Employment case law update | Spring 2023

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

McQueen v General Optical Council [2023] EAT 36

In the recent case of McQueen v General Optical Council, the Employment Appeal Tribunal upheld an employment tribunal’s decision that an employee’s conduct at work when he came into conflict with colleagues was not something that arose in consequence of his accepted disabilities.

Mr McQueen was employed by the General Optical Council as a registration officer. He had dyslexia, some symptoms of Asperger’s syndrome, neurodiversity and left sided hearing loss. The employer (the Council) accepted that these were disabilities within the meaning of the Equality Act 2010. The Council also accepted that because of his disabilities, Mr McQueen needed to be given written instructions to back up verbal communications, and that he needed some physical adjustments in the workplace.

During his employment, Mr McQueen was examined by occupational health, a psychiatrist and a psychologist. The evidence was that his speech would be altered at times of stress, anxiety or conflict. It was accepted that he would raise his voice and adopt mannerisms suggestive of aggression, with inappropriate speech or tone.

Mr McQueen became involved in several difficult interactions with his colleagues, and it was reported that he had suffered ‘meltdowns’ at work, the first in April 2015 and the second in April 2016. Further episodes of conflict occurred after that, leading to disciplinary actions in relation to his interactions with colleagues. Mr McQueen brought a claim of disability discrimination, alleging that contrary to section 15 of the Equality Act 2010, he had been discriminated against because of something arising in consequence with his disability. He argued that all of his disruptive workplace behaviour arose from his disabilities. The Council defended the claim, acknowledging that there were certain known effects arising from his conditions, but that the specific ways in which he had interacted with his colleagues, that were the substance of the disciplinary action, did not arise from his disabilities.

The tribunal found that Mr McQueen disagreed with instructions he was given at work, and that this led to the conflict. However, it decided that the specific conflict did not arise from his disabilities. It concluded that the conflict arose because Mr McQueen did not like being told what to do and had a short temper. It rejected his claim and he appealed.

The Employment Appeal Tribunal dismissed the appeal, upholding the tribunal’s decision that there had been no disability discrimination. It accepted the tribunal’s decision that Mr McQueen had a short temper and that his disabilities had no effect upon his conduct during the conflict that he was disciplined for. It agreed with the tribunal’s finding that the Council had not treated him unfavourably because of something arising in consequence of his disability.

Advice for Employers

The case is a useful reminder for employers to obtain medical evidence and follow through on the advice received where this is appropriate. Employers should also carefully consider and record each incident so that it may be possible to draw a distinction between the impact of an employee’s disability and conduct at work that might be entirely unrelated.

Khakimov v Nikko Asset Management Europe [2023] EAT 38

The Employment Appeal Tribunal has concluded that employment tribunals do not have the power to order employers to allow former employees to access their email inbox or outlook calendar.

Mr Khakimov was employed as Product Management Director in the UK element of the employer’s business. He was dismissed in January 2021 and brought claims of whistleblowing, race and disability discrimination, together with unfair dismissal.

During the conduct of his claim, the employment tribunal made various case management orders. One of these was the refusal of a request by Mr Khakimov for a disclosure order that would have required the employer to provide him with access to his emails and Outlook calendar for the 6 years leading up to his dismissal. Mr Khakimov had argued that he needed to be granted this access so that he could conduct a search across his emails and calendar to assist him in completing a request for further information that he had been ordered to provide.

The tribunal refused the request for the order on the basis that it considered it did not have the power to make such an order. Mr Khakimov appealed the refusal decision.

The Employment Appeal Tribunal (EAT) dismissed the appeal. It considered that the requested order resembled a search order, requiring the employer to allow the employee to enter its premises to search for evidence. The EAT noted that search orders can only be made in the High Court. It noted that although an employment tribunal has the power to order specific documents to be disclosed, there is no power to order an employer to give a former employee access to property for the purpose of obtaining documents. Finally, it concluded that although the tribunal rules of procedure allow a tribunal to make a general case management order, that power was not sufficiently elastic to allow the order sought.

Advice for Employers

Although employers remain bound by the standard disclosure requirements to disclose any item that is relevant to the issue in dispute, and although requests for disclosure of specific documents must be responded to, an employer does not have to grant a former employee access to its systems for the purpose of allowing an employee to conduct a search with the aim of assisting them to prepare a case.

Randall v Trent College Ltd and others ET/2600288/2020

An employment tribunal has rejected a school chaplain’s claim for religion and belief discrimination after the school disciplined him, then made him redundant, following a sermon where he said that pupils did not have to accept the ideas of LGBT+ “activists”.

The Claimant, Reverend Randall was employed as a chaplain at Trent College. The school had adopted an “Educate and Celebrate” programme aimed at “tackling homophobic, biphobic and transphobic bullying and ingrained attitudes in schools”. The Claimant opposed the programme, which he considered to be against Christian teaching and went further than simply trying to address bullying.

In May 2019, he delivered a sermon, which dealt with these “competing ideologies” and stated that pupils did not have to accept the “ideas and ideologies of LGBT activists” where they conflict with Christian values.

Following the sermon, there were an unprecedented number of complaints from both staff and pupils. The school commenced disciplinary proceedings and the chaplain was initially dismissed for gross misconduct in August 2019, but later reinstated on appeal. However, in November 2020 he was subsequently dismissed for redundancy.

The Claimant issued claims for unfair dismissal as well as religion or belief discrimination, harassment and victimisation.

The tribunal held that the Claimant’s dismissal was fair.

The school had previously warned him about the need for sensitivity when dealing with these types of topics and that they should only be dealt with in the classroom in a context where ideas could be openly discussed and questioned. The school felt that dealing with such issues in a sermon risked not only upset to pupils and staff, but also real distress and the risk of psychological harm to vulnerable LGBT+ students who were coming to terms with their sexual identity.

The Claimant disregarded that advice and gave a sermon that the tribunal found to be “entirely self-serving and not driven by the needs of the pupils”. The schools actions were justified by its need to safeguard the welfare of its students and comply with school regulations. The tribunal found that the later dismissal for redundancy was genuine and conducted fairly.

Advice for Employers

The competing rights of different groups with varying views is an extremely difficult area for employers to safely navigate. If you are faced with a similar issue, then do not hesitate to contact us for detailed advice on how to respond to such incidents.

Smith v Surridge and others

An employer who provides a reference about an ex-member of staff must take reasonable care to ensure that the information contained within the reference is true, accurate and fair. For schools, they are also under a duty to 1) reference any safeguarding concerns and 2) to confirm whether the employee has been subject to a formal capability procedure.

In this case, the High Court had to decide whether a school had defamed two of its former teachers when the head teacher’s personal assistant sent an email that said:

“However, I would like to inform you that there were some safeguarding issues during their time at Stanborough School. We will fill in the forms you have sent us in detail and send these to you shortly.”

The two teachers had job offers withdrawn as a result of this, so they issued claims for libel, misuse of private information and negligent misstatement. They argued that this wording inferred that they had abused or mistreated pupils or that they were guilty of misconduct, which was not in fact the case.

The High Court decided that a hypothetical reader would have taken the reference at face value. The term “safeguarding” is a broad term and someone reading that would assume that something serious had happened. As such, they found that this wording was therefore defamatory.

Advice for Employers

Top tips to consider as a result of this case:

• Review your reference giving practices.
• Consider the information you provide in references and any supporting information provided.
• Keep to the facts and ensure the information is true, accurate and fair.
• Decide who within the organisation can give references.
• Be careful about phone calls / verbal references. Any information given verbally must still be true, accurate and fair so be careful of agreeing to any “off the record” discussions as they are unlikely to be so.