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Frederick Place runs a monthly seminar, discussing developments in UK employment law. Our December Seminar will be held on Monday 9th from our office. We also distribute a monthly newsletter summarising recent cases.

If you are interested in attending this or any future seminars, or to be added to our mailing list, please get in touch.

DISABILITY DISCRIMINATION – Disability, Long-term effect

Parnaby v Leicester City Council (2019) Morning Star, November 1, EAT

P was dismissed in July 2017 after two periods of sickness absence from April to May 2016 and from January to July 2017. He suffered from a depressive disorder for which he had been prescribed anti-depressant medication on an intermittent basis from May 2016 and continuously from June 2017. P complained of disability discrimination. The issue was whether he was a disabled person for the purposes of the Equality Act 2010. The ET found that his impairment was not long-term. P appealed to the EAT.

Decision

  1. The appeal was allowed.
  2. The ET’s decision that P’s impairment was not likely to last 12 months or to recur was based on the fact that his dismissal had removed the cause of his stress. However, the dismissal was in itself an act of discrimination.
  3. The ET should have considered whether, prior to the decision to dismiss, it could well happen that the impairment would last at least 12 months or that it might recur. The ET had not answered that question and the matter was remitted to a differently constituted tribunal for rehearing.

EMPLOYEE INVENTIONS – Patents, Outstanding benefit to employer

Shanks v Unilever plc and others (2019) The Times, November 19, Supreme Court

S, an employee of U, devised the glucose sensor used by people with diabetes to measure the level of glucose in their blood. The rights to this patented invention were assigned to U.

Section 4 of the Patents Act 2004 states, in summary, that an employee who makes a patented invention which belongs to the employer from the outset is entitled to compensation if the patent was of outstanding benefit to the employer.

U’s total earnings from S’s patent amounted to £24 million. The hearing officer refused S’s claim to compensation on the basis that, having regard to the size and nature of U’s business, the benefit to U fell short of being outstanding. The High Court and the Court of Appeal upheld this decision. S appealed to the Supreme Court.

Decision

  1. The appeal was allowed.
  2. Where the work of an employee of the research subsidiary of a large group of companies resulted in patents which were assigned to the larger group for its benefit, the patents could be of outstanding benefit even though they generated only a small proportion of the group’s vast income.
  3. S was entitled to £2 million compensation.

EMPLOYMENT TRIBUNAL – Default judgment, Undefended claim

Limoine v Sharma UKEAT/0094/19/RN

L was employed by S as a nanny. She brought an ET claim for arrears of pay. S lodged an employer’s contract claim for expenses incurred in respect of expenses incurred on behalf of L. L failed to respond to the employer’s claim and the ET entered a default judgment in favour of S. L appealed to the EAT on grounds including the following:

  • The decision of the ET to enter a default judgment had been perverse or wrong in law because it had failed to consider whether L should be allowed to participate in the hearing of that claim.

Decision   

  1. The appeal was allowed.
  2. Where a claim is undefended, rule 21 of the Employment Tribunal Rules of Procedure 2013 does not permit a judge to enter judgment simply because the claim was undefended without giving any further consideration to the matter.
  3. Given that the case involved substantially overlapping claims, the judge had been wrong not to give any consideration as to whether there was a proper basis on which to grant judgment on the employer’s claim.
  4. The ET should have actively considered whether L should have been allowed to participate.
  5. the whole judgment would be quashed and both matters remitted to the same or a fresh ET.

Time limit for claim

Lowri Beck Services Ltd v Brophy (2019) Morning Star, November 15, EAT

B, an employee of L, suffered from severe dyslexia. He found it difficult to retain verbal instructions unless they were backed up with an additional explanation or were confirmed in writing. He was dismissed for gross misconduct following a report from a customer about his conduct. He received a letter on July 6 2017 which was dated July 4 and confirmed his dismissal on June 29.

B’s brother, who was not legally qualified, thought that B had been dismissed on July 6 because that was the date on which the letter was received. B started the early conciliation process on September 30 and the EC certificate was issued on November 13. B’s brother lodged his tribunal claim for unfair dismissal, wrongful dismissal and disability discrimination on December 5. The ET found that time should be extended because of a genuine misunderstanding on the part of B’s brother. L appealed to the EAT, arguing that ignorance of the relevant time limits was not enough.

