10 Notable Employment Cases of 2016
Bartholomews Agri Food v Thornton
Mr Thornton worked for Bartholomews as an agronomist. His contract of employment contained a restrictive covenant seeking to prevent him from working for competitors for 6 months after his employment terminated. His employment contract also included the unusual term that he would be entitled to full pay during the 6 month period following termination of employment, even if he was in paid employment, so long as he complied with the restrictive covenant.
Following Mr Thornton’s resignation, Bartholomews applied for an interim injunction to prevent him from working with a competitor. However, the court rejected the application on the basis that the restrictive covenant was wider than necessary to protect the company’s legitimate business interests, and was therefore unenforceable, for the following reasons:
- The enforceability of a restrictive covenant requires to be assessed at the time it was entered into. In this case, it was entered into when Mr Thornton was a trainee agronomist with no customer contact and the covenant remained unenforceable despite a subsequent promotion to a more senior role.
- The covenant applied to all Bartholomews customers regardless of whether Mr Thornton had any knowledge of them, meaning that the covenant applied to 98% of customers that Mr Thornton did not deal with. This was wider than necessary.
The court also held that the term providing for full pay during the 6 month restrictive period did not render an otherwise unenforceable restrictive covenant enforceable. The court held that to do so would effectively permit employers to purchase a restraint of trade, which is contrary to public policy.
This case is a useful reminder that restrictive covenants will be unenforceable if they go beyond what is necessary to protect legitimate business interests and require to be assessed at the time they are entered into. Employers should therefore consider whether covenants require updating when employees are promoted. The case also confirms that if a covenant is wider than is necessary it will remain unenforceable, regardless of any provision for additional payments to be made to the employee.
Wasteney v East London NHS Trust
She was given a written warning following allegations that she was attempting to impose her Christian beliefs on a Muslim junior colleague, who complained that she was being subjected to unwanted conduct. This included Miss Wasteney praying for and laying her hands on her during a meeting.
Following the written warning, Miss Wasteney brought claims of harassment and discrimination related to religion or belief. She also argued that the NHS had breached Article 9 of the European Convention on Human Rights (freedom to manifest religion or belief).
The Employment Appeal Tribunal rejected her claims. It drew a distinction between an employee simply manifesting their belief on the one hand (for which disciplinary action would be unlawful) and inappropriately promoting their religion to a colleague who considered it to be unwanted conduct (for which disciplinary action was non-discriminatory and appropriate).
This case makes it clear that it is not discriminatory for an employer to apply a disciplinary sanction where an employee blurs professional boundaries by putting pressure on a junior colleague and seeking to impose their beliefs on others. The reason for the disciplinary action was not as a result of Miss Wasteney manifesting her religious beliefs but rather that she had acted inappropriately.
Carreras v United First Partners Research
Mr Carreras was employed by United First as an analyst. He was involved in a serious accident whilst riding his bike which resulted in symptoms including dizziness, fatigue and difficulty concentrating. Due to the effect his symptoms had on him, he was found to be disabled in terms of the Equality Act. When he returned to work there was an expectation on him to work long hours, although he had not been specifically instructed to do this. The Claimant brought a claim for disability discrimination on the basis that United First applied a provision, criterion or practice (PCP) requiring him to work long hours. The Employment Appeal Tribunal found that, notwithstanding that he had not been specifically instructed to work long hours, there was an expectation and that this was sufficient to amount to a PCP. It held that this amounted to a failure to make reasonable adjustments and was therefore disability discrimination.
This case is noteworthy as it highlights that an employer’s expectation that a disabled employee will work long hours can amount to a failure to make reasonable adjustments. Employers with a long hours culture should be aware of the risks of claims from disabled employees.
Achbita v G4S Secure Solutions NV
Ms Achbita is a Muslim employee who was employed by the security firm G4S as a receptionist. G4S has a workplace rule that employees are not permitted to wear any visible signs of their political, philosophical or religious beliefs. Having complied with that rule for three years, Ms Achibita then informed G4S that she intended to start wearing a headscarf during working hours, for religious reasons. She was dismissed by G4S when she repeated her intention and brought a claim in the Belgium courts for wrongful dismissal and religious discrimination. The Belgian appeal court sought an opinion from the ECJ as to whether a private employer is permitted to prohibit a female Muslim employee from wearing a headscarf in the workplace, where the employer’s rule prohibits all outwardly visible signs of beliefs, and to dismiss her if she refuses to comply with this rule.
