There have been some interesting employment law cases of late – we have reviewed and summarised some of them below.

Destroying of evidence:  Kaur v Sun Mark and others [2024] EAT 41

This case concerned whether a remedy claim ought to have been struck out when it materialised that the Claimant had destroyed evidence and lied about doing so.

The Claimant succeeded partly in their initial sexual harassment, victimisation and discrimination claim at the ET. Included in the evidence presented by the Claimant was a notebook she had kept documenting the events and a recording she had made personally. The Respondents had asked to inspect these sources of evidence. The Claimant said she destroyed the evidence after the Tribunal claim.

Following this statement from the Claimant the Respondent applied to strike out the remedy claim which had been scheduled to hear the victimisation element of her claim. Given that the evidence had been destroyed or was claimed to have been destroyed by the Claimant, the Tribunal held that a fair hearing would not be possible, and the claim should be struck out. This was appealed by the Claimant. 

On appeal, the decision was upheld by the EAT. A proportionate and appropriate remedy was required following the conduct of the Claimant and the Tribunal were viewed as being correct when determining a strike out of the claim to be an appropriate course of action under the circumstances.

Takeaway points:  Always ensure that you have the evidence you claim to have during the course of legal proceedings and do not destroy it until the full proceedings (including any related remedy hearing and appeal process) has concluded.

Whistleblowing: Nicol v World Travel and Tourism Council and others [2024] EAT 42

This case concerned the issue of whether the Appellant had been unfairly dismissed where the Respondents knew of the facts behind the Appellant’s whistleblowing but not the significance of the issues at play. 

The Appellant was employed by the Respondent from 2011 until his termination in October 2019. At the time of his termination, he was employed as Vice-President of Communication and Personal Relations. 

The Appellant argued that after he made several protected disclosures to the Respondent he was dismissed. Initially, the Tribunal held that he was not unfairly dismissed or treated detrimentally because of the disclosures made. This prompted the appeal. 

 The EAT dismissed the appeal. The Appellant tried to argue that a person need not be informed of the detail of a protected disclosure made by another to another for it to be classed as a protected disclosure to that individual too. 

The EAT held that if a person only knew that a disclosure had been made between other parties but did not know the details of the disclosure then it could not count as being one made to them. Some knowledge was required of the concerns being voiced by the discloser. 

Key points to note: If you are making a disclosure at work it is recommended that you seek advice to ensure that the disclosure is protected.  Employers should ensure that policies and training on whistleblowing and disclosures are up to date.

Discrimination – reverse burden of proof? Atif v Dolce & Gabbana [2024] EAT 47

This case concerned the issue of whether the reverse burden of proof should be applicable in a racial discrimination claim. The Appellant was an Algerian woman who spoke Arabic. Despite the Respondent being an Italian company, the Appellant worked for the UK subsidiary associated with them.

The Appellant worked for the Respondent and raised a grievance during her employment. This was not followed up by the Respondent. in her grievance she had mentioned sick day entitlement. The Appellant was required to take time off sick after those dates had been refused as holidays. 

The Appellant was ultimately dismissed on grounds that she had exploited the sickness policy of the Respondent. The Appellant attributed her dismissal to race discrimination, arguing that she had been treated detrimentally compared to her Italian counterparts. The Appellant’s boss was Italian, and the Appellant was said to have “problems” with her. She raised her claim with the Employment Tribunal. 

Her claims were dismissed by the ET as insufficient evidence had been presented to support the race discrimination element. Therefore, the burden of proof remained imposed on the Appellant to say that discrimination of this nature took place. There was no requirement for the Respondent to prove that discrimination was not a motivation in the dismissal of the Appellant. This decision was appealed. 

The EAT disagreed with the initial decision and held that the facts presented could amount to discrimination. They drew attention to the following points:

  1. The senior staff whom the Appellant reported to were all Italian. 
  2. The timing of her disciplinary process was near when she raised her grievance. 
  3. The aforesaid grievance had not been completed. 
  4. The Appellant’s manager had taken sick days at similar times to other absences in the workplace. 

The points above meant that in the opinion of the EAT the burden of proof had shifted onto the Respondent. However, the claim was dismissed as there remained no evidence of any race discrimination in the Appellant’s claim. 

