Welcome to May’s edition of Worked Up!

Despite all the bank holidays (which we’re definitely not complaining about), there have been plenty of interesting tribunal decisions and employment law updates over the past month. First off, from April 2022, National Living Wage and National Minimum Wage rates have increased as have compensation limits for tribunal awards and employment related payments (specifically statutory sick pay and the various statutory family leave payment rates).

On a different note, the Northern Ireland Assembly has passed legislation that will entitle domestic abuse victims to 10 days’ paid leave each leave year which seems like a positive step for victims of domestic abuse in employment. It will be interesting to see whether a similar law is introduced in the rest of the UK.

In this month’s edition, we cover whether voluntary redundancy can form the basis of an unfair dismissal claim, examine why correct procedure isn’t everything when dealing with flexible working requests, explore an interesting (but unsuccessful) claim of harassment at Heathrow Airport, look at what employers may need to consider in regards to vaccination and health data post-pandemic and touch on why it is important for employers to be aware of the last straw doctrine.

And in what is hopefully the highlight of your month (!), we’re excited to have recently launched our spring employment and immigration law briefing season focused on the legal considerations related to recruitment and retention. You can watch our launch video here and we will be releasing a series of short videos over the next few weeks tackling some of the hot topics in these areas. The season will culminate with two webinars on recruitment and retention respectively so keep an eye out for invites to those over the next few days.

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.

Can voluntary redundancy form the basis of an unfair dismissal claim?

Missing the Pri-mark: Tribunal errs in determining the correct PCP

Harassment on the Heathrow Express

Ditching data collection post-pandemic

Driven round the bend: What amounts to the ‘last straw’ in constructive dismissal claims?

Ms N White v HC- One Oval Ltd: [2022] EAT 56

Does requesting voluntary redundancy mean that a claim for unfair dismissal would have no reasonable prospect of success? This is the question that the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) considered following a claim by Ms White, a part-time receptionist who worked for the employer in question.

In 2018, the employer announced that it proposed to reduce the number of employees carrying out reception and administrative work. After the Claimant was provisionally selected for redundancy, she proceeded to request voluntary redundancy, which was accepted. Following the termination of her employment, the Claimant submitted a claim for unfair dismissal, citing that the redundancy process was a sham and that she had in fact been targeted for dismissal. The Respondent refuted these allegations and requested that the claim be struck out as it had no reasonable prospect of success.

The ET struck out the claim on the basis that the Respondent would be able to establish a reason for, and the reasonableness of, the Claimant’s dismissal given that the Claimant had volunteered for redundancy. The Claimant appealed to the EAT, which subsequently found that the ET had erred in law by striking out the claim. The EAT held that the ET had failed to engage with the Claimant’s claim at the highest level and that, even if the ET was satisfied with the reason for the dismissal, it had failed to consider the fairness of the process. Consequently, the case was remitted to the ET for consideration by a different judge.

This case shows you must be mindful when dealing with employees who have volunteered for redundancy as such requests may still give rise to an unfair dismissal claim. Employers should therefore continue to act fairly and in accordance with their procedures even when an employee requests voluntary redundancy, as the fairness of the process may still be scrutinised.

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Miss Natasha Allen v Primark Stores Ltd: EAT [2022] 57

In this recent case, the EAT confirmed that the comparison pool for an indirect discrimination claim must accurately relate to the precise provision, criterion or practice (“PCP”) pleaded by the claimant. Read on for an explanation of what that actually means!

Miss Allen, the Claimant, worked as a department manager for Primark. Under her standard terms and conditions, she was required to guarantee her availability to work late shifts. Following her maternity leave, she applied under Primark’s flexible working policy to change her contractual hours due to childcare responsibilities. Primark was able to accommodate her request for all days except Thursdays, as four of the six department managers were already unable to work that shift. The Claimant resigned and issued proceedings for constructive unfair dismissal and indirect sex discrimination on the basis that being required to guarantee availability to work the Thursday late shift amounted to a PCP, placing females at a substantial disadvantage compared to males.

To assess the discriminatory impact of the PCP, the ET constructed a comparison pool which included all six department managers who might be asked to work Thursday late shifts. Having considered the pool, the ET concluded that the PCP affected two men as well as the Claimant and therefore did not put women at a disadvantage.

The Claimant subsequently appealed to the EAT, which found that, in constructing the comparison pool, the ET had wrongfully included the two male managers and redefined her complaint. The PCP was not simply that she was being “asked” to work the Thursday late shift, but that she was being required to guarantee her availability to do so. The two men were in a materially different situation to the Claimant as they were not contractually required to work that shift and only did so in emergencies. For an employee having to balance work and caring responsibilities, the question of whether they had to guarantee their availability or simply “help out” when asked was likely to be one of considerable importance. The ET’s decision was set aside and the matter was remitted for rehearing.

