June 2022 Bulletin

Welcome

Section 100(1)(d) and (e) of the Employment Rights Act 1996 provides employees with protection from dismissal if they exercise their right to leave the workplace or refuse to return to it, or take other steps to protect themselves, if they reasonably believe there is serious and imminent danger. An employee does not need two years’ service to bring this claim, making it an attractive option for employees with short service. In Rodgers v Leeds Laser Cutting, the EAT has handed down the first appeal decision on the application of section 100 to the Covid-19 pandemic, giving insight on how the law applies in practice.

The employee had less than two years’ service as a laser operator. He was one of around five employees who worked at any one time in a large warehouse-type building. The employer had already put some measures in place before the first national lockdown, including social distancing, extra cleaning and staggered breaks. They reiterated government advice to staff. The employee attended work in the first week of lockdown. He then sent a text message to his manager on 29th March saying that he would not be coming to work until lockdown eased because he was worried about bringing the virus home to his vulnerable child who had sickle cell anaemia. He was dismissed a month later. The employee didn’t have enough service to bring an ordinary unfair dismissal claim so he brought a claim for automatic unfair dismissal under section 100 which doesn’t require two years’ service.

The employment tribunal said that a reasonable belief in serious and imminent danger should be judged on what was known at the time the actions were taken. On the facts, the tribunal found that the employee didn’t believe there was serious and imminent danger in the workplace – he believed there was serious and imminent danger everywhere. However, he had also given inconsistent evidence about his fear, which was undermined by his decision to drive a friend to hospital the day after he left work. The text message to his manager referred to coming back when the pandemic eased, not when the workplace had been made safe. The size of the workplace and the real ability to socially distance also meant that such a belief was not objectively reasonable. He could have averted any danger by following the safety measures and refusing to do the occasional task that overstepped them. The EAT agreed. They said that many of the tribunal’s factual findings undermined the employee’s assertions of a belief in serious and imminent danger, both at work and in general, that prevented him returning to work. Those facts included the size of the workplace and the few people in it; the fact that social distancing was generally possible; the availability of masks (which the employee had not asked for); and his behaviour during the pandemic in driving a friend to the hospital and working in a pub during lockdown. The tribunal had been entitled to conclude that he did not reasonably believe that there was serious and imminent danger, either at work or in society more generally, that stopped him returning to work. The EAT agreed that the employee could have taken reasonable steps to avert the danger by adhering to safety guidelines in place, including distancing, handwashing and mask-wearing, both at work and in general. The EAT judge expressed his sympathy for the employee’s concerns for his vulnerable children but said the tribunal had made no legal errors. Although the Covid-19 pandemic could in principle form the backdrop to a case under these provisions, the facts of this case did not fit.

The outcome of this case turned in large part on the behaviour of the employee who gave contradictory and confusing evidence which undermined his assertions about workplace danger. The workplace was large, social distancing was possible and safety measures were already in place even in March 2020. This case shows that implementing safety measures is vitally important and will significantly reduce the risk of ‘danger’ posed to staff by the virus in the workplace and therefore the risk of tribunal claims. However, The EAT noted that the ‘danger’ required for section 100 does not have to be specific to the workplace – it can be a danger ‘at large’ in society, such as a pandemic. It also shows that it is not enough for an employee to be worried about their health or that of their family – they must reasonably believe that the serious and imminent danger affects their ability to go to work. It is likely to be hard for an employee to establish that kind of reasonable belief if the employer has followed government or industry specific health and safety guidance. And, as in this case, it will always be relevant evidence if an employee’s general behaviour, including outside work, flies in the face of their assertions of fear.

Discrimination and unfair dismissal

Knightley v Westminster Hospital NHS Foundation Trust

Many employment tribunal claims involve claims for both unfair dismissal and discrimination. They therefore involve the application of different legal tests to the same set of facts. Capability dismissals in particular lend themselves to claims that there has been discrimination – arising from a disability which impacts health and has led to the capability procedure – as well as unfair dismissal – that the dismissal itself was either substantively or procedurally unfair. It is easy to presume that if one claim wins then so should the other, but that overlooks the fact that the legal tests are different. In the recent case of Knightley v Westminster Hospital NHS Foundation Trust, the EAT has given useful guidance on the relationship between the laws on unfair dismissal and discrimination.

