November was a plentiful month for interesting cases and principles that can be used in day-to-day practice. So we thought we’d share snippets of as many as we think you can stand, rather than go into the detail.
Redundancy and statutory trial periods
East London NHS Foundation Trust v O’Connor examined the point at which a statutory trial period began and, on the facts of this case, decided that it didn’t start at the point the Claimant’s role was “deleted” from the organisation, following which the Claimant undertook a trial of a different role. The trial period can only start when an employee is “dismissed”, which occurred sometime later in this case.
Moral of the story? Be careful with changes to job roles and statutory trial periods. If the statutory 4-week period expires whilst an employee carries out a different role, redundancy entitlements can be lost forever.
Homophobic remarks about hypothetically not hiring LGBT people
According to the CJEU in NH v Associazione Avvocatura per I diritti LGBTI such remarks are unlawful. Despite there being no direct victim and no active recruitment campaign, a senior lawyer remarked on Italian Radio that he would never recruit a homosexual to his law firm. Since such statements might discourage people in a protected group from applying for jobs in law, the court held the remark was unlawful.
Moral of the story? Discriminatory comments don’t have to be directed towards the Claimant to give rise to actionable harassment claims.
CCTV monitoring in the workplace
Isn’t a breach of Article 8 (right to private life) according to the ECHR in Lopez Ribalda and others v Spain. Surveillance in a supermarket limited to two weeks and a small group of individuals to monitor theft wasn’t unlawful, despite the staff not being notified they were being recorded.
Moral of the story? Employers are entitled to monitor employees in the workplace, as long as the correct balance between the right to privacy and the employer’s right to protect its legitimate interests is met.
Dismissal and Reinstatement – does it extinguish a discrimination claim?
Not according to the EAT in Jakkhu v Network Rail. Even a withdrawn dismissal can give rise to a detriment.
Moral of the story? Don’t assume that securing reinstatement for an employee extinguishes all claims. The dismissal might vanish but where dismissal was an act of discrimination, that claim can proceed.
Anti-Union motivation of an investigating manager
This is a great case in support of trade union detriment and dismissal claims – Cadent Gas Ltd v Singh. The Claimant, a health and safety rep and shop steward for GMB, was dismissed for gross misconduct when he was 1 minute late to an emergency call out. The senior manager (“H”) pushed for disciplinary action, mentioning the Claimant was a trade union rep and omitting key information about the emergency call out in question. H continued to involve himself in the investigation, despite appointing someone else to handle it, and changed the terms of reference. Before the investigating officer had had a chance to deliver his report, H informed the Claimant that a gross misconduct case was to be brought against him.
Based on these facts the Employment Tribunal decided that whilst the dismissal and appeal officer’s decisions weren’t motivated by prejudice against the Claimant on account of his trade union activities, H’s actions were; and as the employer couldn’t show a different reason for dismissal, it concluded the reason for dismissal was the Claimant’s trade union activities – an automatically unfair reason. The EAT refused to interfere with that decision holding that the decision makers were motivated by prejudice against the Claimant’s trade union activities and even if they weren’t, this was a “manipulation” scenario and it was right to hold the employers responsible for H’s actions.
Moral of the story? The involvement of all managers, investigating or otherwise, is relevant to a claim of this nature and all parts of the process should be thoroughly examined.
We hope these cases prove useful to you, into Christmas and beyond!
Daniel Kindell – Partner, Employment Rights Team