Employment tribunal and court judgments | November 2020

R (Pathan) v Secretary of State for the Home Department [2020]

Unfair treatment by Home Office of sponsored worker

In R (Pathan) v Secretary of State for the Home Department [2020] UKSC 41, the Supreme Court considered whether there was a duty on the Secretary of State for the Home Department to notify a skilled worker promptly of the revocation of his sponsor's licence and whether it was procedurally unfair not to do so.

Mr Pathan, an Indian national, had been in the UK since 2009 but initially as a Tier 4 (Dependant). Subsequently, he was sponsored and employed by Submania Ltd under Tier 2 (General) under the U.K points-based system for grant of leave to remain to non-EU nationals who wish to work or study here.

His leave expired on 15 October 2015. On 2 September 2015, he submitted an in-time application for further leave to remain in the UK under Tier 2 (General). At that time, Submania held a sponsor licence and had issued Mr Pathan with a valid Certificate of Sponsorship. However, whilst his application for further leave to remain was outstanding, the Home Office revoked Submania's sponsorship licence but did not inform Mr Pathan of this.

Mr Pathan's application for leave was subsequently refused and Mr Pathan sought an administrative review but the decision was maintained. He then sought judicial review. The application for further leave to remain failed because Mr Pathan had not fulfilled the conditions for the further grant of leave but the principle issue before the Supreme Court was whether the Secretary of State's failure to inform Mr Pathan of his sponsor's licence revocation was procedurally unfair.

All five members of the court agreed it was procedurally unfair to not have notified Mr Pathan promptly of the sponsor's licence revocation but there was no positive obligation to provide a period of time following such notification to enable an applicant to make an alternative application or otherwise act.

Chemcem Scotland Ltd v Ure

Employee's failure to return, without express communication, after maternity leave

In the unfair dismissal case of Chemcem Scotland Ltd v Ure, it transpired that the employees refusal to return to work after maternity leave was allowed and could be treated as communication of her decision not to return to work, even though nothing was said to the employer.

The reason the claimant refused to return was due to various breaches of contract by the respondent which transgressed the obligation of mutual trust and confidence between them. The EAT held that the ET was correct to treat the various repudiatory acts as sufficient grounds for the claimant's decision to rescind the contract and claim constructive dismissal and that, while ordinarily it was necessary to communicate a decision not to return to work, the circumstances in this case were such that the employer could not have been in any doubt that this was what the xlaimant intended.

Whilst a failure to appear might not normally amount to sufficient communication of acceptance, this was a fact-sensitive matter: "it was for the tribunal as finder of fact to judge whether her non-appearance was eloquent of an acceptance of the repudiatory breaches". As such, there was no need for the claimant to show express communication of acceptance.

IWGB v Secretary of State for Work & Pensions

Health and Safety detriments

The case of The Independent Workers' Union of Great Britain v The Secretary of State for Work & Pensions and Others discussed whether workers have protection from being subjected to detriments on health and safety grounds. It also covered issues such as the right to be provided with PPE, in the same way as employees.

It was found that workers should have the same protection as employees do. The IWUGB brought an application for judicial review on behalf of its members, who predominantly consisted of lower-paid workers in the 'gig economy'. This included taxi, bus, coach and private hire drivers that were at an increased risk due to Covid-19, which makes this case particularly significant.

The union sought to receive a declaration that the government failed to properly implement two EU directives on health and safety at work, as well as the provision of PPE. The UK legislation protected 'employees' rather than the broader 'workers' category which is in contrast to The Framework Directive (on health and safety at work) which states it protects employees and workers.

The High Court granted a declaration to the effect that the legislation did not give the same level of protection to workers as employees. This is significant as whilst the government has the chance to appeal this decision, if it chooses not to, it will have to introduce new legislation to extend the scope of these protection to include the broader category of workers.

This will have the potential to impact a large part of the workforce, particularly in public and customer-facing roles at this present time.