Case law updates

Flexible working: An Employment Tribunal (ET) has accepted an employer’s assessment that a flexible working request to work remotely full time would have a detrimental impact on performance or quality. As a common issue following the pandemic lockdowns, the judgment will be an interesting read for those faced with similar requests, albeit that the ET emphasised that the considerations will always be specific to the factual circumstances. In this case, the claimant’s employer acknowledged that the claimant performed well from home and built effective relationships without face-to-face contact, but considered that full time remote working would have a detrimental impact on, e.g., new joiners; training and supervision; and input and collaboration at management strategy meetings and other in-person events and meetings. The judgment comments on the weaknesses of remote working, and the challenges of technology during fast-paced discussions and where there is a need to observe non-verbal communication, which “simply cannot be achieved in the same way” remotely. (Wilson v. FCA)

Associative disability discrimination and unfair dismissal: The Employment Appeal Tribunal (EAT) has upheld an appeal against a decision that the claimant was neither discriminated against or harassed because of her father’s disability, nor unfairly dismissed when her employment was terminated for ‘some other substantial reason’ for failing to report to her assigned line manager. The claimant had received an oral warning about her performance and failing to adhere to reporting lines, which she did not appeal, and shortly afterwards took time off work to spend time with her family while her father was critically ill. While off work, disciplinary action was started against her, resulting in her dismissal for insubordination. The initial ET found the dismissal to be fair, a decision which the EAT did not find perverse. On the facts, the employer had legitimately reached a conclusion that the claimant was not prepared to abide by reporting structures and there was no indication that this would change. It was not necessary to provide a written warning prior to dismissal; dismissal was within the band of reasonable responses on the facts. This case serves as a useful reminder that an employer can lawfully move to dismiss after only a verbal warning, there being no legal requirement to work up through the warnings in every case prior to terminating. The disability discrimination claims also failed, particularly because those involved in addressing concerns with her performance or who made comments about her arriving at work late or missing deadlines were unaware that her father was seriously unwell. (Sandhu v. Enterprise Rent-a-Car)

Constructive unfair dismissal: The EAT has ordered a rehearing by a new tribunal after the original ET made several errors in considering a constructive unfair dismissal and victimisation claims. Amongst other things, the ET had been wrong in law to conclude that a unilateral demotion was not a breach of an express term of the claimant’s contract, and that an agreement to work longer than the contractual notice period did not necessarily amount to affirmation of the contract. The case also considers the issue of ‘continuing acts’ for discrimination claims. (Humby v. Barts Health NHS Trust)

Privilege: The Court of Appeal has been considering the scope and application of legal professional privilege, concluding that litigation privilege, but not legal advice privilege, was capable of extending to non-parties. The case also establishes that where a prima facie case of inequity is made out, there is no privilege attached to communications or documentation. (Al Sadeq v. Dechert LLP)

Tribunal claims – anonymity: Although the ET has a general power to make an anonymity or restricted reporting order in appropriate circumstances, there is also lifelong statutory anonymity protection for victims of alleged sexual offences contained within the Sexual Offences (Amendment) Act 1992. The EAT has been considering the extent to which this statutory protection applies to ET (and other non-criminal) proceedings, concluding that automatic statutory anonymity is limited to where formal allegations of a sexual offence have been made in the context of potential criminal proceedings. In this case the claimant alleged (amongst other things) sexual harassment and sexual assault on him by a colleague and initiated ET proceedings but did not make formal allegations in a criminal context. He was initially granted statutory anonymity but this was later revoked when the ET found his allegations to be false and made up, a decision which the EAT agreed with. (Z v. Commerzbank AG)

Tribunal claims – strike out: The EAT has overturned a decision by an ET to strike out a claimant’s claim on the basis that the “scandalous, unreasonable and vexatious” way in which he was conducting proceedings rendered a fair trial not possible. The ET had found that the claimant had a vendetta against the respondent and wished to cause as much damage as possible, making threats to those involved. However, on the facts, the EAT concluded that the ET had made assumptions that a fair trial would not be possible in the circumstances. The claim has been remitted to the original ET judge, allegations of bias by the claimant having been dismissed by the EAT. (Hargreaves v. Evolve Housing and Support)

Tribunal claims – unless orders: a common sanction for non-compliance with case management deadlines in ET litigation is for the ET to make an ‘unless order’, with the effect that unless the defaulting party complies with a specific instruction of the ET, their claim or defence will be struck out. In a recent case, the EAT took a strict approach to compliance with unless orders. An order was made that unless the claimant served his witness statement on the respondent’s representatives by a certain date, his claim would be struck out, but whilst he sent his statement to the ET, he did not send it to the respondent’s representatives either directly or in copy. The ET deemed this to be sufficient to have complied with the unless order, but on appeal by the respondents, the EAT disagreed, with the EAT ordering the original ET to dismiss the proceedings for non-compliance. (Elemide v. Bauhaus Educational Services)

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