Case law updates
COVID-19 – automatically unfair dismissal: There has been a further decision by an employment tribunal in favour of a claimant who was dismissed for taking steps to protect themselves or others from a serious and imminent threat to health and safety in the context of COVID-19. The tribunal considered the circumstances in March 2020 to create a reasonable belief of such a threat, and found it was not inappropriate for the claimant to remain in Italy (where he had been on holiday) rather than return to the UK, and from where he was able to work and communicate with his employer and clients. [Montanaro v. Lansafe]
COVID-19 – commission payments: An employee was able to successfully claim unpaid commission after the employment tribunal held that his employer had unlawfully exercised its discretion during the pandemic. Although the tribunal found that the employer had lawfully deferred commission payments for furloughed employees, it found that the decision to withhold commission thereafter was not a rational or good faith exercise of discretion. Although the tribunal’s decision is not binding on other tribunals, the case acts as a useful reminder that the principles around the exercise of discretion remain in place notwithstanding the uncertainties of the pandemic. [Sharma v. Lily Communications]
Discrimination – diversity and inclusion: Two men have succeeded with claims of sex discrimination, with the employment tribunal concluding that their redundancy was motivated by the company seeing them as a significant impediment to improving the company’s poor (45 per cent) gender pay gap, and following their complaints after the company had made statements about the need to “obliterate” the dominance of “white, privileged straight men”. Their unfair dismissal claim also succeeded, although claims of age, race and sexual orientation discrimination, and whistleblowing failed. The decision does not change the law in this area, nor necessarily impact on diversity and inclusion initiatives that companies may want to adopt to improve representation of their workforce, but is a helpful reminder that D&I initiatives, and redundancy exercises, must be handled properly and in line with established legal principles.
For insights into D&I strategy, Reed Smith has prepared a thought leadership report on diversity, equality and inclusion in the corporate world, looking particularly at how strategies have developed and changed in the past year.