Employment tribunal and court judgments | July 2021

A v B – Vexatious Claimant has claims struck out

This claim concerned a dismissal of a specialty NHS doctor as a result of misconduct. The Claimant began persistently emailing colleagues (both of who were potential witnesses) and the NHS solicitor containing accusations of bullying and harassment amongst other claims. The Respondent made an application for strike out of the Claimant's claims and the tribunal found that this was not appropriate and instead made a series of orders designed to control the Claimant's correspondence.

Despite this, the Claimant continued to send vexatious emails and the Respondent made a second application to the tribunal which was upheld, and the Claimant's claims were struck out. This was because the emails were vexatious and designed to intimidate the witnesses and breached the order previously made, making a fair trial impossible. The Claimant appealed and the Employment Appeal Tribunal (EAT) upheld the tribunal decision to strike out the claim.

This is a useful judgment for any employers dealing with such vexatious or even abusive litigants and sends a clear message that Claimants are to act reasonably and responsibly, or risk having their claim(s) struck out.

Dobson v North Cumbria Integrated Care NHS Foundation Trust

This claim concerned an employee claiming indirect sex discrimination as a result of a change to working arrangements which meant the claimant was unable to comply due to childcare reasons.

Mrs Dobson worked as a community nurse on two fixed days per week but was dismissed in 2017 because she could not comply with the change made to her working arrangements.  The employment tribunal rejected the claims for sex discrimination and unfair dismissal as there was no evidence that the requirement to work flexibly placed women at a disadvantage in comparison to men. It was found that other female employees in the claimant's team were able to comply with the arrangement.

However, on appeal this was overturned as the tribunal identified that the employer had applied a provision, criterion or practice (PCP) by requiring the community nurses should work flexibly, including on weekends. This applied to the nurses generally and not just those on the claimant's team, which is relevant for the test pool, as it needs to be representative. Further, there is no requirement for the claimant to provide evidence showing the PCP puts women at a disadvantage in comparison to men because it is an accepted fact that, even today, women bear greater childcare burdens, which limits their ability to work certain hours - referred to as the "childcare disparity" by the EAT.

This case has been remitted to the tribunal and shows that whether a PCP in respect to flexible working is discriminatory does depend on the facts of each case but employers should be aware that requirements to work on different days could lead to a group disadvantage, and a claim for indirect discrimination.

Kelly v PGA European Tour [2021] EWCA Civ 559

The Court of Appeal confirms in this case that an employer’s belief that an unfairly dismissed employee’s lacks capability to perform the required role can mean it is not practical for the employee to be re-engaged. The Court also held that a tribunal is not required to consider vacancies in potentially comparable or suitable employment which had arisen but been filled prior to the remedies hearing.

When an employment tribunal upholds a complaint of unfair dismissal, the successful claimant may request that they are re-engaged with the employer, which would require an employer to engage the claimant in a comparable job (thus differing from re-instatement – which requires restoring the employee to their previous role). In this case PGA had an alternative role but it required the ability to speak Mandarin, which Mr Kelly did not speak. At first instance, the tribunal concluded that this, alongside PGA's view that there was a fundamental loss in trust and confidence, was not justifiable and upheld the re-engagement. On appeal however, it was found that Mandarin was essential to the job and it was impractical to require re-engagement.

Although there is popularity in the current climate for re-engagement, particularly as tactically a refusal to re-engage offers further award to the employee, it does not guarantee an employment tribunal will require this. This case highlights that if the employer genuinely believes there is a fundamental loss in trust and confidence, and/or indeed the employee is not qualified for a particular role in the alternative, re-engagement is not going to be enforced.