Case law updates

Unfair dismissal – vaccines: In a case where the employer made vaccination a condition of ongoing employment, a tribunal found that it was fair to dismiss an employee who refused to be vaccinated. Although it was accepted that the employee’s fears and scepticism around the vaccination were genuine, the tribunal did not consider there to be any reasonable basis for her to refuse the vaccine and found that it was a reasonable management instruction to require vaccination to protect the health and safety of residents and visitors in a care home setting. Although not a binding decision, this case will be of interest to organisations considering a vaccine policy in the workplace, albeit the reasonableness of the policy in a specific context and the employee’s reasons for refusal will always be relevant. (Allette v. Scarsdale Grange Nursing Home)

Employer’s duties: The High Court has considered the extent to which an employer has a duty of care to protect employees against criminal conviction during the performance of work duties and whether there is an implied duty requiring an employer to indemnify employees. The claimant was arrested in connection with a transaction he had worked on while working in Romania, and he was subsequently convicted of criminal charges there. After being made redundant, he claimed career loss of earnings against his employer at the time, alleging that the conviction prevented him from working again and claiming that his employer owed him a duty of care to protect him from exposure to criminal convictions at work and to protect him from any resulting losses. While the court accepted that employers have a duty to take reasonable care for the safety of employees and to protect them from consequential financial loss, the overall circumstances in this case were relevant and the duty of case will not arise in every case. It was relevant that, at the time, Romania was not a high-risk country; the transaction was not high risk, nor were there any red flags; and there were no particular circumstances that increased the risk to the claimant. Therefore, while this claim failed, the court left open the possibility for a duty of care to be found, and an indemnity to apply, in different circumstances. (Benyatov v. Credit Suisse Securities (Europe) Ltd)

Employment status: Another gig economy case, this time with the Employment Appeals Tribunal (EAT) upholding a decision that a taxi driver working through the Mytaxi app was not a worker. Although the claimant driver was required to perform personally and there was no right of substitution, how often and at what times he worked were entirely his choice. He was not under any control of the operator, and also worked elsewhere. Overall, the EAT was satisfied that the operator was a client or customer of the driver and that the driver was in business on his own account. After a number of cases finding worker status, this case is a helpful reminder that genuine self-employment can be found in the gig economy. (Johnson v. Transopco UK Ltd)

Tribunal procedure – extensions of time: The EAT has given guidance on when it will be just and equitable to extend the usual time limits for bringing a discrimination claim under the Equality Act 2010, particularly where a grievance has been raised. In this case, the claimants (a husband and wife) brought their claims significantly out of the usual time limits despite being aware of when their claims had arisen and having received legal advice about the time limits (for which there was no suggestion of negligent advice). The claimants had, however, also raised a grievance about their allegations and demonstrated a genuine intention to resolve the issues without resorting to litigation. The tribunal granted an extension of time, prompting the respondents to appeal. The EAT accepted that this was a marginal case but did not consider the tribunal to have unreasonably exercised its discretion to extend time. The EAT held that the raising of a grievance was not, in itself, automatic justification for an extension of time, but in certain circumstances, the mere fact of a grievance having been raised in itself may justify an extension of time. It was relevant in this case that there was no suggestion of any prejudice to the respondent for allowing the claim to proceed - evidence was largely in written form similarly there was no concern over evidence being lost. Although not changing the law in this area, this case acts as a reminder for employers of the wide discretion afforded to tribunals to depart from the usual limitation periods. (Wells Cathedral School v. Souter)

Vicarious liability: Upholding the High Court’s decision, the Court of Appeal has concluded that an employer was not vicariously liable when an employee’s practical joke unintentionally led to a contractor being injured at work. The Court of Appeal considered there to be an insufficient connection between the employee’s actions and his work to impose liability on the employer – the employee’s actions were unauthorised and were not part of an authorised work activity, the equipment ultimately causing the injury was not the employer’s property, and there was no reasonably foreseeable risk of injury. Employers will be reassured by this decision that the courts are willing to place limits on the circumstances in which an employer, find themselves liable for the unauthorised actions of their employees. (Chell v. Tarmac)

Wages: Overturning a tribunal’s judgment, the EAT has been considering the extent to which a claimant could recover underpaid salary in respect of a pay rise for a new and different role with greater responsibility that was agreed in principle (subject to HR approval) but never implemented before employment ended. The claimant had agreed to take on a new role and was told that he could receive a £10,000 pay rise (to £52,000) as a result, subject to approval by HR. The claimant’s predecessor had earned £52,000, and this figure had been assessed as the appropriate salary for the role by an external company, and it was generally accepted as the salary to be paid if recruitment had been external. However, HR did not agree a salary increase to this level. and subsequent pay negotiations did not result in any agreement being reached. When the Claimant’s employment ended he brought a claim for underpaid wages, seeking payment of an increased salary for the new role in which he had been performing. The tribunal held that as the offer of a pay rise was not guaranteed (it was always subject to approval), there was no contractual entitlement to the salary increase. However, in an unusual twist, the tribunal found in favour of the employee based on the legal doctrine of ‘unjust enrichment’ and that the employee could bring a “quantum meruit“ (‘the amount he deserves’) claim to recover unlawful deductions. The appeal turned on the technicalities of whether such a claim could in fact be brought in this way, with the EAT concluding that it was a matter for the civil courts and not the employment tribunal. (Abellio East Midlands Ltd v. Thomas)

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