Lessons learned from recent employment cases

In this article, we look at a selection of notable Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) judgments from the last few months and set out the lessons for employers. 

Mr Clifford had been employed by IBM and was absent for an extended period due to ill health. The parties entered into a settlement agreement where it was agreed that Mr Clifford would transition over to a disability plan whilst remaining in employment in exchange for waiving his rights to pursue specific claims, regardless of whether they were anticipated at the time of the agreement. Mr Clifford subsequently brought a disability discrimination claim against IBM.

In the case of Clifford, the Employment Appeal Tribunal (EAT) upheld the decision of the initial Tribunal to dismiss the claim on the basis it had been waived under a settlement agreement between the Claimant and IBM made several years previously. This decision was based on the precedent set by the Scottish judgement in Bathgate v Technip (for more details, see our blog).

This case has clarified that future claims can be validly waived in settlement agreements in England and Wales, including where employment is continuing. The key lesson for employers is to ensure that settlement agreements and the waivers within them are appropriately and clearly drafted. 

This employment status case arose out of a dispute over whether Mr Groom had a right to be accompanied at a disciplinary hearing, which is a statutory right available to employees and workers. Mr Groom was a Coastal Rescue Officer who was described as a “volunteer”, despite being remunerated for certain activities. He did not have a written contract of employment.

The EAT found that just because someone is a volunteer, it doesn’t mean they can never be an employee or a worker. The fact that Mr Groom was remunerated for certain activities was key and, on this basis, the EAT found that whilst carrying out work for which he was remunerated, Mr Groom was a “worker” (although it did not make a finding as to whether he was a worker in respect of his non-remunerated work). 

Importantly, the EAT did not find that volunteers will always be workers, and status cases will always be very fact-specific. This case is, however, a useful reminder of how complex employment status can be (an issue that the new Labour government has said it plans to address, more detail here).

Ms Parmar worked as a social worker for Leicester City Council and brought a claim of race discrimination after being subjected to a disciplinary investigation and subsequently dismissed. The ET found that the investigation into Ms Parmar’s conduct lacked substance and that there was “no credible explanation” for her treatment other than race discrimination. In a number of comparable situations, Ms Parmar’s line manager did not take disciplinary action against white staff or was slow to do so, compared with her moving quickly to suspend and investigate Ms Parmar.

Leicester City Council appealed, saying that the ET had erred in shifting the burden of proof such that it had to prove that it hadn’t discriminated against Ms Parmar, as opposed to her proving that it had. The EAT dismissed the Council’s appeal*.

This case reiterates the importance of conducting fair, unbiased and consistent disciplinary processes, and the risk of discrimination claims if employers fail to do so. In particular, there is a risk of an inference of discrimination being drawn by the Tribunal if there is a difference in treatment between employees which an employer is unable to explain to the Tribunal’s satisfaction.

*At the time of writing, Leicester City Council has lodged an appeal with the Court of Appeal.

This case serves as a reminder that an ET has no discretion to excuse named respondents from liability for their own acts of discrimination.

Ms Baldwin was a teacher who was disabled for the purposes of the Equality Act. She brought various complaints of disability discrimination during her short employment at the school and named another teacher and the headteacher as respondents to her claim. The ET upheld two allegations of discrimination against the school but dismissed the claims against the named respondents, despite the relevant acts being carried out by them. This was reversed on appeal, and the EAT found that the ET had no discretion to determine there was no individual liability when the acts complained of were found to be discriminatory.  

The EAT noted that whilst findings of discrimination against named individual respondents “may be harsh”, the legislation is clear in its meaning and effect when it comes to findings of contraventions under the Equality Act 2010.

Mr Bugden was a postal worker for Royal Mail who suffered from a number of conditions and had significant health-related absences during his employment. He was offered and refused reduced working hours and was subsequently dismissed. He brought a claim for disability discrimination and unfair dismissal.

The ET found that although Mr Bugden was disabled, he had not been unfairly dismissed. He appealed on the basis that the ET should have considered whether redeployment was a suitable alternative, by way of reasonable adjustment, despite him never raising it during the dismissal process. The appeal was upheld in part on the basis that redeployment should have been considered in the context of the unfair dismissal claim (but not in relation to the reasonable adjustments claim).

This case reminds employers that redeployment should be explored as a potential alternative to dismissal, especially in cases where absence is linked to health issues. Employers should consider all reasonable alternatives, including redeployment, even if an employee hasn’t specifically requested it.

In the context of making reasonable adjustments for a disabled employee, it may be appropriate to consider redeployment if a health issue is being caused or exacerbated by a particular working arrangement. Employers should not assume that, based on this case, a failure to take similar actions will not be considered a breach of their obligations under the Equality Act, as the case was decided on its specific circumstances.

This case provides an example of the issues that can arise during the disclosure process, particularly disclosure of information that may harm a party’s case.

12 former Virgin flight crew brought claims for unfair dismissal, and some for indirect discrimination, following a redundancy programme during the Covid-19 pandemic. Virgin’s initial disclosure contained redacted documents, including internal management documents relating to costs and savings which were relevant to the employees’ claims. The ET ordered Virgin to disclose unredacted copies.

Virgin appealed to the EAT, which held that the ET was right to find that the unredacted documents were relevant, that uncovering the redactions was not disproportionate, and the information could be revealed easily (given that there was only about 50 pages).

Parties to litigation are not only required to disclose documents on which they rely, but also those that adversely affect their case or support the other party’s case. When running a disclosure exercise and particularly when considering redactions, employers must keep this duty at the forefront and assess whether particular documents are likely to be of value to any of the issues in dispute.   

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, July 2024