Employment Law Briefing August 2019

Barrasso v New Look Retailers Ltd: Right to bring Unfair Dismissal Claim. 

In September 2015, Mr Barasso had entered into a section 205A Employee Shareholder Agreement. It was agreed that this had met the requirements provided such that, he thereby became an employee shareholder and was therefore excluded from the statutory right to claim unfair dismissal or a redundancy payment.

In March 2017, he entered into a new Service Agreement which purported to supersede any previous agreement between the parties "in relation to the matters dealt with in it" but they did not contain any express or direct reference to him being an employee shareholder.

In February 2018, he was dismissed in circumstances that he regarded as unfair. He brought a claim for unfair dismissal. At a preliminary hearing, the ET found that he was an employee shareholder for the purposes of section 205A of the Employment Rights Act 1996. There was nothing contained in the deed that could be seen as having “superseded” the earlier agreement as the later deed did not refer to the employee shareholder status or to the subject matter of the section 205A agreement. He was therefore excluded from the right to claim unfair dismissal. He appealed.

The EAT dismissed the appeal. The EAT found that the ET had reached permissible findings as to the background context that entirely supported its construction of s 205A ERA within the later deed.

Komeng v Creative Support Limited: Injury to feelings award.

Mr Komeng brought a claim for unlawful direct race discrimination arising from the failure of his employer to enrol him on a course that would have allowed him to develop professionally and required him to work every weekend.

The ET found in his favour. His position was not aligned to a comparator of a different race. He was awarded injury to feelings assessed in the lower band of Vento guidelines placing the award at the top end of the lowest band.

Mr Komeng appealed to the EAT on the grounds that (1) the compensation award should have been in the middle band of the Vento guidelines and not the lower band and (2) that the ET had failed to award interest on the compensation. The EAT found that the ET had considered the impact on him and therefore there was no error of law in the ET's decision to place the compensation award at the top of the lower Vento band, as it had employer. It confirmed that the correct test was the impact on him and not the gravity of the employer’s actions. However, the ET had erred as it had not awarded/ calculated interest on the award.

Mefful v Merton and Lambeth Citizens Advice Bureau: Claim for Unfair Dismissal Appeal allowed.

Mr Mefful had worked for the CAB for over 8 years. He was dismissed by reason of redundancy. He brought claims in the ET for unfair dismissal under s 98 ERA, disability discrimination and victimisation, and automatic unfair dismissal because of a protected disclosure.

The ET accepted that he had made a protected disclosure and that he was a disabled person by reason of his shoulder impairment. The ET however found that the reason for his dismissal was redundancy based on a “finding of fact.”

He appealed to the EAT contending that the ET had erred its finding as to the reason for his dismissal. The EAT Upheld the appeal and found that the ET had failed to engage with the issues that would be necessary to determine as to whether redundancy was the real reason for his dismissal. The ET should have looked beyond the finding that there was a redundancy situation.

The Harpur Trust v Brazel: correct construction of the Working Time Regulations when calculating holiday pay for a part year worker.

Ms Brazel was employed all year by the Trust on a permanent contract. She was however only paid for work done. For large parts of the year, in particular the school holidays, she had no work at all and therefore was not paid. The weeks that she worked varied and her holiday entitlement was calculated by the Trust with a method recommended by ACAS in a guidance booklet.

Ms Brazel challenged this calculation and said that the method bears no relation to the calculation required by the Working Time Regulations and produced a low lower figure. She argued that the correct approach was to take the average weekly remuneration for the 12 weeks prior to the calculation date and then multiplying it by 5.6 in accordance with the regulations. She argued that there is nothing in the relevant provisions requiring a different approach where a worker does not work a full year. The ET disagreed.

She appealed to the EAT who agreed.

The Trust appealed against that decision. The Court of Appeal dismissed the appeal. It agreed with Ms Brazel. The regulations simply require the straightforward exercise of identifying a week's pay in accordance with the provisions and then multiplying that figure by 5.6. The regulations make no provision for pro-rating and therefore even though it leads to a bizarre result, that was the proper construction of the regulations.

