1. Montanaro v Lansafe Ltd ET/2203148/2020 – LINK
In this case the Employment Tribunal (“ET“) held that an employee whose workplace was in the UK but who had remained in Italy at the start of the COVID-19 pandemic was automatically unfairly dismissed when his employer dismissed him for unauthorised absence.
The Claimant was employed by the Respondent as an IT professional from 17 February 2020. The Claimant subsequently took annual leave to go on holiday to Italy and on 9 March 2020, the evening before he was due to return to the UK, Italy went into lockdown. The guidance from the Italian authorities was to stay at home, though travel for work purposes was permitted. The UK government required 14 days’ isolation on return from Italy. The Claimant explained this to the Respondent and was told to wait for further instructions. He continued to work remotely. However, on 11 March 2020, the Respondent sent a letter to the Claimant’s address in London (knowing that he was still in Italy), advising that he had been dismissed with effect from 6 March 2020 for taking unauthorised leave and failing to follow company procedures. The Claimant only became aware of his dismissal on 1 April 2021 when he received his final payslip and P45.
He claimed automatic unfair dismissal under (inter alia) Section 100(1)(e) of the Employment Rights Act (“ERA“), which provides that an employee is automatically unfairly dismissed if the reason or principal reason for their dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or others from the danger.
The ET agreed that the outbreak of COVID-19 presented circumstances of danger, with a risk of serious illness or death due to the significant levels of infections at the time, and that the Claimant reasonably believed the danger to be serious and imminent. Further, the Claimant had taken appropriate steps to protect himself from such danger, had communicated appropriately with the Respondent at the time, and continued to work. The ET held that the reason given by the Respondent for dismissal in the dismissal letter was not credible (it appeared to have been constructed for another situation altogether), and that it did appear that the dismissal was connected with information provided by the Claimant that he could not return to work physically in the office for a period of time because he would have to self-isolate for 14 days.
This case adds to the steady flow of claims brought under section 100 of ERA in relation to the pandemic. It serves to show that employers should take a considered approach when dealing with employee health and safety concerns and a knee jerk response is not advisable. Employers should also be mindful of government guidance at the time of dismissal as this is something that the tribunal is likely to take into account when deciding whether the steps employees have taken to protect themselves from danger are appropriate.
2. Secretary of State for Justice v Plaistow UKEAT/0016/20 and UKEAT/0085/20 – LINK
In this case, the Employment Appeal Tribunal (“EAT“) upheld the Employment Tribunal (“ET“)’s finding that compensation for direct sexual orientation discrimination and harassment should be calculated based on the employee’s career-long losses.
The Claimant, a prison officer, had suffered harassment based on his sexual orientation and unsuccessfully raised multiple grievances with the Respondent employer, which led to him suffering post-traumatic stress disorder, depression and symptoms of paranoia, presenting with functional impairments. The ET considered that his injures were likely to be permanent and it was very unlikely that he would return to work before retirement age. On this basis the ET found, and the EAT agreed, that this was a rare case where financial loss should be assessed across the whole future career that the Claimant would otherwise have had.
The EAT rejected other elements of the ET’s calculation of losses, including the ET’s failure to take into account the uncertainties involved in predicting loss of earnings, including for example early death, disability or other unforeseen circumstances when deciding that a 5% discount should be applied to the overall losses. The EAT also accepted that it was not clear that the ET had considered the absolute financial value of the award it was making, when it had applied a 20% uplift for failing to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, and therefore allowed this ground of appeal.
This case illustrates that in certain circumstances, career-long losses are the appropriate basis for calculating compensation for unlawful discrimination. It is worth noting that such cases are rare, and the outcome in this case was influenced by the severity and duration of the harm caused to the Claimant.
3. L v K [2021] CSIH 35 – LINK
In this case, the Inner House Court of Session (“IHCS“) upheld a tribunal’s finding that the dismissal of a teacher charged with possessing indecent images of children, but not prosecuted, was fair on the basis that it was for “some other substantial reason” (“SOSR“) under section 98(1)(b) Employment Rights Act (“ERA“) 1996.
The Claimant employee had been arrested and charged after police found a laptop containing indecent images of children at his home. However, he was not prosecuted on the basis that the police could not prove he had sole access to the laptop. This was reported to his employer, who conducted an investigation and held a disciplinary hearing. The individual charged with deciding the outcome of the disciplinary procedure could only say that he could not confirm that the employee had not downloaded the images. However, the Claimant was dismissed on the basis of safeguarding concerns and reputational risk to the employer.
The Employment Tribunal (“ET“) found that, considering the criminal charge and the fact that the Claimant did not dispute that the images were on his computer, the dismissal met the requirement of being SOSR and was within the band of reasonable responses under section 98(4) ERA 1996. However the EAT overturned this decision, finding that the dismissal was unfair on the basis that the employer’s letter inviting the Claimant to the disciplinary hearing gave no notice that reputational damage was a potential ground of dismissal, and that the teacher’s alleged misconduct should not have been taken into account since his guilt could not be established.
