Insights Worked Up, your monthly employment law lowdown – February 2023

Welcome to the February edition of Worked Up, a cornucopia of the latest employment law updates.

2023 has already gotten off to a rocky start for England/Scotland government relations, with the UK government blocking Scotland’s Gender Recognition Reform Bill. Speaking to UK Parliament on the decision to block the Bill, Alister Jack stated, “the Bill would have a significant impact on, amongst other things, GB-wide equalities matters in Scotland, England and Wales.” However, it’s unclear what impact the Bill would have on the Equality Act 2010 at this stage – we await further clarification from the UK government on this point.

In other news, following the Supreme Court decision in the headline case of Harpur Trust v Brazel, the government has launched a consultation “seeking views on proposals to pro-rata holiday entitlement for part-year and irregular hours workers based on the annual hours they work”. This is a topic that potentially has wide reaching implications for the UK Film and TV industry and we’re therefore in the process of considering a response to the consultation to ensure that we feed into the debate. We’ll be reaching out to interested parties in due course – please let us know if you’d like to be kept updated.

In this month’s edition, we cover a case where ignorance of an employee’s disability provided his employer with a successful defence to a discrimination claim, ruminate on whether double jeopardy applies when employers reopen disciplinary proceedings in order to change the outcome, examine the latest draft Code of Practice on fire and rehire practices and consider to what extent employers can retain and use their employees’ private messages saved on their work devices in disciplinary and employment tribunal proceedings.

If you would like to discuss any of the below updates, please do get in touch. Alternatively, if you would like to receive these updates directly to your inbox, please subscribe here.

Preston v E.ON Energy Solutions Ltd [2022] EAT 192

The Employment Appeal Tribunal (“EAT”) upheld a tribunal’s finding that an employer could not be expected to make reasonable adjustments before becoming aware of an employee’s disability and could reasonably dismiss an employee for absence unrelated to their disability.

The Respondent, E.ON Energy Solutions Limited, had employed Mr Preston, the Claimant, as a complaints manager. It was accepted that Mr Preston was disabled as a result of having Primary Reading Epilepsy, which meant he was at an increased risk of suffering seizures when reading. After being dismissed, Mr Preston brought claims for disability discrimination under s15 Equality Act 2010 (“EqA”) and failure to make reasonable adjustments in breach of s20 and s21 EqA. An employment tribunal found that Mr Preston’s disability gave rise to a substantial disadvantage but concluded that the Respondent hadn’t known and couldn’t have reasonably known about Mr Preston’s disability before he went off sick with an unrelated stress condition. The tribunal also held that Mr Preston had been dismissed because of his conduct when refusing to engage with a return-to-work programme and concluded this was justified for efficient absence management. Mr Preston appealed this decision.

The EAT dismissed Mr Preston’s appeal and agreed with the tribunal’s decision. The EAT also held the tribunal was entitled to find, in any event, that Mr Preston had not been dismissed because of his disability but due to his refusal to engage in the return-to-work process. This was particularly the case since Occupational Health had advised he was fit to return to work and reasonable adjustments had been made, but Mr Preston had refused to respond to management requests.

This decision reiterates that while employers need to be mindful of their legal obligations around protected characteristics, they can only work with the information they’re given when it comes to reasonable adjustments. The EAT’s judgment is also a reminder that a protected characteristic doesn’t necessarily preclude an employee from being dismissed for an unrelated and legitimate reason.

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Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust and others [2022] EAT 193

In another appeal, the EAT found that an employer had not acted unfairly in reopening disciplinary proceedings against an employee before dismissing her for reasons for which she’d previously been given a final written warning.

Dr Lyfar-Cissé was Associate Director of Transformation and BME Network Chair in an NHS Trust. In 2016, Dr Lyfar-Cissé was subject to disciplinary proceedings, which ultimately upheld allegations against her of bullying, victimisation and discrimination based on race and sexual orientation. As a result, she was issued a final written warning which would be valid for 12 months. Shortly after this, the Care Quality Commission (“CQC”) reported that it had concerns about the Trust, finding that bullying was “rife” and that there was a “culture of fear”, so another Trust took over management of the Trust. Following the CQC report, the new management raised concerns about Dr Lyfar-Cissé’s suitability to be an equality leader, leading to the reopening of her disciplinary proceedings and her eventual dismissal. Dr Lyfar-Cissé then brought a claim stating her dismissal was unfair because it was a result of her protected disclosures and/or victimisation.