The employee was a Lead Midwife for Mental Health, a key organisational role in an NHS department which provided mental health support to pregnant and post-natal women. The role involved dealing with vulnerable patients and high-risk pregnancies. She had stress, anxiety and reactive depression which the employer conceded was a disability. She had a long history of high sickness absence dating back to 2013, including a year-long period of absence between 2015 and 2016. Her absence impacted the service and raised serious concerns about patient safety. The employer used its absence management process which included occupational health assessments and redeployment to another less demanding department. Despite these adjustments, the employee was often late for work and left early. The employee raised a grievance about the way she was being managed but it was largely dismissed. She refused to return to work, saying there were no adjustments that could help, and she wanted ill health retirement. A final capability hearing took place in January 2018, by which time she had been continually absent for 8 months and signed off for a further 6 months. She was dismissed with 12 weeks’ notice. She was given the right to appeal within 10 working days. She asked for an extension which was denied due to the feeling that it was part of an established pattern of behaviour. She submitted a short appeal after the deadline which was refused. She brought tribunal claims for unfair dismissal and disability discrimination, including a failure to make reasonable adjustments and discrimination arising from disability.

The employment tribunal found that the short appeal deadline put the employee at a substantial disadvantage compared to people who weren’t disabled and said that an extension of time would have been a reasonable adjustment. However, they concluded that the appeal would not have succeeded anyway because all the reasoning in place at the time of dismissal was still relevant at the point of appeal. They upheld that discrete claim for discrimination and awarded £3000 but dismissed all other claims including the claim for unfair dismissal. The employee appealed, saying that her dismissal could not have been fair if the dismissal process sitting behind it had been, even if only in part, discriminatory. The EAT upheld the tribunal’s decision. The legal tests for unfair dismissal and discrimination are different and, when applied to the same facts, may produce different legal outcomes. Success in one does not guarantee success in the other – the tribunal must apply each legal test to the facts. When looking at a dismissal, the tribunal must apply the range of reasonable responses test, rather than applying its own view of whether a particular procedural step should have been taken. The key question is whether the adjustment in question – which was not made – means the dismissal would be unnecessary. If that is the case then the dismissal would likely fall outside the range of reasonable responses. The tribunal here had concluded that the overall procedure followed by the employer was within the range of reasonable responses open to a fair employer. The dismissal was fair because the appeal issues didn’t make the process unfair overall, not because it made no difference to the outcome. The EAT said the tribunal’s decision about the fairness of the dismissal was unsurprising bearing in mind the employee’s very poor attendance record, the impact of her absence on the service and colleagues and the fact that she could not return to work in the foreseeable future and, moreover, did not want to. An appeal in this case would not have served any useful purpose.

This case is a good example of how tribunals apply different legal tests which can result in different outcomes for claims based on the same facts. The employer in this case should have allowed an extra period of time for the employee to lodge her appeal, and other employers can learn from their mistake here. It would have taken minimal time and effort to deal with the appeal – a lot less than the tribunal process which then followed. However, this case shows that a minor procedural failing will not necessarily render the dismissal process as a whole unfair, especially in extreme cases like this where the employer is both unable medically and unwilling to return to work.

Acas early conciliation

Pryce v Baxterstorey

If an employee wants to bring an employment tribunal claim, they must first go through Acas early conciliation (Acas EC) and wait to receive a certificate. The certificate number must then be listed on the form. The claim must be rejected if Acas EC has not been completed. The tribunal rules also say a claim must be brought on the prescribed ET1 form, which includes boxes to tick to show Acas EC has been completed. The ET1 form can only be submitted online (via the tribunal portal), by post or delivered in person. A recent case has shown how strict those rules are and how the tribunal has no discretion to waive them, however much they might want to.

