Reed Smith Newsletters

Welcome to our monthly newsletter, with a summary of the latest news and developments in UK employment law.

Case law updates

Compensation: The Employment Appeals Tribunal (EAT) has provided a helpful summary for calculating compensation in circumstances where an employer has failed to comply with an order for reinstatement, but where the statutory cap on compensation is relevant. While recognised that an employer should not be better off by failing to reinstate, with legislation providing for the statutory cap to be disapplied in certain circumstances to prevent this, the EAT held that the Employment Tribunal (ET) had been wrong to disapply the cap in this case. The ET had awarded a compensatory award of the amount the claimant would have received if they had been reinstated, which was in excess of the statutory cap of a year’s pay. However, they should have had regard to the overall sum the employer was required to pay, factoring in all elements of the compensation payable. As the aggregated amount of the compensatory award and the award for failure to reinstate was significantly in excess of the statutory cap, it was not necessary to disapply the cap on the compensatory award element. (University of Huddersfield v. Duxbury)

Discrimination – genuine occupational requirements (GOR): There are exceptions to direct discrimination where there is a GOR for a particular protected characteristic, although it is not a straightforward argument and as a recent case demonstrates, the usual principles around acting proportionately in response to a legitimate aim apply. In this case, a male claimant was employed to provide care (including of an intimate nature) to a physically disabled female client. During his probationary period, the client decided she was uncomfortable with him providing care of an intimate nature and, without providing reasons, extended his probation. He later resigned when he discovered the reason and brought a number of claims for discrimination. The ET was unsympathetic to the GOR argument – while the provision of personal and intimate care can be a reason to justify a GOR for an employee of a particular sex, and protection of privacy and dignity is a legitimate aim, the response here was not deemed proportionate. Had the client been more open about her need to build up a relationship of trust before the provision of intimate care, the claimant could have taken steps to address that concern and shifts could have been managed to ensure female carers were available at key times. Although only an ET decision, it is a helpful reminder of the principles. (Donnelley v. PQ)   

Disability discrimination: The definition of ‘disability’ under the Equality Act 2010 (EqA) is well known, but application of the test can often prove tricky for ETs. In this case, the claimant suffered from anxiety, which arose out of issues at work. The various strands of the test were met, except for whether the condition was likely to be long term (i.e., likely to last for at least 12 months). The ET concluded that it was not likely to be long term on the basis that as the claimant’s anxiety had arisen from work, it would not persist long after her employment had terminated. The EAT criticised the weight that the ET had placed on the impact of termination and remitted the question of ‘long term’ to the ET for reconsideration. The case is a helpful reminder that the threshold for establishing the length of an impairment is relatively low and must be assessed at the time of the discriminatory act(s) – in this case, the termination of the claimant’s employment post-dated the acts being complained of. (Morris v. Lauren Richards Ltd)

Indirect discrimination: In overturning an ET decision, a recent EAT decision highlights the importance of identifying the correct pool for comparison in indirect discrimination claims. In this case, the claimants were employed by a third-party contractor engaged by the respondent for cleaning services. Unlike those engaged directly by the respondent, the outsourced workers received less than the London living wage. They brought a claim against the respondent for indirect race discrimination, alleging they were less favourably treated and that contract workers were more likely to be from racial minority groups. Satisfied that the respondent had sufficient control over pay levels to be claimed against, the ET found in the claimant’s favour. However, the EAT allowed the appeal on the basis that the ET had erred in its comparison – instead of comparing the direct workers to the outsourced workers on the cleaning contract, they should have looked at all outsourced workers. (The Royal Parks Ltd v. Boohene and others)

Pregnancy discrimination: A claimant who was purportedly dismissed for poor performance shortly after notifying her line manager of her pregnancy has had her case remitted after the EAT rendered the ET’s finding of discrimination unsafe. The case highlights that simply because one act follows another, it does not necessarily mean that there was a causal link; scrutiny of the particular circumstances is needed, including an analysis of the motivations of the decision-maker(s). In this case, the ultimate decision-maker was the company’s managing director, although the claimant alleged that her line manager influenced that decision. In contrast to recent whistleblowing cases where the motivations of others can be attributed to a decision-maker, liability for discrimination under the EqA only attaches to an employer if the individual who did the act complained of (e.g., a decision to dismiss) was motivated by the protected characteristic (e.g., pregnancy). As such, the ET erred in not properly assessing the decision-maker’s motivations and whether the decision was made jointly, alone or under influence. (Alcedo Orange Ltd v. Ferridge-Gunn)

Redundancy: An employee was unfairly dismissed when her employer failed to consider furlough as an alternative to redundancy during the pandemic. Regardless of whether furlough was necessarily appropriate, the failure to properly consider it as an option was sufficient to render the dismissal unfair. Although the facts of this case relate to furlough, it is nevertheless a useful reminder that employers, acting reasonably, should explore ways to avoid a redundancy dismissal. (Lovingangels Care v. Mhindurwa)

Holiday pay: The EAT has held that a payment in lieu of accrued but untaken holiday on the termination of employment should not equate to less than the worker would have received if that same period had been taken as holiday during employment. In this case, the contact provided for a calculation of holiday in lieu, which was less than the employee would have received if the holiday had been taken. Employers who have a formula for calculating pay in lieu of holiday on termination should be particularly mindful of this case. (Connor v. South Yorkshire Police)

Data protection – EU GDPR: The European Court of Justice (ECJ) has provided its provisional ruling on the meaning of ‘copy’ and the concept of ‘information’ in the context of obligations under the GDPR. The ECJ ruled that the right to obtain a ‘copy’ means providing a faithful and intelligible reproduction of personal data and that ‘information’ relates only to personal data that the data controller is required to provide a copy of. Although not a binding decision in the UK, the decision may still be relevant in the UK. (Österreichische Datenschutzbehörde, Case C-487/21)

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