Case law updates

Employment status: When analysing whether an individual is an employee, it is a well-established principle that the written contractual terms are not determinative and that the issue should be considered holistically whilst also considering the reality of the relationship between the parties. A recent Employment Appeal Tribunal (EAT) decision considered this issue further in circumstances where the claimant (purportedly engaged as an independent contractor) argued that the written terms should not be the starting point for analysis. The EAT provided clarity that the starting point should always be the words of the statute (section 230(1) of the Employment Rights Act 1996) and that in circumstances where there is no dispute that the written contractual terms reflect the intention and reality of the relationship, no further enquiry will be needed. However, where it is alleged that the written terms do not accurately reflect the intention or reality, wider considerations should be looked at. It would be wrong to disregard the written terms completely, but also not wrong for them to have been considered at the outset in the context of a wider analysis of the relationship. (Ter-Berg v. Simply Smile Manor House Ltd)

Flexible working: A recent EAT decision is a helpful reminder that disadvantage or detriment arising from a discriminatory decision cannot necessarily be cured on appeal (although it may impact compensation), acting as a cautionary tale for employers considering and negotiating flexible working requests. In this case, the claimant made a flexible working request while she was on maternity leave. Having previously worked five days on a flexible basis across all seven days of the week, she asked for three fixed days to accommodate childcare. This was rejected, and on appeal, she was initially offered four days a week on a flexible basis. However, following legal intervention, and while she was still off work, her original request was agreed. She subsequently brought an indirect discrimination claim which was rejected by the employment tribunal (ET) on the basis that the provision, criterion or practice (or PCP) (to work flexibly) was never applied. The EAT disagreed with the ET’s analysis, saying that disadvantage or detriment should be considered at the time of the initial rejection, regardless of whether the required working pattern was ever worked. The EAT remitted the claim for reconsideration. (Glover v. Lacoste UK Ltd)

Redundancy: A claimant who brought an age discrimination claim when his redundancy dismissal was rushed through to ensure he was dismissed before he reached age 55 (when he became eligible for an enhanced payment) is having his case reconsidered by a second newly constituted ET after a successful appeal. The EAT held that the original ET had failed to properly consider comparators, and in making a finding that the detriment was a proportionate means of achieving a legitimate aim, the ET had failed to identify that aim or explain its rationale for proportionality. (Cook v. Gentoo Group)

Termination date: In a hearing ultimately looking at whether an ET claim was brought in time, attention was focused on whether a letter sent from the employer marked ‘without prejudice’ and referring to mutual termination on a particular date, with a payment in lieu of notice, was a dismissal letter, with the effective date of termination on the date cited. The EAT, agreeing with the ET, determined that it was, notwithstanding the ‘without prejudice’ label or that the reference to mutual agreement was incorrect. The EAT was satisfied that there was no ambiguity that the claimant’s employment was being summarily terminated and that the ‘without prejudice’ reference was limited to the payment of an additional ex gratia payment if he signed a settlement agreement. The case highlights the importance of clear drafting and the limits of the ‘without prejudice’ rule. (Meaker v. Cyxtera Technology UK)

Tribunal procedure ‒ appeal time limits: The EAT has granted an extension of time in circumstances where there was a delay in receipt of appeal documents because of issues with the email server. The claimant (who was a litigant in person) submitted his appeal half an hour before the deadline, although the documents were not, in fact, received for ten more days. Although the EAT said that there was no good excuse for leaving it so late in the day, the technical issues were not the fault of the claimant and it was not unreasonable for him to assume that in the absence of a ‘bounce back’ or ‘delay’ notification, that his email was sent instantaneously. Further, even if he had submitted the papers well within the deadline, he would still not have known that they had not arrived. Notwithstanding this decision, appellants (or indeed anyone working to any tribunal deadline) should endeavour to leave sufficient time before a deadline to allow for contingencies; leaving things to the eleventh hour is always risky. (Hawkes v. Oxford Economics)

Tribunal procedure – strike out: The EAT has upheld an ETs decision to strike out a claimant’s claim on the basis of his conduct being scandalous, unreasonable or vexatious, rendering a fair trial impossible because of his repeated and prolonged failure to cooperate with either the respondent or the tribunal. The claimant, a litigant in person, sought to keep adding further allegations and making amendments rather than clarifying claims and issues despite five preliminary hearings, and his conduct at the final (hybrid) hearing was discourteous, uncooperative and wholly unreasonable. The judgment is clear that great care should be taken before striking out an entire claim, and the decision should not be taken as ‘a green light’ for striking out claims that are difficult to manage. However, this claim, described as having ‘exceptional circumstances’, shows that where claims reach a point where conduct renders a fair trial impossible, strike out is appropriate and fair. The judgment provides some helpful commentary on the importance of good and effective case management, particularly in cases involving litigants in person who provide lengthy, illogical and or unparticularlised pleadings. (Smith v. Tesco Stores)

Tribunal procedure – ‘unless’ orders: Applying for an ‘unless order’ can be a helpful tactic to prompt a party to tribunal proceedings to comply and cooperate with the process ‒ essentially, that ‘unless’ they do something, some or all of their claim or defence will be struck out. However, the EAT has held that it was wrong for the ET to make an unless order that had the consequence of a claimant’s entire claim being struck out if she failed to provide information about certain parts of her claim. This was disproportionate, and a clear distinction needed to be drawn between those parts of her claim to which there was material non-compliance and those where there had been compliance. The EAT emphasised the importance of considering the consequences of non-compliance before making an order and not being overly draconian. (Mohammed v. Guy’s and St Thomas’ NHS Foundation Trust)

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