Detriment as a result of trade union activities: Mercer v Alternative Fuel Group [2024] UKSC 12

In this claim the Claimant was a UNISON representative and employed as a support worker by the Respondent. She planned and participated in a workplace strike. This resulted in the Respondent suspending her on basic pay and issued her a written warning. 

The Claimant suffered financial loss (overtime) and raised a claim under section 146 of the Trade Union Labour Relations (Consolidation) Act 1992 in relation to detriment suffered for organising and participating in a strike. She believed the main motivation behind the suspension was to prevent her from taking part in trade union activities during the working day. 

This case was heard throughout the court system until it finally reached the UK Supreme Court. In their judgement the UKSC held that the 1992 Act did not apply in this case as section 146 only related to industrial action which did not take place during regular working hours. The exact wording in the Act is “at an appropriate time.” This was interpreted as aforesaid. 

The UKSC went further in their judgement. They stated that the law in the 1992 Act meant that unfair and unreasonable conduct of an employee lacked protection in terms of the measures available to employers and as a result mean the UK were in breach of Article 11 of the European Convention on Human Rights

The domestic law in its current state is therefore incompatible with European law and it will be for Parliament to rectify this through legislative amendments. Interestingly, the EAT in their judgement for the appeal case suggested that section 146 could be compatible if the “appropriate time” aspect were to be defined as including all working hours when a worker is involved in industrial action. It remains to be seen how the UK Government propose to address the issue.  

TUPE Transfer: changes to contract post transfer: Lewis v Dow Silicones UK Limited [2024] EAT 51

The Claimant in this case began their employment with NPower in June 1999 as an Operations Technician. The Respondent purchased the Combined Heat and Power Plant where the Claimant worked in March 2013. His employment transferred under TUPE Regulations. 

In March of 2017 the Respondent began insourcing elements of their business. This reflected a service provision change under TUPE which affected the Claimant. Changes were proposed to working arrangements and Safe Work Permits. The Claimant argued that these were detrimental to his work.

This resulted in the Claimant resigning from his position. He argued that he was victim of constructive dismissal and that his dismissal was automatically unfair due to the fact it was caused by TUPE.

The Employment Tribunal initially dismissed the claim on the basis that the Respondent was “entitled to introduce the changes” and the TUPE changes were not reflective of a “substantial change in working conditions to (the Claimant’s) material detriment.”

The first appeal in the case (in 2020) was upheld on the basis that just because the employer had a right to introduce a change in working conditions does not mean it is not a change in accordance with the aforesaid test.  Additionally, the fact that the Claimant provided many hours of cover through voluntary overtime before the TUPE did not mean that the introduction of additional hours of work was not to his detriment. This led to the case being remitted.

The second Hearing was heard in June 2022. Here it was held that the reason for the Claimant’s dismissal was “some other substantial reason of a kind justifying dismissal” and that the Respondent had acted reasonably in dismissing the Claimant. The Tribunal said that there was an economic, technical or organisational reason for the dismissal. Therefore, the claim for unfair dismissal was dismissed. This was appealed to the EAT.

The EAT were asked to consider whether the Tribunal had authority in the previous hearing to find that the reason for dismissal was economic, technical or organisational on the basis of the pleadings. It held that there was no basis for the ET finding the principal reason for dismissal to be anything other than the TUPE, nor was there an economic, technical or organisational reason. On this basis the appeal was allowed, and the matter remitted to a new Tribunal.  

Employers should always obtain expert advice when dealing with transfers to ensure that they don’t fall foul of the TUPE Regulations (both prior to and after the transfer).

And finally…….Changes to TUPE Regulations?

The Government has commenced a consultation (until June) on plans to change the TUPE Regulations. The consultation will cover the following issues to be addressed and clarified:

  • That TUPE should apply to employees only and not to workers. An anomaly has arisen in recent years because TUPE is stated to apply to ‘employees’ but the definition of ‘employee’ under the Regs is different / wider than that contained in Employment Rights Act 1996 and other UK employment legislation. This led to an ET case finding that TUPE could also apply to workers. 
  • If a business transfers to multiple buyers the assigned employees cannot have their employment split between them, and full employment of an employee must transfer to one transferee. The Government’s proposal is that transferees should agree who should take on each employee. 

We will keep you updated with any further developments.

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