In Pryce v Baxterstorey, the employee worked as an operator who was dismissed after less than a year’s service. She brought claims for sex and race discrimination on the day she was dismissed. She had not yet started Acas EC. She did not fully understand the tribunal application process or what was required in order to lodge a claim. She ticked the box on the ET1 form saying she did not have an Acas EC certificate and ticked a further box saying, wrongly, that early conciliation was not required. She then contacted Acas, who told her she needed an Acas certificate before she could bring a tribunal claim. Acas issued the EC certificate 4 days later. The employee sent the certificate to the tribunal the same day, asking them to add the certificate number to the form. By mistake, the tribunal accepted the claim when it should have rejected it for being lodged before Acas EC had been completed. The error was only discovered at a hearing just after the limitation period had expired. The employee said that she didn’t realise at the time that she needed to go through the Acas process first. Had the tribunal told her that, within the 3-month time period, she would have re-lodged the claim. The judge said he had no option but to dismiss the claim. The employee appealed.

The EAT judge in this case said that this was the kind of case that gives the law a bad name. An employment tribunal claim can only be presented on the prescribed form and in the prescribed ways, which don’t include email. Therefore the employee’s email to the tribunal giving the EC certificate number could not be considered as lodging a claim. If a claim couldn’t be presented that way, then nor could that process be considered the ‘re-presentation’ of a claim either. The tribunal had no power to waive those requirements. Although the tribunal rules allow for other irregularities to be waived, that doesn’t include the situation where the claim is lodged before getting an Acas EC certificate. The requirement to get an EC certificate before lodging a tribunal claim is a statutory requirement that cannot be waived by the tribunal. The only solution here is to lodge a new claim on a new ET1 form. The EAT noted that the rules provide for rejecting claim forms that are non-compliant and for reconsideration and rectification in some cases, but those rules do not refer to the mistake in question – lodging a claim before getting an Acas certificate. The EAT judge was left with no option but to reject the appeal, whilst saying he had a great deal of sympathy for the employee. He encouraged her to relodge the claim and throw herself on the mercy of the tribunal, indicating that in the absence of other relevant circumstances, the application should be looked on ‘sympathetically’.

This case shows how rigid the tribunal rules are in relation to lodging claims on the prescribed form. The rules are in place to ensure that employees have tried to address the issue informally before they call on the tribunal to resolve the dispute. However, in this case, the rules operated as an obstacle to justice. As the judge pointed out, the employee did everything she thought she needed to – she lodged the claim on the day she was dismissed and sent the certificate to the tribunal 4 days later. The tribunal’s own mistakes were just as crucial here and prevented the employee from understanding her error and having the opportunity to rectify it within the normal limitation period. Although success in her discrimination claims is not guaranteed, she must be odds-on for having any new claim accepted out of time.

Discrimination – victimisation

Leher v Aspers

A victimises B if A subjects B to a detriment – treats them badly – because B has done a ‘protected act’. Protected acts can include making allegations of discrimination or bringing a discrimination claim. Even if the discrimination allegation itself turns out to be unfounded, a claim for victimisation will succeed if B is treated badly because of making the complaint. An employment tribunal has looked at a case recently where leaving someone out of casual work drinks got the employer into hot water.

In Leher v Aspers, the employee was employed as a cashier at a casino. At the time she was recruited she had 22 years’ experience in the gaming industry and was good at her job. However, she had problems with persistent lateness and sickness absence. She applied for many promotions over the years but was unsuccessful in them all, despite receiving a ‘rising star’ nomination during that period. Her lateness was not given as a reason for any of those failures. Other employees with disciplinary warnings were promoted during that time, the vast majority of whom were white. She raised allegations of discrimination by way of the grievance process but her complaints were dismissed by her employer. During the grievance process, the Director of Human Resources threatened her about making future claims and stopped her from using the term ‘discrimination’ during the process. After raising the complaints, including against managers in her team, she said she was treated badly by colleagues, including being excluded from some informal after-work drinks. The drinks were organised by her colleagues and discussed in the employee’s presence, but she was not invited. She brought a victimisation claim, saying she had only been left out of the drinks because she had made discrimination complaints against ‘one of their own’. She also brought claims of race and age discrimination in relation to the failures to promote her. After a period of sickness absence, she was offered two options – to return to her current job in the same team or to take up a new role on the gaming tables, of which she had significant prior experience. In relation to the latter, the employer said she would need 6 weeks’ training. This was 4 weeks more than new starter experienced croupiers were required to undertake. A white male colleague with similar experience made a move to the gaming tables with only a few hours training. The employee resigned, bringing further claims for unfair dismissal and discrimination.

