Case law updates

Unfair dismissal – re-engagement: This recent Employment Appeal Tribunal (EAT) case provides a helpful illustration of the circumstances in which a tribunal can order the employer rehire a dismissed employee. Re-engagement is a potential remedy for unfairly dismissed employees, with the rules saying that a tribunal must take the following into account: (i) the wishes of the dismissed employee; (ii) the practicability of re-engagement; and (iii) whether it would be "just” to reinstate the employee if the complainant caused or contributed towards their dismissal. In this case, the employment tribunal (ET) found that the claimant was unfairly dismissed after his employer had failed to carry out a reasonable investigation into alleged sexual misconduct, which was not rectified on appeal, and the claimant sought re-engagement. Before the remedies hearing took place, the employer instructed an external and independent investigation into the allegations which concluded that the alleged misconduct had occurred. The employer then relied on that new investigation report to argue that re-engagement should not be awarded. The employer argued that it had a reasonable belief that the claimant had committed sexual misconduct and that as a result it had lost trust and confidence in the claimant. The employer initially tried to argue that there was contributory fault by the employee, but later withdrew this argument. The ET ordered re-engagement, saying the external investigation was flawed and noting that there was no contributory fault by the employee. The order for re-engagement was overturned on appeal by the EAT, which found that the ET was wrong to think it was obliged to consider the issue of contributory fault in circumstances where this was not part of the ET’s liability determination and where it was not an argument pursued by the respondent. The EAT also found that the ET had wrongly judged the fairness of the external investigation. Instead, the relevant issue was the practicability of re-engagement, and this should have been considered from the respondent’s perspective. The EAT concluded that the findings of the independent report supported the conclusion that re-engagement was not appropriate. (British Council v. Sellers)

Employment tribunal procedure: It is a prerequisite to a claim that the claimant must first contact the Advisory, Conciliation and Arbitration Service (Acas) under the early conciliation (EC) scheme. In this case, the claimant failed to do so, but this was not spotted by the ET or the respondent, and the claim proceeded. When the oversight came to light, the issue arose as to whether the claim could continue. The EAT concluded that it could – following another EAT decision in which it ruled that a claim that is not rejected at the outset for a failure to comply with EC requirements cannot be challenged at a later date as improperly accepted. (Abel Estate Agent v. Reynolds)

Permanent health insurance (PHI): The EAT has been considering a claim for unlawful deduction from wages in circumstances where an employee has been on long-term sickness (and was subsequently dismissed for ill health after around three years’ absence). The employee did not receive any PHI benefits during her employment despite her employer operating such a scheme. The claimant had mistakenly been omitted from the employer’s PHI policy and was successful with her ET claim, it having been found on the facts that she did have a contractual entitlement to PHI benefits for her period of employment. However, once her employment terminated, there was no further entitlement to PHI benefits and therefore no unlawful deductions claim. The EAT upheld the tribunal’s decision, noting that although there is an implied right not to be dismissed for ill health where to do so would deprive the employee of PHI benefits, this was relevant to a claim for wrongful dismissal/breach of contract and not a claim for unpaid wages. The case is a helpful reminder for employers about the challenges around ill health dismissals where a PHI scheme operates and of the importance of the employment contract terms regulating access to such benefits. Employers should take care to ensure the employment contract is clear that access to PHI benefits is subject to the insurer’s acceptance of a claim and the terms of the policy. (McMahon v. AXA ICAS)

Sexual harassment: A non-binding ET decision concluded that an ‘air kiss’ was not unwanted conduct of a sexual nature or, if it were sexual, it was not reasonable for it to have had the purpose or effect of violating the claimant’s dignity or creating a hostile, degrading, humiliating, or offensive environment for her. The decision turned on the credibility of witness evidence. In contrast to the claimant’s inconsistent version of events (which alleged an actual kiss), her colleague was found to be a straightforward and honest witness, and his evidence was preferred. (Chen v. Cut Your Wolf Loose Ltd)

Sex discrimination: A health care support worker was discriminated against on grounds of sex when her employer failed to provide her with a lockable room to express breast milk when she returned to work after maternity leave. Although her level of compensation still needs determining, it will likely be disproportionate to the cost of a lock, noted by the tribunal as being £5.50. (Gibbins v. Cardiff and Vale University Local Health Board)

Unfair dismissal: A claimant was unfairly dismissed for poor performance having not received any prior formal warning during the performance improvement process, contrary to her employer’s policy. The claimant, a social media content creator for a museum, was under scrutiny for her performance for not posting much content, regularly missing deadlines, and content she did produce being full of errors. However, the performance improvement plan put in place to address these concerns was flawed, and the ET concluded that the claimant had a legitimate expectation that her employer’s policy would be followed and that she would have at least one formal warning before dismissal – a helpful reminder that a fair process is a key part of a fair dismissal. (Briggs v. The Trustees of the National Museums of Scotland)

Employment status: In another non-binding decision, an ET has determined that an independent social worker who was placed for work by a recruitment agency via a service company was a worker of the agency and therefore succeeded with an unlawful deduction-from-wages claim in respect of deductions made by the agency for employer National Insurance contributions. Status claims always turn on their specific facts, but in this case, the ET found the reality of the relationship to be that of a worker. The claimant had sent time sheets to the agency rather than invoices, performed personal services on a full-time basis, and was not in business on her own account. (Appiah v. Tripod Partners Ltd)

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