Employment Case Law Update February 2023

Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.

Redundancy

Cook v Gentoo Group Ltd

Mr Cook, was made redundant from his job at Gentoo Group just prior to his 55th birthday.

Under the rules of his pension scheme, members are entitled to an immediate payment of their retirement pension without actuarial reduction when they reach the age of 55 and are made redundant, resulting in an additional, substantial contribution for the employer.

It was alleged the employer curtailed the redundancy process to ensure Mr Cook was dismissed before turning 55. Had the redundancy process not been curtailed, and Mr Cook had been dismissed after his 55th birthday, the employer would have been liable for a payment of approximately £80,000 into the pension scheme.

Mr Cook brought a claim for unfair dismissal and direct age discrimination due to the curtailed redundancy procedure.

The tribunal at first instance upheld the claim for unfair dismissal, and that there had been no genuine endeavour made to find acceptable alternative employment as part of the process. It further decided that the pace at which the redundancy consultation procedure had been reduced was unfair. The tribunal also determined that if the employer had operated a fair procedure, Mr Cook would have still been made redundant, but this would have been after his 55th birthday.

However, it also found that the employer did not directly discriminate against the claimant because of his age when it decided to curtail the redundancy process. It was determined that Mr. Cook had relied on the wrong comparators, and in any case, it would have ruled that age discrimination was acceptable as a proportional means of attaining a legal objective.

Mr Cook appealed.

The EAT found in favour of Mr Cook, holding that the Tribunal had not taken into account whether the treatment was a proportionate means of achieving a legitimate aim.

Before the EAT made its ruling, the Tribunal had the chance to explain its thinking. At that point, the Tribunal determined that the employer’s goal was to avoid incurring the costs associated with making contributions to the pension. Additionally, it stated that the detriment caused to Mr Cook would have been proportionate in light of other payments he had received, such as redundancy and notice pay amounting to £47,000.

When the Tribunal made the initial judgement, the EAT was not persuaded that this was a part of its justification. It has sent the claim back to a fresh Tribunal for review.

When the Tribunal made the initial judgement, The EAT was not persuaded that this reasoning formed part of its initial decision and remitted the claim back to the Tribunal to reconsider.

Employer takeaways

The ruling serves as a warning to employers to consider pension scheme implications as early in the redundancy planning process as practicable.

Direct Sex Discrimination

Earl Shilton Town Council v Miller

Ms Miller, an administrative assistant at the town council, worked in a Church-owned building that also hosted a playgroup without readily accessible toilet facilities for female staff.

Male toilets were in the Council’s part of the building, while female toilets were in part occupied by playgroup and also used by the children. As this arrangement of female staff having to share toilets with the playgroup and children was not suitable, the council then allowed females to use the male toilets within the main building.

The only toilet facility for ladies in the workplace was a small cubicle that could only be accessed by passing a urinal. Women wouldn’t always be able to tell if a man was urinating before they entered the room. Other inadequacies included the lack of sanitary bin within the cubicle, which was only installed 6 months after complaint and then only emptied on request.

Ms Miller took her employer to the employment tribunal claiming harassment, victimisation and discrimination the grounds of sex.

In 2020, the tribunal found in Ms Miller’s favour on the grounds of the claims relating to victimisation and harassment by management, and found the lack of provision of adequate toilet facilities in the workplace did constitute direct sex discrimination.

The Council appealed.

The Employment Appeal Tribunal, however, dismissed the appeal and found in favour of the claimant. It found that, on the facts, notwithstanding the same toilet facilities being available, this was deemed less favourable treatment as the facilities did not meet Ms Miller’s needs; specifcally, there was a risk of her seeing a man using the urinal and there was no sanitary bin that was routinely emptied.

The EAT determined the Council’s decision-making process was irrelevant since the treatment was inherently due to sex.

Employer takeaway

This means the provision of inadequate toilet facilities for women can constitute direct sex discrimination by subjecting the claimant to less favourable treatment.

