Employment case law update | Spring 2022

Technical | Employment
Published: 11th May 2022
Area: Corporate & Commercial

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Here we take a quick look at some key employment case law decisions from recent months.

Click below to reach your chosen case

Macken v BNP Paribas

Ms Macken was employed as a financier at BNP Paribas from 2013. She remains an employee but was placed on long-term sick leave from July 2018. She brought three employment tribunal claims against BNP Paribas in 2017, 2018 and 2019 in relation to various issues.

In March 2019, the employment tribunal upheld Ms Macken’s claims against BNP Paribas for direct sex discrimination, victimisation and equal pay arising from conduct by senior colleagues. This included one of Ms Macken’s colleagues placing a witch’s hat on her desk and another colleague dismissing her using the phrase “not now Stacey”, which was later copied by other colleagues. Another of her senior colleagues would answer the phone with greetings such as “hi sexy”. Ms Macken’s relationships with her senior colleagues worsened after she raised a complaint internally regarding inequality in pay and bonuses and resulted in her performance ratings worsening. In March 2021, a remedy hearing took place in respect of Ms Macken’s successful claims.

The Employment Tribunal awarded Ms Macken a staggering £2,081,449.70 in compensation, one of the largest ever awards made by an Employment Tribunal, and a timely reminder of the potential cost of discriminatory behaviour.

Breaking down each of the heads of loss, the tribunal awarded Ms Macken a total of £614,461.95 for past losses, comprising of £401,797.86 for equal pay and £212,664.09 for personal injury. In relation to the award for personal injury, the tribunal held that, as Ms Macken had been on long-term sick leave due to the discriminatory treatment she suffered at BNP Paribas, and as there was no intervening act which broke the chain of causation, Ms Macken was entitled to compensation for losses arising from being ill.

Furthermore, Ms Macken was awarded £860,120.11 for future losses. While the tribunal acknowledged that Ms Macken may be able to work in the future, it was accepted that she would never be in a position to return to her role at BNP Paribas, nor would she be likely to obtain a new position that paid her as much as she was entitled to through her Private Health Insurance (PHI) with BNP Paribas.

The tribunal concluded that, as Ms Macken would continue to satisfy the definition of ‘incapacity’ under the PHI until she retired, the best way for her to mitigate her losses was by remaining employed by BNP Paribas, but not carry out any role, and continuing to receive the PHI benefit for 15 years, until she was 65.

An additional £124,315 was awarded as compensation, which included an injury to feelings award of £35,000 and aggravated damages of £15,000. The tribunal also made adjustments of £479,789.57, including an ACAS uplift of £317,016.34. Furthermore, the Employment Tribunal ordered BNP Paribas to carry out an equal pay audit under regulation 2 of the Equal Pay Audit Regulations 2014.

Kocur v Angard Staffing Solutions & Another

Mr Kocur was employed by Angard Staffing Solutions (Angard), an employment agency. Angard is a wholly owned subsidiary of the Royal Mail, which provides agency workers exclusively to Royal Mail to assist with fluctuations in demand for postal workers. Mr Kocur was supplied to the Royal Mail by Angard to work in its Leeds Mail Centre in an operational post grade (OPG).

Vacancies for permanent positions arose at the Leeds Mail Office. These vacancies were advertised on the notice board and were first offered to OPGs who were either already in permanent posts or were reserve class OPGs. Mr Kocur was told that agency workers were not eligible to apply for these posts but could apply when the posts were advertised externally and that when he did apply, he would be in competition with external applicants. Mr Kocur brought a claim under regulation 13(1) of the Agency Workers Regulations 2010 (AWR). The Employment Tribunal upheld Mr Kocur’s claim stating that the right to receive information extended to an implicit right to apply for vacant posts.

However, on appeal, the Employment Appeal Tribunal (EAT) disagreed and held that regulation 13(1) entitles agency workers to be notified and given the same level of information about the vacancies as directly recruited employees. However, regulation 13(1) did not mean that agency workers have a right to be entitled to apply and be considered for internal vacancies on the same terms as directly recruited employees. Mr Kocur then appealed to the Court of Appeal.

The Court of Appeal unanimously upheld the decision reached by the EAT and dismissed Mr Kocur’s appeal. In its decision, the Court of Appeal concluded that on a natural reading of regulation 13(1) of the AWR, it does not provide agency workers with anything other than the right to be notified of a vacancy. The Court of Appeal rejected Mr Kocur’s arguments and concluded that there was no basis for implementing a broader interpretation of regulation 13(1). Furthermore, the Court of Appeal agreed with the EAT’s analysis that the consequences of giving agency workers a right to apply for, and be considered for, vacancies would be to prevent the hirer from being able to give preference to in-house candidates. If the legislator had intended this to be the case, it would have been expressly set out in the legislation.

R (on the application of Palmer) v Northern Derbyshire Magistrates’ Court

West Coast Capital (USC) Limited (USC) was placed into administration by its director on 13 January 2015, when Mr Palmer was appointed as one of the administrators. (Two others were also appointed, but due to the division of responsibilities, it resulted in only Mr Palmer being subject to proceedings.)

On the same date, a pre-pack sale of the business occurred, which expressly excluded a warehouse. The following day, Mr Palmer notified the 84 warehouse employees that they were at risk of redundancy and that a consultation meeting would be held later that day. Around 15 minutes later, the employees were handed a letter advising them that, following the consultation, USC could not identify any alternative to redundancy and they were dismissed.

On 30 January 2015, the Redundancy Payments Service asked the administrators whether a form HR1 had been lodged. Due to an apparent oversight, form HR1 was not lodged by the administrators until 4 February 2015. In July 2015, the Secretary of State issued proceedings against Mr Palmer (and the director) for failure to follow redundancy procedures under s.194 TULRCA and, specifically, failure to lodge form HR1 with the Redundancy Payments Service in the required timeframe.

The Magistrates’ Court found that Mr Palmer (as administrator) could be prosecuted for offences under s.194 TULRCA. Mr Palmer sought a judicial review of that decision to ascertain whether it was in theory possible to prosecute an administrator under s. 194. The Court held that administrators are capable of being prosecuted under s.194 TULCRA. From the date they are appointed, only they are in a position to notify the Redundancy Payment Service as they are carrying out a managerial function in place of the directors. The case will now proceed in the Magistrates’ Court to determine whether Mr Palmer committed a criminal offence.

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