Technical

Employment case law update | January 2021

Published: 23rd January 2021
Area: Corporate & Commercial

Here we take a quick look at some key employment case law decisions from the last couple of months

Heskett v Secretary of State for Justice - Discrimination and the “costs plus” rule

Mr Heskett was a probation officer employed by the National Offender Management Service (NOMS), an agency of the Ministry of Justice.  In response to the 2008 recession, NOMS made changes to its remuneration policy, which meant that it would take much longer for probation officers to progress upwards through the pay scale.

Mr Heskett argued that this change disadvantaged younger employees and was therefore indirectly discriminatory. The court agreed but nevertheless found that the change was justifiable because it was needed to ensure that NOMS “lived within its means” during the recession.

This decision reinforces the “costs plus” rule in the context of justifying policies which indirectly discriminate against certain groups of people.  The rule means that a mere desire to save costs will not, without something more, be enough to justify a discriminatory policy.  However, as the facts of the case illustrate, in practice this principle is not always easy to apply.

If looking at the bigger picture, a policy is driven by an employer’s need (or arguably just a desire) to “balance the books” then this might be sufficient justification.  The distinction is a subtle one – looked at one way the saving of costs is still the driving force in this scenario – and it is notable that the leading judge, in this case, expressed the view that the “costs plus” label was rather unhelpful.

What the ruling means for you

While this case doesn’t change the law, it does illustrate that the “plus” element need not be completely unrelated to the “costs” element.

Steer v Stormshore Ltd – Discrimination and interim relief

Ms Steer brought a claim in the employment tribunal alleging that her dismissal by Stormshore was discriminatory.  In doing so she applied for “interim relief”, which is in essence a remedy under which a worker can be awarded short-term financial relief in advance of the main hearing to determine their case.

Under UK employment law interim relief only applies in a very limited number of circumstances, whistleblowing claims being the primary example.  At present, UK discrimination laws do not provide for interim relief in ordinary discrimination cases.  As a result, the employment tribunal rejected Ms Steer’s application for interim relief.

She appealed to the Employment Appeal Tribunal (EAT), arguing that the inability to seek interim relief in discrimination cases is a breach of, amongst others, Articles 6 (right to a fair trial), 8 (right to respect for private life) and 14 (prohibition on discrimination) of the European Convention on Human Rights.

The EAT agreed that these three articles appeared to be breached, but the court’s hands were tied as it has no power to grant a declaration of incompatibility with the Human Rights Act.  As such, the appeal was dismissed.  However, Ms Steer was granted permission to appeal to the Court of Appeal which, critically, does have the power to grant a declaration of incompatibility.

What the ruling will mean for you

This is a really interesting one to watch because if the Court of Appeal finds in favour of the claimant this will fundamentally alter the legal landscape in terms of the remedies available for discrimination claims.  Note that Brexit will not affect the outcome as the UK remains a signatory to the European Convention on Human Rights.

University College London vs Brown – Trade union activities and detriment

For 14 years, a departmental email account existed at University College London (UCL) which allowed unmoderated emails to be sent to all staff in the IT department. UCL decided to close the account in question and Mr Brown, acting as a union representative for University and College Union (UCU) at UCL, set up a new mailing list with the same members of staff included.

Mr Brown was disciplined by UCL for setting up that list, and for not taking it down when he was instructed to.

The disciplinary officer, Mr Grainger, decided that in refusing to take down the list, Mr Brown had failed to follow a management instruction and was therefore issued with a warning. After an unsuccessful appeal of this sanction, Mr Brown then presented a claim to the Employment Tribunal, claiming that UCL’s decision to issue the warning was in breach of section 146 of TULR(C)A 1992. Section 146 of TULR(C)A 1992, protects employees from detriments relating to taking part in trade union activity.

It was held by the Employment Tribunal that the employee reasonably qualified for protection under s146 (in relation to the acts of setting up the email list (1); and disciplining Mr Brown for refusing to take the new email list down (2)), and then that the “sole or main motive” of the employer at the time was to prevent or deter Mr Brown from these union related activities.