Unfair & wrongful dismissal

Leicester City Council v Chapman

Mr Chapman had been employed for over ten years at a leisure centre run by Leicester City Council.

The claimant was reported by a member of the gym staff for incidents of aggressive behaviour and unwanted physical conduct, including instances of shouting, grabbing, chasing and pushing the colleague’s face to his groin area.

Leicester Council investigated the allegations, which included reviewing CCTV footage. CCTV was found showing Mr Chapman chasing and grabbing female colleagues.

When questioned about the incidents, Mr Chapman initially claimed he couldn’t remember them, but after being shown the CCTV footage, he described them as banter.

The council’s investigation took several months. Despite interviewing numerous witnesses to the incidents, the council failed to interview two eyewitnesses.

Mr Chapman was subsequently dismissed summarily for gross misconduct.

The main ground for dismissal was an alleged incident where he allegedly pushed a female colleague’s head into his groin, which was not clearly visible on the CCTV. Notwithstanding this, the disciplinary decision makes extensive use of the CCTV footage.

Mr Chapman brought claims for unfair and wrongful dismissal.

The Employment Tribunal determined that the Claimant’s dismissal for gross misconduct was unjustified since the Council has been unable to infer any misconduct from the silent CCTV footage. As such, the decision to dismiss could not have been justified.

The tribunal found the internal investigation’s conclusions, which were mostly supported by silent CCTV footage, to be unreasonable and to have violated the implied duty of mutual trust.

The council appealed.

The appeal was accepted by the Employment Appeal Tribunal. It held that the oral testimony of the witnesses and other documentary material gathered by the council during the investigation had been overlooked by the tribunal at first instance, which instead had substituted its own viewpoint in their analysis.

Although the CCTV was an important piece of evidence, it was not the only proof supporting the council’s determination that Mr Chapman had engaged in misconduct.

The claim has been sent to a new tribunal to be reconsidered.

Employer takeaways

Mrs Justice Eady, the president of the EAT, concludes that the ET substituted its version of the incident in issue by refusing to address the evidence in front of the dismissing officer and their justification for their judgement. They had also disregarded the respondent’s indirect oral testimony and documented evidence. Although the ET would have preferred the claimant’s live testimony, it was a legal mistake to simply disregard the respondent’s supporting documentation. She granted the appeal as a result.

EAT Procedure

Hawkes v Oxford Economics Ltd

Mr Hawkes was a litigant in person. He was appealing the decision of an employment tribunal that his unfair dismissal case should be dismissed.

On the final day to request an appeal, Mr Hawkes sent a series of emails between 15:29 and 16:00 attaching the required documents. One of the emails, containing his notice of appeal, was sent at 15:33 however, for unknown reasons, the email failed and did not arrive, despite being correctly addressed.

Ten days later, Mr Hawkes received an email from the EAT advising that it had not received a notice of appeal. He re-sent the information by email.

The registrar did not consider Hawkes had ‘good reason’ for his late appeal and declined to extend the deadline.

On appeal, this decision was overruled. It was accepted that Hawkes did not know his email had not been received.

As such, the EAT found Mr Hawkes had had ‘good reason’ for missing the deadline given the lack of email ‘bounceback’ advising of an error or failure to send.

Accordingly, the facts merited the ‘exceptional step’ of allowing an extension meaning the appeal is treated as having been filed on time.

Employer takeaways

While this case relates to specific facts and the claimant acted as a litigant in person, it acts as a reminder to take swift action and follow deadlines to avoid issues of appeals being made out of time.

It is also worth noting that Mr Hawkes may have been treated more leniently as a litigant in person than parties with professional representation.

Mrs Justice Eady suggested to the EAT User Group that parties with legal representation should submit tribunal appeals using the CE-File system, which provides automatic confirmation of the time and date of receipt.

Need assistance?

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Last updated: 27 February 2023