Employment tribunal and court judgments | March 2023

Lawyers speaking in court

Glover v Lacoste UK Ltd  

The recent case of Glover v Lacoste (UK) Ltd has highlighted the importance of carefully considering an employee's flexible working request at each stage of the process.

In this case, an employer's decision to reject an employee's flexible working request on appeal and suggest an alternative working arrangement, was deemed indirectly discriminatory because of sex, notwithstanding that the employer reversed their decision prior to the employee coming back to work. The Employment Appeal Tribunal stated that a final determination in respect of a flexible working request (which, in this case, was the determination of the employee's appeal) amounts to the “application” of the requirement in question, irrespective of whether the employee actually works under that arrangement.

This decision highlights the importance of properly and fairly considering flexible working requests from the outset, including whether any decision in respect of the same could be challenged as discriminatory, noting that a reversal of an earlier decision will not necessarily extinguish any associated liability.

For further detail of the facts of this case and a deeper examination of the topics raised, please see our article here.

Meaker v Cyxtera Technology UK Ltd

In this case, the EAT held that a letter was effective in dismissing an employee, notwithstanding that it had been marked 'without prejudice'.

The claimant in this case was employed in a manual role which, after his having suffered back injuries, he would have struggled to fully undertake.  HR had discussions with the employee about this and the employee himself acknowledged that he would unlikely be able to undertake heavy work of the nature required of his role again. It was highlighted to the employee that termination of his employment was being considered.

The employer sent a letter headed "without prejudice" to the employee stating there would be a mutual termination of his employment on a specified date, alongside other relevant details. The letter also offered an ex-gratia payment, conditional on the employee signing a settlement agreement.  No settlement was agreed and the employee brought a claim of unfair dismissal.

The EAT held that because the letter included details such as a termination date, payments and provisions for sending out the P45, it was sufficiently clear and unambiguous as to dismiss the employee for the purposes of the unfair dismissal provisions of the Employment Rights Act 1996.

The EAT also confirmed that the approach to identifying an employee's effective date of termination (the "EDT") is that where an employer dismisses an employee summarily and without giving the period of notice required by the contract, the EDT is the date of the summary dismissal whether or not the employer made a payment in lieu of notice.

This case is a good reminder that not everything marked 'without prejudice' will be genuinely off the record. There must be a genuine dispute in existence to be able to rely on without prejudice privilege. Employers should therefore be mindful of the way in which they draft such letters and obtain legal advice if they are unsure about whether privilege will apply.

McQueen v The General Optical Council

The claimant in this case brought a claim on the basis that he had suffered discrimination because of something arising in consequence of his disabilities (under section 15 of the Equality Act 2010). The claimant had dyslexia, symptoms of Asperger's Syndrome, and left side hearing loss.

The tribunal had to decide whether the claimant's inappropriate conduct - which was the subject of disciplinary action – was something arising in consequence of his disability. It was found that although the disabilities could cause the claimant to behave in a manner described as a 'meltdown', the behaviours in question did not arise as a result of his disability; instead, the behaviours were as a result of his short temper and his resentment at being told what to do.

The claimant appealed the tribunal's decision on the basis that his disability need not be the sole or even the main reason for his conduct in order for the treatment he received to be discriminatory, provided his disability was a more than trivial influence on his conduct.

The EAT acknowledged that the tribunal may not have adopted the best approach in considering the claimant's claims, but confirmed that the tribunal had not erred in law. The EAT stated however, that rather than focussing on the 'immediate trigger' of the claimant's behaviour, the following questions should be posed and addressed:

  • What are the disabilities.
  • What are their effects.
  • Which of the alleged acts of unfavourable treatment were in time and proven.
  • Was that unfavourable treatment "because of" an effect or effects of the disabilities.

      This case is helpful to some extent for employers as it shows that not all treatment of a disabled person will fall under the realms of s.15 of the Equality Act 2010 as "unfavourable". There must be a level of causation between the unfavourable treatment and the effects of the disability for a successful claim. Employers should note that all cases will be based on the respective facts and that the tribunal considered medical evidence carefully alongside the facts in this case. Employers should be aware that appropriate reasonable adjustments should be considered and implemented for any employees who have disabilities and that the defence for an employer under objective justification is whether it was a proportionate means of achieving a legitimate aim. The burden is on the employer to show any alleged unfavourable treatment meets this test.