We have reviewed the top case law in Great Britain 2023 providing key learnings for employers, reducing the risk of businesses making the same mistake as others have. Learnings for employers are clearly outlined at the end of each case law.
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Case law in Great Britain 2023
Mackenzie v The Chief Constable of the Police Scotland 2023
The Employment tribunal allows
for the hearing of mental health discrimination case after the time limit has
been surpassed.
Background of claim
Laura Mackenzie (the claimant)
was selected for a position as a probationary officer with Police Scotland (the
respondent). She had successfully passed through the selection process and was deemed
to be an impressive candidate. The claimant’s onboarding progressed to an
advanced stage and she received a congratulatory call from an inspector, and arrangements
for a uniform fitting.
In the later stages of the onboarding process, an occupational health
meeting occurred to evaluate the person’s physical and mental health. During
the meeting the claimant disclosed she was taking antidepressants for anxiety
and depression. The claimant was then
informed of the respondent’s policy, that stated police officers could not be employed
within two years of last taking antidepressants. As a result, the claimant had
her job offer withdrawn.
The claimant had been transparent
about her health during the recruitment process and was left heartbroken when
she received the withdrawal letter and the claimant felt she was discriminated
against, leading to her raising a complaint against the respondent.
Another issue within this case
was time limitations. The claimant asserted she wasn’t aware of the time limits.
Furthermore, adding to the delay was the impact of the decision on her mental health,
the pandemic, financial resources, and problems finding representation as well
as not having confidence in her claim.
The tribunal found that there was
no evidence of the impact of the decision on mental health nor, financial
resources to cause the delay. However, accepted that the claimant struggled
with representation but didn’t feel it could be accepted across the whole
duration from April 2020 and October 2021.
Additionally, the tribunal did not accept the issue of the pandemic.
It was stated the reasons for the
delay were due to the claimant being unaware of the time limit and her
reluctance to proceed without confidence from an advisor. The claimant gained
confidence following an article in the newspaper.
Tribunal result
The tribunal found that the
claimant, whilst intelligent and educated, she was also wronged by the
respondent and posed the question of ‘was it reasonable for the claimant in
this case to be unaware of the time limit? The question itself accepts that she
was unaware of it.’ The tribunal ruled it was reasonable for the claimant to be
unaware of the time limits, with her efforts to seek advice having not been
successful.
The tribunal found issues with the
respondent’s policy of deferring or withdrawing a candidate’s offer due to
mental health conditions, this led to the tribunal concluding there is jurisdiction
to hear the claimant’s claim.
Learning for employers
This case highlights the ongoing
issue of discrimination against individuals with mental health conditions in
the workplace as well as adjustments a tribunal might make for those with
mental health conditions. Employers should be looking at ensuring all policies
are fair and legally compliant, updating any policies that unfairly
discriminate against individuals with mental health conditions.
Usdaw & Others v Tesco Stores Ltd
Union proceeding to Supreme court
to prevent Tesco’s scheme of ‘fire and rehire’ to remove long-term financial
benefit known as ‘Retained Pay’.
Background of claim
Usdaw is the union for
shopworkers and in this case, was represented by Thompsons Solicitors. This
case has now reached the Supreme Court in the UK. The challenge faced in this
case was Tesco’s decision to ‘Fire and rehire’ employees to change their
employment contracts. Tesco was seeking to remove the employee financial
benefit of Retained Pay.
The Retained Pay was an incentive
used by Tesco to remain with the company during certain conditions. Tesco
agreed on this incentive with employees back in 2007, as they need specific
employees to remain in their roles for operational productivity. In specific cases,
it was offered so employees didn’t claim redundancy and to accommodate the
possibility of relocating.
The Court of Appeal overturned
the decision made by the High Court, which granted an injunction preventing
Tesco from moving forward with tactics of ‘fire and rehire’ to remove employee’s
rights to Retained Pay. They overturned the decision due to the understanding
that Retained Pay was not “guaranteed for life” and “permanent”, as the
collective agreement only guaranteed this incentive for the duration of a
particular contract of employment. Referencing
the agreement there was no mutual intention for the Retained Pay to continue
past the current contracts.
This decision removed the legal
implications stopping Tesco from serving notice on the contracts and removing the
Retained Pay benefit. After this decision, the union decided to advance the
issue to the Supreme Court.
