Employment Law Update – August 2023

The last few months have seen yet further updates in the use of agency workers to cover strike action, and new flexible working legislation receiving royal assent. We explore these and further significant updates below.

Case Law Updates

Lovingangels Care Ltd v Mhindurwa 

Facts:

Mrs Mhindurwa (a live-in carer) was placed at risk of redundancy during the pandemic. She asked to be furloughed as an alternative. The employer, Lovingangels Care, refused this request, and subsequently made her redundant. 

Outcome:

The Employment Appeal Tribunal (EAT) upheld the Tribunal decision that the dismissal was unfair.

Even though the Tribunal found that there was a genuine redundancy situation, the employer had failed in its duty to consider all reasonable alternatives to the redundancy and therefore the dismissal was unfair. 

Comment: 

Whilst furlough is no longer an option for consideration, this case highlights the importance of considering all alterative options before making a decision to dismiss by reason of redundancy. Mrs Mhindurwa did not have to show that she would have been furloughed; she simply had to show that the Lovingangels had failed to consider this alternative option. They did not, and thus the dismissal was unfair.

Alecdo Orange Ltd v Ferridge-Gunn

Facts: 

Shortly after her employment commenced, performance issues were raised about Ms Ferridge-Gunn by her line manager (Ms Caunt) and managing director (Mr Boardman). The following week, Ms Ferridge-Gunn told Ms Caunt that she was pregnant. 

Ms Caunt told Mr Boardman that Ms Ferridge-Gunn had misled him by not processing some documents. This was inaccurate as Ms Ferridge-Gunn had been absent due to morning sickness, and therefore unable to process the documents.

Ms Ferridge-Gunn was dismissed soon thereafter for performance. Mr Boardman asserted that the reason for her dismissal was because she had misled him.

The Tribunal upheld Ms Ferridge-Gunn’s claim for pregnancy discrimination on the basis that Mr Boardman had relied upon Ms Caunt’s advice to dismiss Ms Ferridge-Gunn, and that Ms Caunt’s advice had been influenced by Ms Ferridge-Gunn’s pregnancy.

Alecdo Orange Ltd appealed on the basis that Mr Boardman’s decision to dismiss was separate to Ms Caunt’s provision of information to him, and the Tribunal had failed to consider whether Mr Boardman’s decision was influenced by Ms Ferridge-Gunn’s pregnancy. 

Outcome:

The EAT upheld Alecdo’s appeal. The Tribunal had failed to consider whether the decision to dismiss was motivated by Ms Ferridge-Gunn’s pregnancy. 

The Court of Appeal decision Reynolds v CLFISconfirms that the person alleged to have carried out the discriminatory act must have been motivated by the protected characteristic, and the Tribunal had not been referred to this decision in making its finding. 

Comment: 

This case is a reminder that the discriminatory actions complained of must be motivated by the protected characteristic. Careful consideration should be given to events as it may be the case that an employer can properly argue that a decision to dismiss a pregnant employee was unconnected with the pregnancy.  However, employers would be well advised to take advice in such a situation, as it could be very costly.

Jhuti v Royal Mail

Facts: 

Ms Jhuti made protected disclosures (“blew the whistle”) which resulted in her line manager raising performance issues, and bullying her. Another employee who had no knowledge of the protected disclosures, was appointed to decide whether Ms Jhuti’s performance was adequate.

Ms Jhuti was signed off sick with work-related stress, and unable to present her case to the decision-maker. As such, the decision-maker based their findings on the line manager’s case only, and concluded that Ms Jhuti should be dismissed.

Ms Jhuti complained of both detriment for making her protected disclosures, and unfair dismissal for making protected disclosures. 

The Tribunal found, in relation to the latter complaint, that the decision-maker had genuinely believed that her performance was inadequate and had not based the decision to dismiss on her performance. 

Outcome: 

The case was appealed up to the Supreme Court. The Supreme Court unanimously held that where the real reason for the dismissal (i.e. because of a protected disclosure being made) is hidden from the decision-maker by a person “in the hierarchy of responsibility above the employee”, the dismissal is unfair, even where the decision-maker truly believed and relied upon the invented reason.

Ms Jhuti was awarded over £2,000,000 compensation. 

Comment: 

When deciding to dismiss an employee, employers must be careful to ensure that all relevant information has been considered and that the reason purported for the dismissal is backed up with evidence. Where an individual relies upon another’s reasoning, that reasoning should be explored as fully as possible before any decision is made. Attempts should always be made to take the employees’ version of events, even where they are unwell (for example, by providing written comments). 

This case is quite similar factually to Alcedo Orange explored above yet the Supreme Court in Jhuti has taken a very different view to the EAT in Alecdo Orange. It will be interesting to see whether this develops, if any discrimination cases where the reason for dismissal is hidden from the decision maker are taken to the Supreme Court. 

Connor v Chief Constable of West Yorkshire Police 

Facts: 

Regulation 14 Working Time Regulations (WTR) provides the methodology to calculate holiday entitlement for a part-year leaver, but alternatively allows for a sum payable pursuant to “a relevant agreement”. 

On termination of Mr Connor’s employment, his accrued holiday was calculated at 1/365^th of his annual salary for each day’s leave in accordance with his contract. This amounted to less than he was entitled under the WTR.

Outcome:

The EAT held that a “relevant agreement” for the calculation of final holiday under the WTR could not allow an employer to pay less than what is required under the regulations. 

Comment:

Employers must be wary of employees’ entitlements under the WTR. As this case shows, variations may be agreed but not if they reduce the employees’ statutory entitlements.

Legal Updates

Flexible Working 

The Employment Relations (Flexible Working) Act 2023 received royal assent on 20^th July 2023.  The key changes, expected to be brought in in approximately 12 months, are as follows:

• An employee may make two flexible working requests in any 12-month period (previously the limit was one request in any 12-month period)
• The employee no longer has to explain the impact of their requested arrangement on the employer’s business.
• The employer must respond to a flexible working request within 2 months of receipt, unless any additional extension is agreed between the parties. 
• The employer may only reject the flexible working request after consultation with the employee requesting it. There is no further guidance on the level of consultation required, however.

Comment:

Initially, the expectation was for the right to request flexible working to become a day 1 right, but this has not (yet) occurred. For now, an employee still needs to have 26 weeks’ service before they may make a flexible working request.

Strikes and Agency Workers

In 2022, regulations were introduced to revoke the ban on using temporary agency workers to fill in for striking workers.

These regulations have now been ruled unlawful due to the government’s failure to consult unions before introducing the changes. 

This means that the ban on using temporary agency workers to fill in for striking workers is once again enforced. It is a criminal offence for an employment business to supply an employer with agency workers to cover the work of a striking worker or a worker who has been redeployed to cover the work of striking workers.

Comment:

The reintroduction of the ban will likely increase disruption caused by industrial action. However, employers must not utilise agency workers in these circumstances. Agencies in particular need to be careful not to supply agency workers in these circumstances, as this is a criminal offence.