The EAT upheld the tribunal’s original decision that Dr Lyfar-Cissé’s dismissal was not unfair and rejected her appeal that the Trust shouldn’t have reopened the disciplinary proceedings on the basis that it was inequitable and against natural justice to do so. The EAT stated that, while it was unusual to reopen disciplinary proceedings, it had given clear reasons for its decision to dismiss Dr Lyfar-Cissé and it was reasonable to reopen the complaint given that issues reported in the CQC report.

This is a useful lesson of what’s potentially possible, and fair, when considering past misconduct proceedings.  It’s important to tread carefully when digging up past issues or concluded proceedings but this case demonstrates that there is scope to do so reasonably in certain situations.

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Also known by the catchier label “fire and rehire”, dismissal and re-engagement tactics captured the public’s consciousness last year after the now infamous Tesco v USDAW case was heard in the Court of Appeal. After Acas guidance highlighted the issues that these practices could cause, including (but certainly not limited to) damage to productivity, staff morale and working relations, the government proposed a draft statutory Code of Practice setting out the steps that employers should take when looking to change the terms of their employees’ contracts.

The government is seeking feedback on its draft Code in a consultation running until 18 April 2023. For those interested in a little bedtime reading, you can access the full draft Code and accompanying consultation paper here. However, if reading government reports doesn’t tickle your fancy, some of the key points of the draft Code are as follows.

  • Employers should share as much information about the proposed changes as possible and explain precisely why they think the changes are necessary. The Code suggests that the more employees understand the background of the proposals, the more likely they are to agree.
  • Consultations with employees should be meaningful and carried out in good faith, with the intention of reaching an agreement rather than being done as a box-ticking exercise. The employer should listen carefully to employee objections and consider the impact of the proposals on their employees.
  • Employers should be honest and transparent about the possibility of firing and rehiring but should not use threats of dismissal as a negotiation tactic if they are not genuinely considering dismissals as a way to achieve their goals.
  • If employers fail to comply with the Code, this will be taken into account in related unfair dismissal claims, with an unreasonable failure to comply resulting in up to a 25% uplift in compensation for claimants.

Some employers may have already been acting in this way as these recommendations are by no means revolutionary and are considered to be good practice. While the Code is unlikely to significantly impact most employers, it reinforces the message that employers should act reasonably and in good faith when making changes that are likely to significantly affect their employees.

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FKJ v RVT and others [2023] EWHC 3 (KB)

An interim High Court hearing judgment has provided some helpful guidance about whether personal messages downloaded to a work device lose their private character (spoiler alert – they don’t).

FKJ brought a misuse of private information claim against her former employer and its managing partner after they obtained around 80,000 of her private WhatsApp messages and used 40 of these as evidence against her in separate employment tribunal proceedings. The defendants came into possession of those messages, they say, after FKJ downloaded them to her work laptop during working hours and in the form of two anonymous letters. The defendants applied to strike out the claim, suggesting that there were “significant problems” with the merits of FKJ’s claim and that, where she had downloaded the messages to her laptop, she had no reasonable expectation of privacy remaining.

The Court refused the strike out, noting that the defendants had no justification for FKJ losing her expectation of privacy in the messages sent via letter and that they had offered no explanation or authority for the idea that private information downloaded to a work device lost its private character. It held that many of the WhatsApp messages were from FKJ to her partner and best female friend about her professional, social and private life and that she would have a reasonable expectation of privacy in respect of these messages. It went on to flag that only around half of the 40 messages used in the employment tribunal were relevant and therefore disclosable, meaning the defendants had no justification for retaining the vast majority of FKJ’s messages.

This judgment may have significant repercussions for employers, particularly when it comes to the retention of employees’ personal messages. Employers may need to tread more cautiously when using employees’ communications in internal disciplinary proceedings or investigations as employers may not have carte blanche to review all of employees’ private messages, even if they are stored on company devices.

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