of redundancy.

As part of the redundancy process, the Claimant signed a voluntary redundancy agreement (the “Agreement”) which provided for a payment of enhanced redundancy and notice pay, payable with his final salary. A further sum was stated to be payable in June 2017 and calculated in accordance with a collective agreement (the “Additional Payment”). The collective agreement stated that the Additional Payment would only be paid to employees who had not reached the age of 61. The Agreement included a waiver of claims against the Respondent, including claims of age discrimination under s.120 of the EA, and future claims.

After the Claimant had signed the Agreement, the Respondent decided not to pay the Additional Payment to the Claimant on the basis that he was 61 or over at the time of his dismissal.

The Claimant claimed age discrimination, arguing that the decision not to pay him the Additional Payment amounted to direct and/or indirect age discrimination. The Respondent argued that by signing the Agreement, the Claimant had validly waived all claims against it including claims of age discrimination.

The EAT held that the Claimant could not bring his claim for jurisdictional reasons related to his seafarer status. However, in relation to the waiver issue, the EAT held that the Agreement did not preclude the Claimant from bringing the claim as the condition for a valid settlement agreement under s.147 of the EA (namely that the agreement must relate to the “particular complaint” being settled) was not satisfied as the contract did not relate to a “particular complaint”. Although the Agreement referred to age discrimination, a “particular complaint” must have already arisen between the parties for it to be waived via a settlement agreement. The “particular complaint” here (i.e. the decision not to pay the Claimant the Additional Payment) arose after the Agreement was signed and could not therefore have been validly waived.

This case emphasises the limitations of settlement agreements. Whilst employers will generally be keen to achieve a “clean break” with departing employees, it is important to remember that settlement agreements cannot be used to settle future statutory employment claims which have not arisen at the time the agreement is finalised. This can be a particular issue where the agreement is being signed in advance of an employee’s departure date; in this situation an employer should generally secure a further waiver of claims on or after that date.

3. Morgan v Buckinghamshire Council (28 October 2022) (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) upheld the Employment Tribunal’s (“ET”) finding that the Claimant was not unfairly dismissed, and that the Respondent had reasonably concluded that the Claimant had breached professional boundaries in her role as a social worker. The EAT also dismissed her claim that her dismissal amounted to discrimination because of something arising in consequence of disability under s.15 Equality Act 2010 (the “EA”) (the Claimant had autism spectrum disorder, dyslexia, and other conditions).

The Claimant was a supervising social worker in the Respondent’s fostering team. She was dismissed for her conduct, having given gifts to a child for whom she was responsible without the authority of her manager, and because of the inappropriate content of a case note that she had written. The Claimant claimed that her dismissal was unfair, and amounted to discrimination because of something arising in consequence of her disability. She also claimed disability harassment contrary to s.26 of the EA in relation to a statement made by the appeal officer at the Respondent, that it was a matter of serious concern that the Claimant had chosen to “mask” her autism throughout much of her employment, potentially putting vulnerable children at risk.

The EAT concluded that the Respondent had reasonably formed the view that the Claimant had breached professional boundaries, and that it could not be confident that she would not repeat that conduct if she was not dismissed. The EAT also found that the Respondent reasonably concluded that the Claimant knew that she needed prior authority for the proposed gifts, and that this type of breach was a potentially serious matter for which she could be dismissed. The Claimant argued that the conduct was influenced by her autism spectrum disorder. However, the Respondent’s dismissing officer had not accepted this. The appeal officer had invited the Claimant to agree to an Occupational Health assessment in that regard, which the Claimant declined. The appeal officer had not therefore had the benefit of the Occupational Health assessment report that they would have liked to have had when coming to their decision. Her claim that the dismissal was discrimination because of something arising in consequence of her disability was rejected. The Claimant’s harassment claim was upheld however, on the basis that the Claimant’s view that the appeal officer’s statement violated her dignity was, in all the circumstances, reasonably held.

This case illustrates the need for careful consideration of all circumstances, including any disabilities, when disciplining employees. Medical advice may be needed to determine whether or not the relevant conduct is related to a disability, and if so, any disciplinary action will need to be justified as a proportionate means of achieving a legitimate aim. In this case, the Claimant’s refusal to agree to an Occupational Health assessment meant that her employer was unable to obtain a complete understanding of how (if at all) her conduct arose from her disability; in those circumstances the Respondent acted reasonably in dismissing her. If she had consented to an OH assessment and the resulting report had supported her argument, the outcome of the case may have been different.

4. Marangakis v Iceland Foods Limited (2 November 2022) (LINK)

In Marangakis v Iceland Food Ltd, the Employment Appeal Tribunal ("EAT") confirmed that a dismissal still “vanishes” where an employee persists with an appeal against dismissal which is then successful, even if they no longer seek reinstatement.

The Claimant was dismissed by the Respondent in January 2019 for alleged gross misconduct. She decided to appeal, indicating that she wished to be reinstated. Subsequently, she changed her mind due to her belief that the mutual trust had broken down between the two parties and stated at the appeal hearing, "I don't want to work for [the Respondent], I want apologies and compensation".

Her appeal was successful and the Claimant was reinstated, but she did not in fact return to work. As a result of this, she was then dismissed again in July 2019 for her failure to attend work.

She subsequently brought an unfair dismissal claim in relation to the original dismissal in January 2019. However, applying Folkestone Nursing Home Ltd v Patel [2018] EWCA Civ 1689 the Employment Tribunal held that it had no jurisdiction to hear the claim, as the January 2019 dismissal had “vanished” on the Claimant’s reinstatement to her role following her successful appeal.

The Claimant appealed this decision but the EAT rejected her appeal. It was considered common ground that if an appeal against a dismissal is successful, the parties are bound to treat the dismissal as not having occurred, despite the employee's subjective wishes. The dismissal will still exist only if the employee’s appeal is withdrawn. To determine whether there is a withdrawal from an appeal, the tribunal must construe the employee’s words and actions objectively. It does not necessarily follow that the employee does not want to pursue the appeal if they have expressed their wishes not to return to work.

In reaching its decision, the EAT took into account the fact that the Claimant could have unequivocally stated that she was withdrawing her appeal and she could have ceased to participate in the appeal process. In the circumstances, the tribunal was entitled to conclude that, objectively, the Claimant did not indicate a decision to withdraw from the appeal, so the original dismissal subsequently “vanished” upon the appeal’s success.