In this month’s instalment, our team discuss recent findings by the Employment Appeal Tribunal that:
- Protection against dismissal can arise before an employee gives notice to take formal parental leave.
- An employer may terminate an employee fairly in exceptional circumstances without issuing a formal written warning or providing a right to appeal.
We also discuss a recent Supreme Court ruling that UK trade union law breaches workers’ rights.
1. Protection against dismissal can arise before an employee gives notice to take formal parental leave.
In Wright v Hilton Food Solutions, the Employment Appeal Tribunal provided clarity on the interpretation of whether an employee has “sought” to take parental leave for the purposes of regulation 20 of the Maternity and Parental Leave Regulations 1998.
Background
- The claimant worked for the respondent as a supply chain manager before being dismissed on the grounds of redundancy.
- Prior to being made redundant, the claimant had informally discussed with his colleagues, including his manager and HR, about taking unpaid parental leave to look after his disabled son.
- The claimant brought a claim alleging that the real reason for his dismissal was that he had sought to take parental leave.
- The respondent applied for his claim to be struck out on the basis that he could not have ‘sought’ to take parental leave, as the claimant had not formally applied for parental leave during his employment.
Findings
- The Employment Tribunal refused the strike-out request on the basis that the claimant had made informal enquiries regarding taking parental leave and made it clear on a number of occasions that he intended to take such leave.
- On appeal, the Employment Appeal Tribunal agreed, finding that employees can show they had ‘sought’ to take parental leave without a formal application.
Key takeaways
The protection offered under regulation 20 of the Maternity and Parental Leave Regulations 1998 arises even with an informal request or indication to make one.
2. An employer may terminate an employee fairly without issuing a formal written warning or providing a right to appeal.
In Matthews v. CGI IT UK Ltd, the Employment Appeal Tribunal held that in certain exceptional circumstances, an employer may fairly terminate an employee’s contract without issuing a formal written warning or providing a right to appeal.
Background
- The claimant was employed by the respondent as a director/consulting expert on 5G technology. He worked from home during the Covid-19 pandemic and was signed off sick from May 2020 due to Covid-19 symptoms.
- Around this time, the respondent discontinued the work on 5G technology and commenced a redundancy process.
- The claimant was put at risk of redundancy but refused to attend any consultation meetings due to his ongoing illness. The claimant raised a grievance after one of his colleagues was dismissed due to redundancy. His grievance was partially upheld on appeal, but it did not result in any action against his line manager, whom he accused of scapegoating him.
- The respondent made attempts to restart the redundancy process, but these were eventually abandoned due to the deteriorating relationship.
- In November 2020, the claimant began a phased return to work following a prolonged sickness. He was given a number of options, including remaining in his team or trying to find an equivalent role in a different team. The claimant did not agree to these and attempted to set conditions for a return to his team.
- The respondent created a new role for the claimant in a different team. The claimant refused, maintaining that both options presented to him were untenable. The respondent concluded that moving to the new role was the only viable option. However, the claimant stated this was a demotion and, as such, would be constructive dismissal.
- The respondent subsequently concluded that the relationship with the claimant had irretrievably broken down and the only remaining option was to terminate the claimant’s employment without a written warning, offering payment in lieu of notice and no right to appeal.
- The claimant brought tribunal proceedings alleging automatically unfair dismissal for making a protected disclosure, ordinary unfair dismissal and failure to make reasonable adjustments, among other claims.
Findings
- The Employment Tribunal held that the sole reason for the dismissal was that the respondent believed that the relationship between the respondent and the claimant had broken down irretrievably. Indeed, the respondent had persistently tried to find a solution for the claimant, including creating a role for him. However, the claimant turned down all options, leaving no viable alternative to the respondent but to terminate employment.
- The Employment Tribunal concluded this was an exceptionally rare case where it was within the range of reasonable responses to dismiss without a prior warning and without offering the claimant the opportunity to appeal.
- On appeal, the Employment Appeal Tribunal upheld the Employment Tribunal’s decision. It referred to Polkey v. AE Dayton Services Ltd, which addresses the fairness of a dismissal where the employer has failed to follow proper procedural steps. The case establishes that there are exceptional circumstances where an employer’s failure to follow procedure may not amount to an unfair dismissal if it can be shown that the procedural steps would have made no difference to the outcome.
- The Employment Appeal Tribunal found that the respondent made significant efforts to accommodate the claimant, but these were consistently rejected. Given that, the Employment Appeal Tribunal held that this situation fell within the exception set out in Polkey v. AE Dayton Services Ltd as any further procedural steps (including mediation) would have been unsuccessful.
Key takeaways
The case serves as a useful reminder that an employer can fairly dismiss an employee without following a fair procedure, but only in exceptional circumstances. As such, employers should be mindful that the likelihood of a similar outcome depends on the details of each case and does not mean they do not need to follow a fair procedure. Employers should approach such situations with caution and be aware that the burden of proof to justify not following the standard procedure is not easily met.
3. The Supreme Court finds that UK trade union law breaches workers’ rights.
The Supreme Court has found that section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 is incompatible with Article 11 – the freedom of assembly and association – of the European Convention on Human Rights.
Background
- The claimant was suspended after organising and taking part in lawful industrial action. During the suspension, she received normal pay but was prevented from working and earning overtime, which she otherwise would have done.
- The claimant brought a claim in the Employment Tribunal alleging that the respondent’s actions amounted to a detriment short of dismissal under Section146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
- Section 146(1) provides that workers have the right not to be subject to any detriment if they are subjected to it for the sole or main purpose of preventing or deterring them taking part in trade union activities ‘at an appropriate time’ or penalising them for doing so.
- Section 146(2) defines an appropriate time as outside the worker’s working hours or within working hours where the employer’s consent is given.
- Taking part in industrial action is therefore not included since the withdrawal of labour, to be effective, happens during working hours and without the employer’s consent.
- As such, the Employment Tribunal ruled that the protections do not extend to preparing for or taking part in strike action.
Findings
- The Employment Appeal Tribunal upheld the claimant’s appeal. It found section 146 of TULRCA incompatible with Article 11 of EHRC, which protects the right to freedom of peaceful assembly including trade union activity.
- However, the Court of Appeal overturned the Employment Appeal Tribunal’s ruling on the basis that TULRCA did not protect employees from action short of dismissal if they take part in strike action and could not be interpreted compatibly with ECHR.
- The claimant appealed to the Supreme Court. It found that the lack of protections under TULRCA for a worker facing sanctions for taking part in a strike encourages and legitimises unfair and unreasonable conduct by employers, which places the UK in breach of its obligations under Article 11 of the ECHR.
Key takeaways
Employers must ensure that workers are not treated less favourably for taking part in industrial action (other than by withholding pay during such action, which is permitted).