Tribunal Results
As this case has been uplifted to
the Supreme Court, we await the final decision, but the Supreme Court will now
look at how the employment contract should be interpreted specifically looking
at Retained Pay. Reviewing if “permanent” refers to the employee’s tenure in
their current role or only for the duration of this specific employee contract.
They will also review the fairness and equity in employment practices, such as
‘fire and rehire’, taking into account employer rights to amend contracts and the
protection of employees’ rights and benefits.
Learnings for employers
The case of Usdaw & others v Tesco Stores brings many
learnings for employers, and the learnings may continue to come as the Supreme
Court publishes its decision. The case highlights the importance of clear and
precise language within contracts of employment, especially the duration of
employee benefits. Further to this, the case pinpoints the risks associated
with employers using ‘fire and rehire’ tactics to modify employee contracts,
especially benefits. These tactics may create a hostile environment damaging
the employer–employee relationship.
Furthermore, this case acts as a
reminder of the evolving landscape of employment law and the duty employers
have to keep up to date with current laws and regulations. Finally, the
situation Tesco now sees itself in, emphasises the importance of understanding
the long-term consequences of employment decisions. Companies should be looking
at it not solely from a financial and legal perspective, but employee morale
and company reputation perspective as well.
Ahmed v National Westminster Bank PLC
Employee wins case for unfair dismissal but has award both basic and compensatory reduced by 100%. Where did the employer go wrong?
Background of claim
The claimant had Bipolar Affective disorder and defined as disabled under section 6 of the Equality Act 2010. The reason for dismissal by the respondent was a breakdown of relationships. The Claimant had 3 different line managers and various complaints from other colleagues.
Further to this, the claimant was operating two external businesses, one which had significant reputational risks to the respondent. The claimant “agile love business” was linked to his LinkedIn account and contain sexually explicit materials including the claimant, causing an impact on the claimant’s relationship with the respondent and colleagues. The claimant failed to gain permission for the external businesses and used the respondents address for one of the businesses.
The claimant had consistently resisted and strongly challenging any management instructions, the tribunal found it was reasonable to have dismissed the employee not on conduct but a breakdown of relationships. It was not reasonable for the respondent to not carry out a full investigation into the unattributed comments and information gained from adhoc conversations.
Additionally, the claimant was informed not to enter the respondent’s site but he parked two caravans on the site and was aggressive towards Guardians. He previously had threatened another employee stating he would “cause gross misconduct against him”.
The respondent had decided not to carry out another investigation, after the claimant failed to engage with the previous meeting, however he was sent a report of this meeting. The claimant was not informed of his potential dismissal or invited to a meeting in order to discuss the reasons for dismissal. This meeting could have occurred over video if the respondent found the claimant to be aggressive.
The respondent detailed reasons in the dismissal letter included, “vocally criticising” towards contractors and colleagues. The tribunal agreed with the contractors due to a letter however dismissed towards colleagues as a lack of evidence. Other details included repeated lateness to work, spreading rumours of redundancy, repeated contacting colleagues outside working hours and a failure to engage with colleagues and managers in a professional manner.
Furthermore, the claimant was not given the right to appeal the decision.
Tribunal Results
The tribunal deemed the dismissal unfair, due to the respondent’s failure to follow correct processes including a letter inviting him to a meeting detailing that he may potentially be dismissed, a meeting or the right to appeal the decision.
However, the tribunal did out line that “the question we must answer is not what we would have done, but what this respondent would have done had it followed the correct process.” Concluding that if the respondent had followed the correct process, the dismissal would have been a fair dismissal.
This resulted in the tribunal finding it reasonable to reduce both the basic award and contributory award by 100%.
The claimant had also claimed direct discrimination and discrimination arising from disability, the tribunal dismissed both these claims as the respondent did not act unfavourably towards the claimant as of his disability.
Learnings for employers
The tribunal found the dismissal to be unfair due to failure to follow the correct processes. Including not inviting the claimant to meetings, not providing him the chance to defend himself and not offering the chance to appeal the decision. Employers should also have clear policies regarding external businesses activities and make employees aware of these policies.
Employers must investigate complaints fully, which is an essential part of the disciplinary process especially if it forms the foundations of the employee’s dismissal.
Fundamentally, its clear if businesses do not follow the correct procedures and processes it will be an unfair dismissal.
We have also covered case law in Northern Ireland 2023, which looks at Agnew v PSNI be sure to give it a read.