The ECJ highlighted the fact that G4S’s rule was neutral, in that it did not target any specific religions or ideologies. On that basis, it stated that the rule could not constitute direct discrimination. It then went on to consider whether it could amount to indirect discrimination and, if so, whether it could be justified. The ECJ stated that the headscarf ban was capable of being a genuine occupational requirement but that it could only be justified if it was a proportionate occupational requirement with a legitimate objective.
It concluded that indirect discrimination may be justified in order to enforce a policy of religious and ideological neutrality so long as it was proportionate. The following factors must be taken into account in assessing proportionality:
- the size and conspicuousness of the religious symbol,
- the nature of the employee’s activity,
- the context in which she has to perform that activity, and
- the national identity of the Member State concerned.
The case has now been sent back to the Belgian court to determine whether the ban amounts to indirect discrimination.
This case is significant as it confirms that a ban on not only headscarves but any symbols of political or religious beliefs etc can amount to discrimination but can also be justified. It is important to note that each case will turn on its own facts so employers who are seeking to impose similar bans are encouraged to take legal advice.
Holmes v QinetiQ
Mr Holmes was employed by QinetiQ as a security guard. Following a number of lengthy periods of absence connected to pain in his back, legs and hips, he was dismissed on the grounds of ill health. QinetiQ conceded that his dismissal was unfair as it failed to obtain an up to date Occupational Health Report after he underwent an operation which effectively resolved the pain he had been experiencing. The employment tribunal awarded compensation to Mr Holmes but refused to apply a percentage uplift to his compensation as requested by Mr Holmes. Mr Holmes argued that the percentage uplift should be applied as a result of QinetiQ’s failure to follow the ACAS Code of Practice on Discipline and Grievance (the “ACAS Code”). The employment tribunal concluded that the ACAS Code did not apply to ill health dismissals and the Employment Appeal Tribunal agreed. The EAT held that employers do not require to follow the ACAS Code when dealing with ill health capability as they do not involve matters of misconduct or poor performance. As such, whilst Mr Holmes was entitled to compensation for being unfairly dismissed, he was not entitled to have his compensation increased as a result of QinetiQ’s failure to follow the ACAS Code.
This case is important as it confirms that the ACAS Code only applies to matters where there is an element of culpability on the part of the employee. Matters relating to ill health alone do not fall into this category and the ACAS Code need not be followed. However, to avoid a finding of unfair dismissal, employers still need to follow a fair and reasonable procedure before dismissing an employee on the grounds of ill health. This will usually involve obtaining up to date medical evidence, which QinetiQ failed to do so in this case, rendering the dismissal unfair.
Faithorn Farrell Timms LLP v Bailey
Mrs Bailey was employed by Faithorn Farrell as a secretary. She claimed that her employer had made it clear that she could not continue to work part-time. As a result of this she initiated discussions about a Settlement Agreement. Settlement could not be reached and her solicitors thereafter corresponded with her employer with letters marked “without prejudice” in an attempt to reach a settlement. Mrs Bailey then lodged various grievances with her employer and these included references to the letters marked “without prejudice”. Her grievances were not upheld and in response she resigned and claimed constructive dismissal and sex discrimination.
Mrs Bailey wished to rely on the letters marked without prejudice in support of her claim that the employer forced her out of the business. The employer argued that Mrs Bailey should not be able to lead evidence in relation to this as they were protected conversations and on a without prejudice basis and therefore inadmissible as evidence.
The EAT held that the protection afforded by protected conversations extends not only to what was said, for example any offers/counter offers, but also the fact that they took place in the first place. It also confirmed that discussions about a protected conversation between for example managers and HR, are also capable of being protected.
The EAT held that privilege had been waived under ‘without prejudice’ principles, but not under protected conversations legislation as it is not possible to waive privilege in these circumstances.
McTigue v University Hospital Bristol
Ms McTigue is a nurse who was engaged to carry out work for the University Hospital Bristol via an employment agency. Whilst she had a contract with the employment agency, the Hospital also issued her with an Honorary contract requiring her to cooperate with the Hospital in relation to various issues such as health and safety, clinical governance, and working time. It also reserved the right to terminate the Honorary contract in case of any concerns that might jeopardise the continuity of quality of care offered to patients.
Ms McTigue made various protected disclosures under whistleblowing legislation to the Hospital and was later removed from her posting. She brought unlawful detriment claims against the Hospital under whistleblowing legislation, including a claim in relation to her removal from the post.