The employment tribunal upheld the victimisation claim in relation to the drinks. Whilst work relationships remained relatively amicable, the team did not want to socialise with someone who had made complaints against one of the team. The tribunal concluded that excluding her from those drinks was a way for those colleagues to make their feelings about those discrimination complaints felt by the employee. She had been subjected to a detriment because she was excluded from an opportunity to bond with team members. Her treatment by the Director of Human Resources was also victimisation – detrimental treatment because she had raised allegations of discrimination. The tribunal also found that the employee had been discriminated against directly, on grounds of race or age, by being treated differently to a white male comparator in relation to the refresher table games training. The overegged ‘refresher’ training was also unlawful victimisation, deliberately imposed as an obstacle to the employee’s return because she was viewed as a troublemaker for raising discrimination allegations. The tribunal also found that she had been constructively dismissed, the breach of trust and confidence stemming in large part from the discrimination and victimisation.

This case doesn’t create any new law but it is a good example of lots of things going wrong in relation to the same person. The tribunal expressed surprise that the employer’s Director of Human Resources was ignorant about discrimination issues. The employer’s culture did not sniff out, and stamp out, potential backlash to the employee’s discrimination claims which resulted in successful victimisation claims. What may be most surprising for employers is the successful victimisation claim for the employee’s exclusion from casual colleague drinks. Employers must seek to stamp out discrimination in the first place but must take all complaints seriously and ensure that both managers and colleagues understand that it is unlawful to treat someone badly because they have made discrimination complaints. Leaving someone out might seem like an allegation from the playground, but it is far from child’s play if it ends up in the employment tribunal.

Exclusivity clauses

Back in 2015, the government banned the use of exclusivity clauses in zero hours contracts. Clauses that stop a zero-hours contract worker from working for another business, or which say that the worker cannot work for anyone else without the employer’s consent, are void and unenforceable. Following a consultation exercise, the government has now decided to extend the ban to the contracts of other lower income workers, those whose guaranteed income either equals or is less than the Lower Earnings Limit, which is currently £123 per week. The government believes that this will have a two-pronged effect – lower income workers will be free to top up their income elsewhere, at a time where the cost of living is increasing, and businesses will be more likely to fill vacancies, especially in the hospitality and retail sectors which are currently struggling to recruit.

The government will protect these new rights by extending the right not to be unfairly dismissed, or subjected to a detriment, to lower income workers who are dismissed or treated badly because they refuse to comply with an exclusivity clause. The government intends to bring these new laws into effect in due course.

Disability and long Covid

The Office for National Statistics has reported that 1.2 million people in the UK are suffering from long Covid, prolonged symptoms that impact their ability to do day to day things. Long Covid is a term used for people who experience symptoms for 4 weeks or longer, but 44 per cent of responders said they had experienced symptoms for more than a year and 13 per cent for more than two years. 19 per cent of those who said they experienced long Covid said that their ability to do normal day to day activities had been ‘limited a lot’. Unsurprisingly, there is an increased incidence of long Covid in people who have underlying health conditions or disabilities.

Also in May, the Equality and Human Rights Commission said that people with long Covid may qualify for protection under the Equality Act 2010 if their condition meets the legal definition – that is, if it has a substantial and long-term effect on a person’s ability to do normal day to day activities. However, on current evidence, they did not recommend that long Covid is treated more generally as a disability. This seems sensible, given that long Covid symptoms vary dramatically between patients both in their severity and longevity. Some people will qualify for protection, but many will not.

That said, employers should try to support employees through any period of long Covid. Even for those who shake Covid off within 4 weeks, many spend several weeks feeling exhausted even after the active symptoms subside. Returning to work too early may be a false economy if it prolongs recovery. Even for employees who don’t meet the test for disability, a period of minor adjustment might benefit employees and help them to return to work sooner. Adjustments such as a period of home working, adjusted hours or even adjusted duties may aid recovery and actually reduce the overall period of absence. As the EHRC advice suggests, every case is different, so employers must be particularly sensitive to cases which are likely to meet the legal test for disability and ensure that reasonable adjustments are made in the same way as for other disabled employees.