In these times of hybrid working, this decision demonstrates that even if the correct procedure for a flexible working request is followed, a refusal may still result in a claim for indirect discrimination. Employers should always remain mindful of this when dealing with such requests, particularly in the context of sex and disability.

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Mr Anis Ali v (1) Heathrow Express Operating Company Limited (2) Redline Assured Security Limited [2022] EAT 54

This recent EAT judgment considered a claim for harassment and direct discrimination brought by Mr Ali, a Muslim, who worked as a Security Guard at Heathrow Airport.

The first respondent (Heathrow Express) and second respondent (Redline) were carrying out security checks at Heathrow Airport. As part of these checks, a bag containing a box with electronic cables inside and a note with the words “Allahu Akbar” written in Arabic were created as suspicious objects to test security. The Claimant later became informed of the incident when the test results were circulated via email and subsequently complained to the ET that the conduct amounted to direct discrimination or harassment in relation to his religion.

At first instance, the ET held that the conduct did not amount to either direct discrimination or harassment. In its judgment, the ET concluded that in all the circumstances it was not reasonable for the Claimant to perceive the conduct as constituting harassment. The Tribunal held that the second respondent was not “seeking to associate Islam with terrorism – instead they were seeking to produce a suspicious item based on possible threats to the airport”. The Claimant subsequently appealed to the EAT, however, the EAT ultimately found that the ET’s decision was neither perverse nor insufficiently reasoned.

While harassment does not require intent and can be found to have occurred simply based on the conduct’s effect on an employee, this case shows how important the specific facts can be. On a slightly different set of facts, the Tribunal may have come to a very different conclusion.

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During the pandemic, many employers were quick to adapt to the changing government guidance by implementing (and continually updating) policies and procedures put in place to keep the workplace as safe as possible.

As the remaining domestic Covid-19 restrictions have been relaxed across the UK, the Information Commissioner’s Office (ICO) has published some helpful guidance for organisations and employers to consider in relation to data collection and retention practices implemented during the pandemic.

Some of the key highlights from the guidance include:

• Employers should consider whether any emergency practices, such as any Covid-19 questionnaires or other data collection practices, are still necessary. In making this determination, employers should consider whether the measures are still reasonable, fair and proportionate.
• If the employer has collected personal data that is no longer needed, this data should be disposed of securely.
• New cases of Covid are still, unfortunately, being reported in the UK. While employers may still want to keep staff informed about positive cases in the workplace (indeed, monitoring the situation and keeping staff informed can assist with containing the spread of the virus), the employer should avoid naming names or disclosing more information than is necessary to protect the health and safety of its staff.
• Employers should be cognizant of changes to government guidance on Covid-19 if they are continuing to collect vaccination information about their staff. The ICO’s guidance highlights several data protection compliance issues with employers continuing to collect vaccination data, including the need for employers to identify an alternative lawful basis (other than legal obligation) if the legislation previously relied upon has expired.

While employers should remain alert to changes in government guidance (which may vary across the UK) and continue to react accordingly, now may be the time for employers to start reviewing Covid related data collection practices and consider whether this data is still required as we move into a (are we allowed to say?) post-pandemic world.

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Mr John Craig v Abellio Ltd: [2022] EAT 43

In this case, the EAT found that a failure by an employer to make payment on time could constitute the ‘last straw’ following a series of incorrect calculations regarding pay and hours.

Mr Craig was a bus driver and had worked for Abellio Limited (the “Company”) since 2014. Following a series of problems with his pay and hours, which included the Company incorrectly calculating his sick pay during a period of absence, Mr Craig raised a grievance. Mr Craig’s grievance was initially rejected but then accepted on appeal, which found that he was entitled to £6,114 in back pay by a specific date. When the Company failed to make the payment on time, Mr Craig resigned claiming it was the last straw in what had been a “consistent pattern of emotional abuse and calculated deceit”.

The ET dismissed Mr Craig’s claim for constructive dismissal. It found that the Company had redressed the pay dispute in the grievance appeal outcome and that the failure to pay by the promised date was simply a mistake. These events did not constitute a repudiatory breach of contract, nor did it amount to a last straw incident entitling Mr Craig to claim constructive dismissal.

On appeal, the EAT found that the ET had failed to engage with Mr Craig’s factual case or direct itself as to the legal principles applicable to the last straw doctrine. It wrongfully regarded the “long history of various errors and mishandling of his complaints” as having been remedied by the Company’s grievance procedure. When viewed in light of the narrative advanced by Mr Craig, the EAT found that the failure to pay the £6,114 on time was, or could have been, the last straw. The EAT ordered the case to be remitted to a newly constituted tribunal.

The last straw doctrine occurs where an employee has put up with a series of acts or incidents by the employer (which, taken cumulatively, amount to a breach of the implied term of trust and confidence), but resigns in response to a final act or omission (in other words, the “last straw”). Although the final incident may be relatively insignificant in and of itself, it can nonetheless be sufficient to render the whole series of acts as a breach of the implied term. This judgment highlights how seemingly innocuous a last straw could be.

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