Employment Law Monthly Update – July 2018

Jul 4, 2018

We are pleased to provide you with the Herrington Carmichael LLP employment law update for July 2018. 

This is a key note summary of some of the main developments in employment law in the last month.

  1. Equal pay claims and comparators

In the case of Reading Borough Council v James and others, a group of Claimants claimed that they were doing work of equal value to two male comparators. The Employment Tribunal found in the Claimants’ favour.  The Claimants claimed their losses from 2002 to the date of the judgment.  However, the Council challenged this on the basis that one of the comparators had been assimilated into a lower paid role and that the other had been promoted in 2006.

The Employment Appeal Tribunal (“EAT”) held that it did not matter that the comparator had been promoted, and that person was still the appropriate comparator. This means that where an appropriate comparator can be identified, at any point during an employee’s employment, they may be able to bring an equal pay claim. This will apply even if an alternative comparator can be found who would be more advantageous to the employer.  This improves the ability for Claimants to pursue equal pay claims, particularly where there are business changes over a longer period of time. 

  1. Information for the purposes of making a protected disclosure

Where an employee has made a protected disclosure under Part IVA of the Employment Rights Act 1996 (ERA), there are certain protections afforded to that employee which prevent an employer from subjecting the employee to any detriment.

In order to qualify for this protection, the disclosure must meet the requirements in s.43B of the ERA.  Unsurprisingly, for there to be a protected disclosure, there must have been a “disclosure of information”.

In the case of Kilraine v London Borough of Wandsworth, considered whether allegations raised by an employee can meet with this requirement. While it was held that in this case the allegations were not sufficient to constitute “information”, the judge did make it clear that “allegations” and “information” are not mutually exclusive.

In order for an allegation to contain information for the purpose of making a protected disclosure, the allegation will need to provide sufficient factual detail.  In this case the Claimant had made a number of allegations against the Respondent, including that the Respondent had failed in its duties in relation to bullying and harassment.  In this allegation the Claimant referred to “numerous incidents of inappropriate behaviour towards me”.  However the EAT held that this was not a disclosure of information as it was too vague.  

The EAT referred to an example given in an earlier case in which a worker in a hospital took their manager to a ward and pointed to some needles which were left lying around and said “you are not complying with Health and Safety requirements”. This therefore shows that “information” can be disclosed when supported by the context and wider circumstances in which the allegation is made.

Deciding whether an allegation is also information for the purposes of a protected disclosure will depend on the facts. However, it is something for all employers to bear in mind when allegations or issues are raised.

 

  1. Constructive dismissal rights can be revived by a “last straw” act

The Court of Appeal has confirmed, in the case of Kaur v Leeds Teaching Hospitals NHS Trust, that a series of events leading up to an employee’s resignation can amount to a repudiatory breach of the implied duty of trust and confidence, even where some of the acts have previously been affirmed by the employee.

Mrs Kaur resigned as a result of the dismissal of her disciplinary appeal.  Prior to this, there had been a series of events including an allegedly unjustified capability procedure, an altercation with another employee where Mrs Kaur alleged that the other employee assaulted her, and the disciplinary procedure following that incident.

The Court of Appeal confirmed earlier case law that an employee can bring a claim for constructive dismissal where there has been a last straw event which revives the earlier breaches.  Helpfully, the Court of Appeal gave guidance on the questions to be answered when deciding whether an employee has been constructively dismissed.  These include looking at the most recent act which has triggered the resignation and whether it is a repudiatory breach of contract in itself, or if it was part of a course of conduct which could collectively be considered a repudiatory breach of contract.

This case confirms the approach that Employment Tribunals will take in constructive dismissal claims and disapproves the decision in the case of Vairea v Reed Business Information Ltd from last year.  The Court of Appeal did confirm that the “last straw” could not be an innocuous act.  Therefore, in this case, the Court of Appeal held that Mrs Kaur had not been constructively dismissed as the disciplinary process and its appeal had been innocuous.

 

  1. Dismissals for misconduct without prior warning can be fair

In most situations where an employee has committed misconduct, rather than gross misconduct, the employee would be given some form of warning.  However, the EAT has held that, in certain circumstances, a reasonable response would be to move straight to dismissal.

In the case of Quintiles Commercial v Barongo, the Claimant had failed to complete compliance training.  This was treated as a disciplinary issue and he was dismissed for gross misconduct.  The Claimant appealed this within the Respondent’s internal process and the offence was re-classified as “serious” misconduct rather than gross misconduct.  The sanction of dismissal was, however, upheld.

The Employment Tribunal initially held that the dismissal was unfair as the Claimant did not have any disciplinary warnings in place at the time and that it was unfair to move straight to dismissal, where there was no gross misconduct.  However, the EAT disagreed with this approach and noted that there was nothing in the legislation to say that this would be unfair and so the Employment Tribunal had been wrong in concluding that the dismissal was unfair.  While it was noted that in most circumstances going straight to dismissal would be outside the range of reasonable responses, there were circumstances in which dismissal for serious misconduct could be fair.  This case has been remitted to the Employment Tribunal to be reconsidered.

For further information or to discuss the issues raised by this update, please contact Herrington Carmichael’s Employment Department on 0118 977 4045 or employment@herrington-carmichael.com.

 

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