Discrimination – harassment

Finn v British Bung Manufacturing

A harasses B if they engages in unwanted conduct related to a protected characteristic (such as race or sex) that has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. A serious one-off incident can amount to harassment under the Equality Act 2010. In a recent case, an employment tribunal looked at a case of harassment based on an insult about baldness, and whether that amounted to harassment based on sex.

The judgment in Finn v British Bung Manufacturing makes for juicy reading. The employee was an electrician employed for nearly 24 years by a small but longstanding family-owned business. The working environment was industrially robust, where strong language was the norm. The claims stemmed from an incident between the employee and a much younger colleague, Mr King. Mr King threatened the employee with violence and called him a ‘bald ****’. The incident was witnessed by colleagues and the employee complained. Matters came to a head when the employee invoked the help of his police officer son in drawing up a witness statement for use at his grievance hearing. It was unfortunately created on a West Yorkshire Police template – the employee said this was an error, which the tribunal did not believe – and led to the employee being dismissed for gross misconduct based on a breakdown in trust and confidence. The employer said the witness statement had been deliberately used to intimate police involvement in the matter to intimidate the employer in relation to the grievance process. The employee brought multiple claims, including unfair dismissal on various bases, whistleblowing, as well as harassment based on the ‘bald ****’ insult.

The tribunal wrangled with the facts for 20 pages before it could even get started on the law. It found that the employee had been unfairly dismissed, based on procedural errors, but that dismissal two weeks later would have been within the range of reasonable responses. They reduced compensation for the employee’s contributory fault in presenting his evidence in the form of a police statement. The tribunal said that this conduct was foolish and blameworthy and the employee’s refusal to apologise was bloody minded. However, they upheld his harassment claim. Being called a ‘bald ****’ was unwanted conduct. Although strong language was routinely used in this workplace, including by the employee, the personal nature of the comment crossed the line. The tribunal found that the comment was intended to violate the employee’s dignity or create a hostile environment. The important question was whether the comment related to the protected characteristic of sex as the employee insisted. The employer argued that baldness was not exclusive to men, because women could be bald too, so the ‘bald ****’ comment was not sex-based. The employment tribunal disagreed. They said that baldness was far more common in men than women and they found that the comment was inherently related to sex (though not age as baldness affects adult men of all ages).

This case is not binding on other tribunals but operates as a reminder to employers about the importance of a healthy and respectful workplace culture. This case involved a robust factory floor where swearing was commonplace. That was a culture in which harassment could flourish. Name calling of any kind should be called out and dealt with appropriately. Employers should ensure that equalities training is regularly rolled out, both to staff and managers. This will inform employees about acceptable conduct and empower managers to deal robustly with any name calling that slips through the net. Perhaps most importantly, it will protect the business against vicarious liability claims.

And finally…

Are your job advertisements putting off potential recruits? Chatter Communications, an employee brand agency, recently conducted a survey of 230 job adverts on the websites of FTSE 100 companies and analysed the findings.

The survey found that only 5 per cent of job adverts were written in an entirely gender-neutral way. Although job adverts can no longer specifically request male or female applicants, the way they are written can attract – or repel – people of a certain gender. The survey lists examples of more female gendered words which include compassion, cooperate, warm, loyal and pleasant. More male gendered words include adventurous, ambitious, assertive and driven. The survey found that 67 per cent of job adverts for customer service roles were written in strongly feminine terms, whereas jobs in technology, science and product development were more likely to be strongly masculine. Using unnecessarily gendered language could put off some applicants and result in imbalanced workforces.

The report also points out how important ‘readability’ is in relation to job adverts. The survey found that more than half of the job adverts analysed were difficult to read. The report says that the average reading age of adults in the UK is between 9 and 11 years. If adverts are written in unnecessarily complex language, it might put suitable applicants off, including those for whom English is not a first language. The report encourages employers to tailor job adverts to the kind of job for which they are recruiting – an advert for a Managing Director should be different to that of a factory worker. Templates may be unhelpful. Suggested small changes include simplifying language if possible, keeping sentences short and focussed, and using bullet points or sub-headings to break up text.

In the current climate, where recruitment in some fields is tricky, getting your job advert right is crucial. Employers should ensure that a job advert lures good candidates in rather than putting them off.