It is important to note that in the Tribunal decision, the Judge and members had disapproved of the action of UCL in deleting the departmental email account. The Judge highlighted that the unmoderated email list had existed for 14 years, and was the trade union’s most effective way of contacting the wider team. This change therefore had a significant effect on the trade union’s activities at UCL.

In closing submissions in the original Tribunal hearing, Counsel for UCL had argued that potential data protection breaches by Mr Brown took him away from the protection of section 146. The ET and then the EAT disagreed with this, and held that Mr Brown retained this protection, regardless of any data protection concerns (which were not taken as being established).

The EAT summarised that:

"There was no dispute that Mr Grainger's "sole or main motive" in imposing the formal oral warning was to discipline Mr Brown for refusing to delete the email distribution list. It followed from the ET's decision [that this was a union activity] that this alone was enough to make good Mr Brown's claim. It meant that even if Mr Grainger's explanation of his "purpose" was accepted, it was an impermissible one, and UCL therefore lost..."

The EAT does not overturn findings on factual issues but rather is limited to assessing whether there has been an error of law or some other actionable basis for a successful appeal. The decisions made on the “sole or main motive” of UCL; and whether Mr Brown qualified for protection under section 146, were both questions of fact, and therefore there was no basis for a successful appeal.

What the ruling means for you

This case is an example of the importance placed on protecting union activities, in that this protection was given precedence over the general right of employers to take action following potential insubordination. Accordingly, it shows the difficult balance that employers need to tread when dealing with union related matters. 

Angard Staffing Solutions Ltd and anor v Kocur and anor - Agency staff and vacancies

The Employment Appeal Tribunal (EAT) recently heard a case concerning alleged breaches of regulations 5 and 13 of the Agency Workers Regulations (AWR) 2010. Regulation 5 gives agency workers the right to the same basic working and employment conditions that they would be entitled to as an employee of the end user (i.e. the organisation that the agency workers are supplied to).

Regulation 13 obliges the end user to inform agency workers of any relevant, vacant roles that they have. There are relatively few cases brought concerning alleged breaches of the AWR, so this case is an important example of how these rights apply in practice.

The claimants were all employed by Angard, which is a company in the Royal Mail group, and claimants worked on a flexible basis for Royal Mail. Twelve claims had been presented by the claimants, with 5 of these claims being successful in the Tribunal hearing. Both parties then appealed to the EAT.

One of the complaints under Regulation 5 related to the fact that the agency workers’ shift lengths were 12 minutes longer than they would have been if the claimants were employed directly. Another claim brought under Regulation 5 related to Royal Mail’s practice of providing direct recruits with a 30 minute weekly training session, and not providing this to agency workers.

The EAT held that there was no breach of Regulation 5 arising from these two claims, as there was nothing in the AWR to suggest that there must be equal treatment in relation to the actual content and duration of working time. It was also held by the EAT that there were no breaches of the equal treatment provisions in respect of the entitlement to breaks, salary or overtime (Royal Mail gave its direct employees first refusal on overtime).

In relation to Regulation 13, it was held by the EAT that the right to be informed of relevant vacancies by the end user does not mean that agency workers are necessarily entitled to apply for and be considered for internal vacancies. Agency workers are entitled to the same opportunity as external candidates in that respect, namely, they are ineligible for internal vacancies but can apply for any externally advertised roles.

What the ruling will mean for you

For those employers engaging agency workers this case will be a useful example of how Tribunals will interpret the often complex provisions of the AWR, and the favourable outcome on these particular issues will also be welcome.

Contact us

If you have any queries about how the above case law may affect your business, contact a member of your local employment team.

As the furlough scheme starts to gradually wind down, and the restrictions around social distancing continue, you’ll need to consider what adjustments need to be made before bringing your employees back into the workplace. Our guide to recovery and resilience addresses those key people-related questions, challenges and opportunities.

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