Employment case law update | Winter 2022

Technical | Employment
Published: 2nd February 2022
Area: Employment

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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

Menopause at work: difficulties with symptoms

In a recent case, Rooney v Leicester City Council, the Employment Appeals Tribunal (EAT) held that an employment tribunal had erred in striking out the claimant’s disability and sex discrimination, harassment and victimisation claims at a preliminary hearing.

The claimant, Ms Rooney, had made claims of constructive unfair dismissal, sex discrimination and disability discrimination due to her severe menopausal symptoms. In addition, she had brought claims for non-payment of holiday pay, outstanding expenses and unpaid overtime. Ms Rooney’s solicitors had incorrectly stated in the claim that Ms Rooney was not claiming that she had made a protected disclosure and that she accepted that her work-related stress and menopause symptoms did not amount to a disability under the Equality Act 2010.  She was unaware of this and therefore applied to amend her original claim to include protected disclosure detriment and disability discrimination.

At a preliminary hearing, the employment tribunal held that Ms Rooney was not suffering from a disability in relation to her menopause symptoms, anxiety and depression, and her disability discrimination claim was dismissed, along with her claims of harassment and victimisation. Ms Rooney's sex discrimination claim was struck out for having no reasonable prospects of success.

Ms Rooney appealed. The EAT held that the tribunal had erred in law in deciding that Ms Rooney was not disabled at the relevant time. Ms Rooney had given evidence regarding her menopause symptoms and the effect that they were having on her day-to-day activities (both physical and mental). In addition, she had been suffering from those symptoms for over 12 months at the time of her resignation. Her appeals were allowed and the claims were remitted to an employment tribunal for a decision.

This case is an example of the challenges faced by menopausal women in the workplace in showing that their symptoms amount to a disability. Following an inquiry by the Women and Equalities Committee, it is expected that there will be recommendations to amend legislation further to adequately protect menopausal women from discrimination at work.

Direct offer to employees bypassing collective bargaining was an unlawful inducement

In the case of Kostal UK Ltd v Dunkley and others, the Supreme Court held that a one-off direct offer to employees concerning pay, bypassing stalled collective bargaining, did constitute an unlawful inducement within the meaning of section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

Section 145B of TULRCA prohibits employers from inducing their workers to bypass collective bargaining in certain circumstances.

Kostal concluded a recognition agreement with Unite the Union (Unite) in 2015. This established a framework for collective bargaining and gave Unite "sole recognition and bargaining rights". The parties accepted that the agreement was "binding in honour upon them" but did not constitute a legally binding agreement. During annual collective bargaining negotiations in 2015 (relating to 2016), the company had made an offer to Unite which included a 2% increase in basic pay and a Christmas bonus equating to 2% of basic pay, in return for a reduction to overtime rates, sick pay, etc.  In a union ballot, that offer was rejected by 78% of members. Before the dispute resolution procedures in the Recognition Agreement had been exhausted, the company made direct offers to the workforce, informing staff that they would not receive the Christmas bonus if they did not accept by a deadline.  A majority of staff accepted those individual offers.  In January 2016, the company made a similar offer to those who had not yet accepted, this time without a Christmas bonus, but warning that if not accepted it may lead to termination of their employment. There was no indication as to whether there would be an offer of new employment following the termination. A large group of employees brought claims in the employment tribunal, alleging that their rights under section 145B of TULRCA had been infringed

The employment tribunal found in the employees’ favour and made a total award of £421,800. The company appealed but the EAT rejected the appeal. The EAT found that if acceptance of the direct offers meant that at least one term of employment will or would, as a consequence of acceptance, be determined by direct agreement, and not through collective bargaining, that was sufficient to amount to the "prohibited result" under section 145B. There was no requirement that the offer made, if accepted, would take future determination of terms out of the collective arena altogether.

The Court of Appeal allowed the company’s appeal. It held that a one-off direct offer to employees concerning pay, bypassing stalled collective bargaining, did not constitute an unlawful inducement within the meaning of section 145B of TULRCA.

The employees appealed to the Supreme Court, which held that there had been an unlawful inducement within the meaning of section 145B of TULRCA.

Whilst there are some uncertainties from this case, as can be seen from the inconsistent outcomes at various stages of appeal outlined above, employers should adhere to the collective bargaining framework they have signed up to (or has been imposed by the Central Arbitration Committee). Failure to follow a dispute resolution process will no doubt result in an employer on the wrong side of the law so far as section 145B of TULRCA is concerned.

Equal pay: Morrisons’ retail workers employed on common terms with distribution centre workers

In Abdar and others v Wm Morrison Supermarkets plc and another, an employment tribunal has held that retail (shop floor) workers in Morrisons and Safeway supermarkets could compare themselves for equal pay purposes with logistics (warehouse) workers in their regional distribution centres. At a preliminary hearing, the tribunal held that the majority of the claimants were employed on common terms with the logistics workers for the purposes of section 79(4) of the Equality Act 2010 (EqA 2010).

The EqA 2010 provides that, in order to bring an equal pay claim, an individual must be able to identify a more highly paid comparator of the opposite sex performing equal work at either: the same establishment; or a different establishment where common terms and conditions apply.

The claims set out that retail workers are predominantly female whereas logistics workers in the distribution centres are predominantly male, and the retail workers receive a lower hourly rate compared with the logistics workers.

Morrisons argued that because distribution centres each have their own collectively bargained terms and conditions, staff from one site could not compare themselves with staff from another site in the same group for the purpose of an equal pay claim. The employment tribunal did not agree with Morrisons on this point.

The decision is clearly a favourable one for retail workers, and whilst this is a key hurdle in the litigation process, the next step is for the tribunal to determine whether the retail worker roles are of equal value to the roles of the logistics workers.

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Emma is an experienced employment lawyer acting for a range of clients including public sector, manufacturing and engineering, care providers, and insolvency practitioners.



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