Case law updates

Whistleblowing: The Employment Appeal Tribunal (EAT) has overturned a decision that the manager who made the decision to dismiss the claimant was personally liable for whistleblowing detriment. The decision maker was unaware of the claimant’s protected disclosures, although it was alleged that they had been manipulated by a colleague (who was aware of the disclosures) in the disciplinary process or by that colleague creating a false pretext for dismissal. Whereas the Employment Tribunal (ET) had found the dismissing manager to be personally liable, the EAT disagreed and concluded it was not appropriate to impose liability for a detriment claim on an “innocent” individual. Further, as an individual was not liable, the employer could not be vicariously liable for the detriment claim. This is a separate issue to whether the dismissal was automatically unfair because of the whistleblowing, where liability could attach – this issue has been returned to the ET for further consideration as it had failed to properly consider the allegations of manipulation. (Henderson v. GCRM Ltd and others)

Unfair dismissal – procedural fairness: An employee was fairly dismissed for misconduct, with no procedural unfairness arising from the failure to provide him with transcripts of the investigation interviews, no pre-judgement of the outcome simply because the dismissing officer had a script to follow at the disciplinary meeting, and no unfairness arising from a search of the claimant’s work computer, which he alleged was disproportionate and a breach of his human rights (specifically, his right to respect for private and family life). The claimant was dismissed when he was found to be the author of an anonymous email to a colleague which amounted to harassment, and to have sent a further email which breached confidentiality. While the employee was entitled to sufficient information to understand the allegations against him and to defend himself, this was achieved in this case because the allegations were limited to two emails. The ET found it was not unreasonable or procedurally unfair to have withheld the investigation transcripts from him. Further, although a script had been prepared, this was not evidence of the outcome being pre-determined as on the evidence of the decision maker, the claimant’s representations were considered and there was no presumption of any particular outcome. Also, on the facts, the information obtained from a search of the claimant’s computer was not relied upon to support the decision to dismiss and so even if the search was disproportionate or in breach of human rights, this did not affect the fairness of the dismissal. (Alom v. Financial Conduct Authority)

Unfair dismissal – compensation: Compensation for unfair dismissal includes awarding sums for loss of earnings arising from the dismissal, albeit subject to a statutory maximum and the award being just and equitable. In a recent case, the claimant had been dismissed aged 61, and at the date of the hearing was 63 and working, but in a job earning less than in the role she had been unfairly dismissed from. The ET awarded losses to the age of 65, but this was overturned on appeal – there was evidence that the claimant intended to work until the age of 70 due to her personal and financial circumstances, and whilst there was a chance these intentions may have changed, it was wrong of the ET to apply an earlier cut-off without any principled basis for doing so. With employees working into later life becoming increasingly common, employers should be prepared for lengthier future loss of earnings claims being made. (Davidson v. National Express Ltd)

Unfair dismissal – racial harassment: A claimant was unfairly dismissed when his employer summarily terminated his employment for racial harassment after he repeated the phrase “top of the morning to ya” in a mock Irish accent in front of a colleague and an external visitor. The judge was clear to highlight that this did not mean that using unwanted words with stereotypical racial overtones was appropriate or would never amount to harassment, but on the facts of this case a dismissal was unfair. Whilst the claimant had been involved in blameworthy misconduct, it was wrong to treat the misconduct as racial harassment in the circumstances – there was no suggestion that those present were or were believed to have been Irish, and the claimant was listening to Irish music at the time and found to have been “channelling the musical vibe”, albeit in a way which was goading, annoying, embarrassing, and driven by an intention to get on others’ nerves. Rather, this was a disciplinary matter, but it was not racially motivated and not conduct justifying summary dismissal. It was also relevant that the person investigating the misconduct was not impartial and that the claimant had a lengthy and unblemished employment record with the employer. As the claimant had been involved in blameworthy conduct, his compensation was reduced by 15%. (Davies v. Oscar Mayer Ltd)

Unfair dismissal – illegality: An employee working two full-time cleaning jobs was fairly dismissed from one role because her continued employment placed her in contravention of working time rules on rest breaks. The claimant had not told her employers that she was also working another job, this only becoming apparent when one employer took over the cleaning contract operated by the other employer and the claimant’s employment transferred as a result. There was no question over the claimant’s performance or work ethic, but discussions to rearrange her working pattern to meet legal requirements around working hours and rest breaks had failed. A rare example of where illegality is relied upon as a fair reason for dismissal, the case also highlights how employers should take steps to identify whether workers hold multiple jobs and the impact this may have on working time rules, which are designed for health and safety. (Ogumodede v. Churchill Contract Services)