Employment tribunal and court judgments | April 2021

Fenniche v Kuwait Health Office and another

In Fenniche v Kuwait Health Office and another, the Employment Tribunal considered for the first time how a claim based on the EU Charter of Fundamental Rights (CFR) and general principles of EU law is affected by the European Union (Withdrawal) Act 2018 (EUWA 2018).

Mr Fenniche was a doctor at the Kuwait Health Office in London, which is part of the Kuwaiti Government. He brought claims for (amongst other things) race discrimination and harassment on grounds of race in November 2019.

The Kuwait Health Office argued that it had state immunity against Mr Fenniche's claims. Mr Fenniche contended that, following the Supreme Court's decision in Benkharbouche, state immunity should be disapplied as it was incompatible with Article 47 of the CFR. The Kuwait Health Office argued that, since EUWA 2018 provided that the CFR was no longer part of UK law from the end of the transition period, Mr Fenniche could not rely upon Article 47 to disapply state immunity.

The Employment Tribunal rejected this argument. It held that the CFR continues to be part of UK law in relation to proceedings which began before the end of the transition period and claimants in such claims can rely on the CFR to disapply Acts of Parliament. Since Mr Fenniche's claim was brought before the end of the transition period, Article 47 was applicable to his claims derived from EU law.

The State Immunity Act provides that sovereign states are immune from prosecution in relation to claims brought by employees of an Embassy if their role is sufficiently close to the governmental functions of the Embassy.  In this case, the Employment Tribunal found that, during his employment, Mr Fenniche's role was to protect the interests of Kuwati nationals referred to the Embassy for medical treatment and therefore was sufficiently connected to the governmental functions of the Embassy to attract state immunity. Therefore, most of his claims were barred.

Price v Powys County Council

 In Price v Powys County Council the EAT upheld the decision of an Employment Tribunal that it is not discriminatory for an employer to provide enhanced adoption pay when it does not provide enhanced shared parental pay.

The (male) claimant alleged that such a policy was direct discrimination on the grounds of sex, since a man on shared parental leave (SPL) would receive less pay than a woman on statutory adoption leave (SAL). However, the EAT found that the underlying purpose of SPL and SAL is materially different. The purpose of SAL goes far beyond the provision of childcare. The EAT, therefore, concluded that the Employment Tribunal had been right to determine that a woman on SAL was not an appropriate comparator for a man on SPL. The correct comparator was a woman on SPL and since a woman on SPL would have received the same pay as a man on SPL under the employer's policy, there was no sex discrimination.

Kelly v PGA European Tour

In this recent case, the Court of Appeal upheld the EAT's findings that an Employment Tribunal had erred in making an order for a claimant to be re-engaged into a different role where the former employer held a genuine and rational belief that the employee lacked the ability to perform in that role, and in circumstances where the claimant did not meet one of the key language requirements of the role. The Court of Appeal agreed with the EAT's decision that it was not practicable for the claimant to be re-engaged into that new role. 

Mr Kelly was the Group Marketing Director at the Golfing Association, the PGA European Tour. As so often occurs in organisations, there was a change in the leadership of the PGA, and some months later, Mr Kelly was dismissed by the new CEO on the basis of poor performance and disagreement over the CEO's plans.

A claim followed for unfair dismissal, which succeeded, resulting in the Employment Tribunal making an order for re-engagement. In deciding to make the order, the Employment Tribunal reasoned that there was no valid concern about Mr Kelly's ability to do the job, and that the employer's concerns as to trust and confidence were not sufficiently serious as to prevent re-engagement. The Employment Tribunal also identified one specific vacancy as the only realistic possibility for the claimant, that of Commercial Director (China). Despite the role having a requirement that the incumbent had to be able to communicate in both written and spoken Mandarin Chinese - skills which Mr Kelly did not have - the Employment Tribunal took the view that because Mr Kelly had some proficiency with Japanese, and was willing to learn Chinese, that it was practicable for the PGA to re-engage him into that role. 

Various appeals and cross appeals followed. The PGA successfully appealed against the order for re-engagement and the EAT clarified that reengagement was not appropriate where the employer genuinely and rationally believed (as was the case here) that the employee would not be capable of fulfilling the required role. Additionally, having found that a knowledge of Mandarin was a key requirement of the role, the Employment Tribunal erred again by ordering re-engagement where Mr Kelly was unable to communicate in Mandarin Chinese. The Court of Appeal endorsed the EAT's findings on both points.

Employers will be relieved to learn that this case does not change the principle that reengagement will rarely be appropriate where trust and confidence has broken down. In particular, it is even more reassuring that common sense has prevailed in the present case with the Courts confirming that it was not appropriate for an employee who did not speak Chinese to be re-engaged into a role which required a Chinese speaker.  If an order for re-engagement or reinstatement is made by an Employment Tribunal, an employer can refuse to comply with such order however an additional award of compensation would be most likely be made.

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