On appeal against the EAT’s decision, the IHCS held that the EAT had failed to correctly categorise the reason for dismissal as SOSR, and that the ET’s first instance decision was free of legal error. The EAT had made its decision on the incorrect basis that the Claimant had been dismissed for his conduct in downloading the illegal materials, which would require a reasonable belief in the Claimant’s guilt, whereas he was in fact dismissed for SOSR which related to a lack of trust and confidence, since his employer could not be satisfied that he was not guilty. The IHCS also found that the ET had applied the correct test to determine the band of reasonable responses and had acknowledged that other employers may not have dismissed the Claimant in the same circumstances, meaning there was no error of law even if the EAT may have taken a different view. Further, it was not unfair in the circumstances that the invitation to the disciplinary meeting did not mention reputational damage as a potential basis for dismissal.
This case provides a helpful reminder that there is a range of reasonable responses within which an employer must act in order to fairly dismiss an employee, and so a dismissal may be fair even where a different employer would not have dismissed them in the circumstances. It also emphasises the distinction between SOSR and misconduct dismissals, and demonstrates that there may still be a fair SOSR dismissal even where the employer has not been able to conclude, on the balance of probabilities, that the employee is guilty of misconduct, if there are other substantial reasons (such as the safeguarding of vulnerable individuals or reputational risk) for dismissal.
4. IX v WABE eV (Cases C‑804/18 and C‑341/19) EU:C:2021:594 – LINK
In this case, the Court of Justice of the European Union (“CJEU“) held that it is not direct discrimination for an employer to have a policy which prohibits employees from wearing anything manifesting a religious, philosophical or political belief in the workplace, if that policy requires “neutral” dress from all employees.
The Claimant was employed in Germany by the Respondent as a carer in a child day care centre. The Respondent had a policy prohibiting employees from displaying any signs of political, philosophical or religious beliefs that were visible to parents, children and third parties in the workplace. The Respondent expressly confirmed that a Christian cross, Islamic headscarf or Jewish kippah could not be worn “as the children should not be influenced by the teachers with regard to a religion.” This policy was implemented whilst the Claimant was on parental leave. She wore an Islamic headscarf to work for religious reasons and upon her return to work following parental leave, she refused to remove her headscarf and was suspended. When she appeared for work again wearing a headscarf, she was given a warning for her previous refusal to remove it. She was also asked to perform her duties without a headscarf but refused. The Claimant was sent home, temporarily suspended and received a further warning. She issued proceedings in the German courts.
The CJEU held that it is not direct discrimination for an employer to have a policy which prohibits employees from wearing anything manifesting a religious, philosophical or political belief in the workplace, if that policy requires “neutral” dress from all employees.
Indirect discrimination was also considered, and the CJEU noted that such a policy, whilst indirectly discriminatory, could be justified if it meets a genuine need of the employer. A policy of neutrality could amount to a justification, but the employer would have to demonstrate a genuine need for such policy.
However, the CJEU also noted that such a policy would need to be applied in a general and unconditional way. If the ban on religious signs were limited to only ‘conspicuous’ or ‘large-size’ manifestations of religion or belief such as a headscarf, this would have a more significant impact on those with beliefs requiring the wearing of a large sign such as a head covering, and may amount to direct discrimination on the basis that it is based on a criterion which is inextricably linked to a specific religion or belief.
This case is not binding on UK courts, but they may have regard to it when deciding claims brought under the Equality Act 2010. However, guidance from the Equality and Human Rights Commission (which takes into account domestic case law) states “it is very unlikely that an employment tribunal in the UK would accept ‘demonstrating neutrality’ as a legitimate aim capable of justifying a policy which banned all religious symbols or dress” and points out that the constitutional context in Britain is different to that of mainland European jurisdictions with strong constitutional principles of secularism. UK employers should therefore continue to be wary of implementing a dress code policy that relies on the aim of neutrality to justify indirect discrimination.
5. Driscoll (née Cobbing) v V & P Global Ltd and another EA-2020-000876 – LINK
In this case, the Employment Appeal Tribunal (“EAT”) held that a constructive dismissal can constitute an act of unlawful harassment under the Equality Act 2010 (“EqA”), in a departure from earlier case law.
The Claimant was employed as an executive assistant/operations manager by the First Respondent, a legal recruitment consultancy. The Second Respondent is the founder and Chief Executive of the First Respondent.
The Claimant claimed that on various occasions during her employment, the Second Respondent had made comments which constituted to harassment related to sex, race or disability contrary to section 26 of the EqA which caused her to resign. She claimed constructive dismissal, arguing that the dismissal itself was an act of harassment and therefore unlawful (she did not have the requisite two years’ service to claim unfair dismissal).
The Employment Tribunal (“ET“) struck out the constructive dismissal aspect of her harassment claim relying on an earlier EAT decision, Timothy James Consulting Ltd v Wilton [2015] ICR 764 in which it was held that a constructive dismissal could not amount to an act of harassment under the EqA.
The EAT held that the Timothy James case had been wrongly decided and had failed to consider the relevant EU directives and domestic case law. Taking a purposive approach to the EqA, and taking into account the relevant EU legislation, a constructive dismissal is capable of constituting “unwanted conduct” for the purpose of section 26 of the EqA.
The EAT is normally bound to follow its own decisions. This case is an example of one of the rare situations in which it can depart from prior EAT case law, namely where the earlier decision was “manifestly wrong”.
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