Decision     

  1. The appeal was dismissed.
  2. B’s brother had not misunderstood the law. His misunderstanding was one of fact.
  3. It had not been reasonably practicable for B to lodge his claims in time because he had genuinely misunderstood the date when he was dismissed.

Witness order, Non-disclosure agreement

Christie v Paul and others UKEAT/0137/19/BA

C lodged a number of complaints with the ET, including sex discrimination, harassment, victimisation and automatic unfair dismissal. She applied for a witness order to compel a female colleague to give evidence. The ET refused the application without giving the respondent the opportunity to make representations. C stated that the colleague had previously stated her willingness to attend as a witness but had then refused after entering into a non-disclosure agreement with the employer. C appealed to the EAT, arguing that that the ET had been wrong in law in failing to consider the relevance of the colleague’s evidence, the necessity of making a witness order and in failing to have regard to the overriding objective.

Decision 

  1. The appeal was dismissed.
  2. The ET had done nothing more than insert a permissible procedural step into its consideration of the application.
  3. That procedural step was in accordance with the overriding objective and was consistent with a more general concern to do justice.
  4. The step was open to the ET in exercising its case management powers.

HEALTH AND SAFETY – Risk assessment, Manual handling

Dehenes v T Bourne and Son 2019 Scots Law Times 219, Sheriff Court

D, a driver and porter, claimed compensation from TB, his removal company employer, for injuries suffered as he was manoeuvring heavy machinery. He had been instructed to move analysing machines, each of which weighed 250kg, to Heathrow airport. D and three workmates, one of whom was a team leader, loaded each machine manually onto a pallet. D was walking backwards, holding a corner of a machine, when he tripped over a pallet. He let go of the machine, which fell onto his hand. He claimed that TB had breached its common law duty to take reasonable care, was vicariously liable for the team leader’s failure to carry out a suitable and sufficient risk assessment and that manual handling could have been avoided by the use of a hydraulic lift.

Decision 

  1. TB was liable.
  2. D was a credible and reliable witness who had proved that the incident happened as he described.
  3. The relevant risk assessment was superficial.
  4. The use of a hydraulic lift would have reduced manual handling to the lowest level reasonably practicable.
  5. It was not possible for D to rely on a direct breach of the Manual Handling Operations Regulations 1992 because of the Enterprise and Regulatory Reform Act 2013. However, it was still relevant to consider TB’s obligations under the 1992 Regulations in considering the scope and standard of care of duty owed.
  6. The manual handling operation in the present case plainly involved a foreseeable risk of injury. The risk assessment was neither suitable nor sufficient and TB had not taken reasonable care for D’s safety.
  7. There was no contributory negligence. The reality was that D had been placed in a very difficult position and had been fearful of losing his job if he did not continue.
  8. Compensation of £28,500 was awarded.

LEGAL PROFESSIONAL PRIVILEGE – Emails, Overheard conversation

Curless v Shell International Ltd [2019] EWCA Civ 1710, Court of Appeal

C was employed as a senior lawyer by Shell. He brought tribunal proceedings against the company in 2015, alleging unfavourable treatment and discrimination in relation to a protected medical condition. Shell started a redundancy review and C’s employment was terminated at the end of January 2017. C started a second set of proceedings claiming that the redundancy dismissal was a sham and that he had been victimised. He relied on an internal email between Shell’s lawyers and an overheard conversation in a pub in Fleet Street. Shell applied to have those parts of the claim struck out on the basis that they were privileged material. C argued that they disclosed an unlawful scheme to conceal victimisation and came within the “iniquity” exception to legal professional privilege. The ET found that Shell was entitled to claim privilege. This decision was overturned by the EAT. Shell appealed to the Court of Appeal.

Decision   

  1. The appeal was allowed.
  2. The email did not disclose any unlawful scheme. This was not overturned by pub gossip.

PHILOSOPHICAL BELIEF DISCRIMINATION – Vegetarianism

Conisbee v Crossley Farms Ltd (2019) Norwich Employment Tribunal, September 9

C, a vegetarian, resigned from his job as a waiter in a hotel owned by CF. He alleged that during his employment he had been subject to discrimination on grounds of religion or belief. He had been given snacks by colleagues which he was later told had contained meat. He argued that vegetarianism was entitled to the same protection as other well-established religious or philosophical beliefs. It was a serious belief integral to his way of life that it was wrong and immoral to eat animals and to subject them and the environment to cruelty and perils. The employer argued that C’s views were merely an opinion.