The Employment Appeal Tribunal confirmed that a whistleblowing claim can be brought by a worker, not only against an employer but also against an end user, if the terms of the contract are substantially determined by the end user or both the employer and the end user. The EAT overturned the employment tribunal’s decision that the agency substantially determined the terms of the contract. The EAT held that the employment tribunal had failed to consider whether both the agency and Hospital substantially determined the terms of the contract. The EAT remitted the case back to the employment tribunal to determine this question. In doing so, it made clear that the purpose of the extended definition of worker in the whistleblowing legislation was to protect agency workers against detriments by end users.
Employers who engage agency workers should therefore be aware of the risk that they could face whistleblowing claims if they are alleged to have subjected the workers to a detriment as a result of protected disclosures being made by them.
G4S Cash Solutions (UK) v Powell
Mr Powell was employed by G4S as an engineer. As a result of a back injury, he was rendered disabled and was no longer able to carry out the role of engineer. He was given the role of key runner which was essentially a driving role, providing support to engineers. Despite this being a lower graded post, he retained his engineer’s salary. He understood that the role was permanent but around one year later, he was informed that the role was not permanent, it was being discontinued and that he was required to select a new role from a list of vacancies. If no suitable vacancy was identified, he was advised that he would be dismissed on medical grounds. Mr Powell lodged a grievance and G4S then confirmed that it was prepared to make the key runner role permanent but only at a reduced rate of pay. Mr Powell refused to accept this and was dismissed.
Mr Powell brought claims to the Employment Tribunal, including a claim of disability discrimination in that G4S’s refusal to protect his pay was a failure to make a reasonable adjustment. The Employment Appeal Tribunal held that that protecting Mr Powell’s pay so as to allow him to return to work in a less physical role was a reasonable adjustment.
Whilst this case was decided on its own facts, employers should be aware that pay protection may be a reasonable adjustment and not to discount it out of hand. The EAT did comment that it did not expect that it will be an everyday event that an employer is required to make up an employee’s pay long-term, to any significant extent. However it stated that it can envisage cases where this may be a reasonable adjustment as part of a package of reasonable adjustments to get an employee back to work or keep an employee in work.
Snell v Network Rail
In this case the Glasgow Employment Tribunal awarded just under £30,000 to Mr Snell, for indirect sex discrimination as a result of the manner in which Network Rail operated its Shared Parental Leave policy.
Mr and Mrs Snell, the father and mother of a newly born child are employed by Network Rail. Its Shared Parental Leave policy provided that, whilst mothers were entitled to full pay for up to six months, fathers taking shared parental leave were only entitled to the statutory minimum payment of £140 per week. Mr Snell brought a claim of indirect sex discrimination in the employment tribunal arguing that the policy placed men generally, and him specifically, at a particular disadvantage compared to female colleagues during periods of shared parental leave.
Prior to the tribunal hearing, Network Rail accepted that its policy of paying men less shared parental pay than women amounted to indirect sex discrimination and the award of compensation to Mr Snell included loss of earnings and injury to feelings.
This case is a reminder to employers that care should be taken when operating policies generally (not only maternity related policies) that they do not inadvertently place a group of employees (for example men/women, a particular ethnic group etc) at a disadvantage, resulting in discrimination.
Whilst indirect discrimination can be justified in certain circumstances, this is a complex area and it is recommended that legal advice is taken if an employer is considering relying upon a justification defence.
Aslam v Uber
Uber is an organisation which provides taxis via a smartphone app. Mr Aslam is a taxi driver who drives an Uber taxi. As is increasingly commonplace in the “gig economy”, Uber treats its taxi drivers as being self-employed. Mr Aslam brought a claim to the employment tribunal for payment of the National Minimum Wage and holiday pay under the Working Time Regulations, asserting that he was a worker. He also brought a claim for detrimental treatment under the whistleblowing legislation. Uber maintained that he was unable to bring such claims as he was not a worker but was self-employed.
The Employment tribunal decided that Mr Aslam was a worker and was therefore entitled to the National Minimum wage, paid holidays and rest breaks under the Working Time Regulations and to the protection afforded by whistleblowing legislation.
It is almost certain that this case will be appealed, possibly all the way to the Supreme Court but it is of great significance to all those employed in the gig economy and they will undoubtedly watch its progress with interest.