Employment tribunal and court judgments | April 2024

Welcome to our monthly update, where we share recent employment cases of interest and the practical considerations for employers.

Supreme Court rules in favour of workers on the compatibility of Trade Union legislation with European Convention of Human Rights

The Claimant was employed as a support worker and involved in planning and taking part in lawful strike action. After the strikes ended, she was suspended.

The Claimant complained to the Employment Tribunal, that her suspension amounted to a detriment imposed for the sole or main purpose of preventing her from taking part in trade union activities or penalising her for having done so, in breach of section 146 of Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

However, the previous caselaw established that taking part in industrial action was not one of the activities protected by s.146 TULCRA.

This section only applies to activities outside of working hours or done with the employer’s consent.

The result is that, although employers are prohibited from dismissing employees for taking part in protected industrial action under section 238A of TULRCA 1992, s.146 does not prohibit employers from subjecting employees to a detriment (short of dismissal) for having done so.

On assessing the case law, the Employment Tribunal (ET) could not interpret s.146 as including  protection from detriment for taking part in industrial action.

However, it did go on to look at Article 11 of the European Convention of Human Rights (ECHR) (related to freedom of assembly) and established that a lack of protection from detriment for participating in industrial action was incompatible with Article 11.

The ET’s decision was overturned on appeal to the Employment Appeal Tribunal (EAT), which interpreted the wording of s. 146 as compatible with Article 11 by inserting additional wording.

The Court of Appeal declined to make a declaration of incompatibility with Article 11. Although the Court agreed with the lower courts that s.146 might breach Article 11 rights, an attempt to interpret section 146 compatibly with Article 11 would result in the Courts carrying out the role of Parliament.

The Supreme Court allowed the appeal, making a declaration that the failure of s. 146 of TULRCA to provide any protection against sanctions short of dismissal for union members taking part in lawful industrial action is incompatible with Article 11 of the ECHR.

Employers who face industrial action should be careful with their treatment of workers who take part. As we have seen in this case, ‘detriment’ includes suspension, but it might also include withdrawing discretionary benefits or paying special bonuses to employees who continue to work during strikes.

We will keep an eye on legislative developments in light of the Supreme Court’s ruling and await action (if any) from Parliament.

The Claimant brought a claim in the Employment Tribunal (ET), against her employer and other individuals, for sexual harassment, sex discrimination and victimisation. The ET found for the Claimant that she had been subject to unwanted sexual attention.

Before the remedy hearing, one of the Respondents sought to have a notebook and mobile phone forensically examined, as the Claimant had relied on these in her evidence given at the merits hearing.

These requests were resisted by the Claimant and the ET made no order for inspection.

The relevant Respondent appealed and was granted a hearing to assess the evidence. At the hearing, the Claimant stated that her husband had destroyed the notebook and that she told her legal representative that she had destroyed the phone.

The ET found that it was no longer possible to have a fair remedy hearing given that the key information was no longer accessible. It ruled to strike out the claim.

  • Disclosure is an important obligation in any proceedings and both parties are under a duty to disclose all documents in their possession or control that are relevant to the issues. These might assist a party’s case, adversely affect their case, or assist the other party’s case.
  • A document is anything in which information is recorded, not just information on paper. This includes emails, databases, computer records, recordings of audio communications, text and instant messages and posts on social media.
  • The duty of disclosure is ongoing so any documents that come to light after previous disclosure should be exchanged with the other party and the tribunal in a supplementary bundle.
  • The ET has the power to strike out a claim if the manner in which the proceedings are conducted was scandalous, unreasonable, vexatious or if it was no longer possible to have a fair remedy trial and, as we can see in this case, destroying pertinent evidence (even after an issue in the case has been decided) may well amount to such prohibited conduct.

The Claimants were employed by British Airways (BA) as cabin crew whose pay involved a number of different allowances, over and above basic pay. A dispute arose as to which of these allowances should be paid during periods of statutory holiday.

At first instance, the Employment Tribunal (ET) held that a number of allowances, including meal allowances, should have been included within the calculation of holiday pay for statutory leave.

The ET also considered whether the Claimants’ claims had been brought in time. In reaching its decision on timing, the ET was bound by the Employment Appeal Tribunal’s (EAT’s) decision in Bear Scotland Ltd v Fulton that a gap between two deductions of more than three months would break a ‘series of deductions’, so that the time limit for claiming in respect of a series of deductions is three months from the last deduction in the series.

The ET dealt with each type of allowance separately and found that BA could designate, and had in fact designated, the first tranche of leave taken by each individual in each leave year as statutory leave.

BA appealed against the ET’s findings in respect of whether meal allowances should be included within statutory holiday pay. The Claimant cross-appealed, including against the ET’s approach to the limitation period and whether there was a ‘series of deductions’, taking into account the subsequent decision of the Supreme Court in Chief Constable of the Police Service of Northern Ireland v Agnew.

The EAT allowed both BA’s appeal and the Claimants’ cross-appeal. In light of the decision in Agnew – which held that there was no principle that a gap between successive deductions of more than three months would automatically break the series – the ET’s findings in respect of the timing issue was overturned.

Also, the EAT concluded that, had the ET applied the law correctly to the facts that it had found – that all the deductions related to holiday pay, and all arose because of a failure to factor in one or more allowances that should have been included – it would have been bound to conclude that the requirement for the deductions to be ‘sufficiently similar’ was satisfied.

A conclusion to this effect was substituted but the question of whether there was a sufficient connection in time between the deductions was referred back to the ET.

However, the EAT did comment that, when considering time in holiday pay cases, proper account would need to be taken of the fact that there will inherently be gaps in time between employees’ holidays.

The EAT went on to consider whether BA could designate which particular days represented statutory, as opposed to contractual, leave.

The EAT expressed (albeit in a non-binding comment) that if there was such a power, whether under contract or under statute, it could not be relied upon to make the worker’s position in relation to a time point less favourable than it would have been, had it not been exercised.

Conversely, the EAT did reject a submission by the Claimants that they, as part of their claim, to designate which leave was which. The result was that all leave days were to be treated equally as part of a composite whole.

Perhaps the most significance aspect of this finding, for most employers, is that the ET’s decision that any series of deductions would be broken by a gap of three months or more could no longer stand.

Additionally, employers must be clear about how they designate statutory and contractual leave to be taken (if there is any differentiation) and which allowances/other elements of pay are considered for holiday pay purposes.

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