Employment case law update | Winter 2024

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

Unfair dismissal and discrimination for use of offensive language during a race training session

In Borg-Neal v Lloyds Banking Group plc ET/2202667/22, the claimant, BN, attended a training session on race education and asked the trainer how to handle a situation where someone from an ethnic minority used a word that might be considered offensive if used by someone not within that minority. BN added, “the most common example being the use of the ‘N’ word in the black community.” BN used the full word, rather than the abbreviation.

BN was reported for his language during the session. Following a disciplinary process, it was concluded that BN did not intend to cause hurt or offence, that he asked the question without malice, and that the question had been valid. However, the Respondent found that BN should have known better than to use the full word in a professional environment and he should have realised that this could have a serious impact. Although BN had apologised immediately and not repeated the word, the trainer had been off work for 4 to 5 days afterwards. BN was then dismissed on grounds of gross misconduct. He appealed, but this was unsuccessful.

The employment tribunal found BN to have been unfairly dismissed; his actions were not gross misconduct, and context was key. The Respondent did not have reasonable grounds to consider BN’s actions to be gross misconduct. It had also failed to conduct a reasonable investigation. BN had also brought discrimination claims (he is dyslexic); he was successful in his claim for discrimination arising from a disability claim, as the ET concluded that his dyslexia was a strong factor in how BN expressed himself and dismissing BN was not a proportionate means of achieving a legitimate aim. He was unsuccessful in his direct discrimination claim.

BN awarded £470,000 (mainly made up of future loss of earnings), along with an amendment to his record, confirmation of the decision to the FCA, and a neutral reference.

This case, although not binding, is a reminder of how people’s opinions and perceptions on this issue can differ and of the need for a clear behavioural framework when carrying out this type of session, both for trainers and participants.

Settlement of future claims

In Bathgate v Technip Singapore PTE Ltd [2023] CSIH 48, B entered into a settlement agreement with T in January 2017 which settled his claims against T. The agreement contained a specific waiver which set out a list of claims, including age discrimination. There was also a general waiver which included future claims. He received legal advice on the agreement and received an enhanced redundancy payment and notice pay.

The agreement also contained a provision for a further payment, payable in June 2017, to be calculated by reference to a collective agreement. This stated that the additional payment only applied to officers who had not reached their 61st birthday. Discussions between T and B during the redundancy process led him to believe that he was due to receive the additional payment. However, at the time of his dismissal, B was 61 years old.

T therefore decided that B was ineligible for this additional payment. B brought a claim of age discrimination alleging that his treatment amounted to direct and/or indirect discrimination on the grounds of age. T argued that such a claim had been waived by the settlement agreement.

The Inner Court of Session concluded that the list of claims waived in the settlement agreement included those based on age discrimination under section 120 of the EqA 2010, even if they could not be known at the time of the agreement.

It is worth noting that decisions of the Inner House of the Court of Session are not technically binding on courts in England and Wales, but are merely highly persuasive That said, it would be surprising if a future tribunal in England and Wales departed from the decision in this case. It is still the case that in order to be enforceable, a waiver in a settlement agreement must still satisfy the statutory requirements and comply with relevant case law, and will likely only be enforceable where employment is being terminated.

Can an external job applicant bring a whistleblowing claim?

No, held the Employment Appeal Tribunal in Sullivan v Isle of Wight Council [2024] EAT 3

S had two job interviews with IWC but was not accepted for either role. She subsequently made a range of allegations against the interviewers, including one allegation of financial irregularities. S complained to IWC but her complaints were dismissed.

IWC did not allow S the right of appeal, on the basis that the investigation had been extensive and it wished to protect the wellbeing of staff. S brought a whistleblowing claim on the basis that the complaint about financial irregularity was a protected disclosure and the refusal to hear her appeal was a detriment.

The employment tribunal held that S was not a worker, and rejected her argument that the definition of “worker” should be extended on human rights grounds. She therefore could not pursue a whistleblowing claim against IWC.

S appealed but the EAT rejected her appeal, stating that S’s status as a job applicant was not the reason for the alleged less favourable treatment and the status of a job applicant was not analogous to an internal applicant or the occupational classification of judicial office holder.

Was a NHS panel member a “worker”?

M, an Associate Hospital Manager (AHM) was appointed to sit on NHS Trust panels. Her role involved reviewing the detention of patients under the Mental Health Act and was subject to specific Trust-imposed conditions. The Trust maintained that AHMs were independent of the Trust, meaning that they considered M neither a worker nor an employee.

M claimed to be a worker and brought claims in respect of an alleged public interest disclosure under s47B Employment Rights Act, and of victimisation contrary to ss27 and 39 Equality Act.

The nub of the issue was whether there was a contractual relationship, or whether the respondent was an officeholder. It was found that there was an intention to create legal relations between M and the Trust and that the specific terms and conditions of her engagement with the Trust were set by the Trust. Furthermore, M’s role required her to adhere to Trust policies, training, and appraisals, which suggested contractual obligations beyond statutory duties. The Tribunal concluded that M was a worker under the ERA and in employment for the purposes of the EqA. Her claims succeeded. The Trust appealed to the EAT but was unsuccessful.

(Lancashire and South Cumbria NHS Foundation Trust v Moon)