Decision 

  1. The complaint was rejected.
  2. Vegetarianism was not a philosophical belief deserving of protection.
  3. It did not concern a weighty and substantial aspect of human life and behaviour. It was simply a lifestyle choice and belief that the world would be a better place if animals were not killed for food.
  4. It did not attain the required level of cogency, seriousness, cohesion and importance, because there are different reasons for being vegetarian.

RACE DISCRIMINATION – Burden of proof

Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust [2019] EWCA Civ 498, Court of Appeal

I was the only black consultant in a hospital. His competence was investigated and he was put on restricted duties. He raised grievances but these were not properly investigated. He was eventually dismissed following a competence hearing. He complained of race discrimination and unfair dismissal. The ET upheld the complaint of race discrimination, based on the failure to investigate the grievances. On appeal by the employer to the EAT, the appeal succeeded. I appealed to the Court of Appeal.

Decision     

  1. The appeal was allowed.
  2. The EAT had not appreciate that the ET had applied a reversed burden of proof.
  3. An unsustainable reason had been put forward for the employer’s failure to deal properly with the grievances. The employer had stated that the reason for the failure was that I was trying to frustrate the competence inquiry.
  4. This was just the sort of case for which Parliament provided the statutory reversal of the burden of proof.

Harassment, Third party

Bessong v Pennine Care NHS Foundation Trust (2019) UKEAT/0247/18

B was a mental health nurse. He was assaulted by a patient on racial grounds. He brought claims of direct and indirect race discrimination and harassment. The claim of indirect race discrimination succeeded on the basis that the employer had failed to have a system for comprehensively reporting incidents of racial abuse. The harassment claim was rejected. The inaction of the employer, which had failed to take sufficient steps to prevent the harassment, was not “related to race”. B appealed to the EAT, arguing that there was no requirement, in a complaint of third-party harassment, that the employer’s conduct or inaction must be related to race.

Decision     

  1. The appeal was dismissed.
  2. The EAT was bound by the Court of Appeal decision in Unite the Union v Nailard that there was no liability under the Equality Act 2010 for failing to prevent third party harassment.

SEX DISCRIMINATION – Evidence, Partial disclosure of privileged advice

Kasongo v Humanscale UK Ltd UKEAT/0129/19/LA

K was dismissed after she informed her manager that she was or might be pregnant. She was dismissed after she had been employed for 11 months. She claimed that the effective cause of her dismissal had been her pregnancy or the prospect of her maternity leave. The employer argued that the reason for the dismissal had been K’s poor performance, work attitude and attendance issues. As part of standard disclosure, the employer disclosed a redacted dismissal letter drafted by the employer’s lawyers. K was able to read the redacted words and sought to use them at the hearing. The ET ruled that there had been no “cherry picking” by the lawyers in relation to legal professional privilege and K could not rely on the redacted words. K appealed to the EAT.

Decision     

  1. The appeal was allowed.
  2. The disclosed document was part of one transaction, which was legal advice about K’s dismissal.
  3. The redaction to the draft dismissal letter would be removed and the full letter would be included in the trial bundle at the full hearing.

WHISTLEBLOWING – Judiciary

Gilham v Ministry of Justice (2019) The Times, November 5, Supreme Court

G was appointed as a district judge in 2006. In 2010 significant cost-cutting reforms were announced. She raised concerns about the cuts, in particular the lack of appropriate and secure courtroom accommodation, the severely increased workload and administrative failings. These concerns were raised with leadership judges and senior managers and in a formal grievance. She complained that as a result of these disclosures she was subjected to a number of detriments including being seriously bullied, ignored and undermined by fellow judges and court staff. Her health was affected and she was signed off work from January 2013. The issue in the case was whether G, as a district judge, qualified as a “worker” or a person in Crown employment for the purpose of the protection given to whistleblowers. If a district judge did not qualify, a further question was whether that was discrimination in the enjoyment of the right to freedom of expression under the European Human Rights Convention.

An ET found that G was not a worker. This decision was upheld by the EAT and by the Court of Appeal. G appealed to the Supreme Court.

Decision 

  1. The appeal was allowed.
  2. There was no contractual relationship between a judge and the executive, nor between a judge and the lord chief justice.
  3. Judges were not in Crown employment. They were not employed by the Ministry of Justice and they were not civil servants or the equivalent of civil servants.
  4. The exclusion of the judiciary from the statutory protection afforded to whistleblowers was a breach of their right to enjoyment of the rights and freedoms under the European Con