Okedine v Chikale: A defence of illegality cannot be raised in relation to contractual claims.

Ms Chikale was employed in Malawi to look after Ms Okedine’s parents. Both parties in these proceedings are Malawian Nationals. They both came to the UK and Ms Chikale continued to work directly as a domestic worker. Her working visa was only valid for 6 months (expiring on 28 November 2013) and had not been extended. She continued to remain in the UK and work illegally. Ms Chikale was however not aware of this. She was dismissed summarily on 18 June 2015 and ejected from the house. During the entirety of employment, she was required to work 7 days a week for very long hours and was paid only some £3300. She brought claims in the ET for unfair and wrongful dismissal, unlawful deduction of wages colour entitlement to national minimum wage, unpaid holiday pay, breaches of working time regulation come up failure to provide written particulars and itemised pay slips and race discrimination.

Ms Okedine argued that as the contract of employment was tainted by illegality she was not entitled to bring claims. The ET had to consider the issue as to whether Ms Okedine could raise defence of illegality in respect of the period after 28 November 2013. It was her case that as from that day the contact was illegal, or illegally performed, because Ms Chikale no longer had to leave to remain and accordingly any contractual claim was unenforceable. The ET disagreed and rejected the illegality defence but dismissed the discrimination claim. Ms Chikale was awarded the sum of £72271.20.

Ms Okedine appealed against the liability decision. The EAT agreed with the ET.

On a further appeal to the Court of Appeal, the Court of Appeal reviewed two kinds of illegality

- statutory and common law. It held that common law illegality did not apply as Ms Chikale was unaware of her status. In relation to statutory illegality, the Act could not be read as impliedly prohibiting contracts of employment in the sense of rendering them unenforceable by either party where the employee did not have the requisite immigration status.

Inchcape Retail Ltd v Shelton: Time limits for bringing claim (22 August)

Inchcape Retail Limited is a franchise car dealership group. Mr. Shelton was employed from 7 January 2004 as a sales executive. On 9 November 2017 he reported damage to his company vehicle. He asserted that the vehicle was hit overnight went parked at his home. However, subsequently the company received correspondence from police indicating that the driver of the vehicle was alleged to have committed offences on 8 November 2017 near where he lived. The offences alleged included driving without due care and attention failing to stop. The company brought disciplinary proceedings against him on the basis that he had been dishonest. Mr Shelton denied he was the driver. He was dismissed. His date of dismissal was 21 December 2017. Proceedings should have been issued by 20 March 2017. He was expecting a letter to confirm his dismissal. He was anxious to challenge the dismissal and put in an appeal. He however received no letter. He had to request it. On 21 February 2018 he submitted his appeal. The appeal was hear on 7 March 2018. Following the appeal hearing, the company decided to make further enquiries of the police. Therefore, as at 20 March 2018 (when the time limit for issuing expired) Mr Shelton was still awaiting the outcome of the internal appeal.

He chased on 17 April 2018. He contacted ACAS on 21 April 2018. He obtained a Conciliation Certificate on 27 April 2018. He submitted his claim on 2 May 2018. Mr Shelton brought a complaint of unfair dismissal.

The ET decided that the complaint had been brought in time. The Employment Judge found that it was not reasonably practical for him to bring his ET claim for unfair dismissal in time because he was labouring under a misapprehension that he had to exhaust an internal appeal procedure first.

Inchcape Retail Limited appealed. Whether it was reasonably practical to bring the ET claim will depend on whether it was reasonable to expect the Claimant to take steps to find out about the enforcement of this rights, what steps and when. The EAT Found that the Employment Judge had reached this conclusion without considering giving reasons on this issue.

Accordingly, the appeal was allowed and the matter was remitted for rehearing.

Gay cake case has been referred to European Court

Daniel and Amy McArthur, the owners of Ashers bakery refused to make a cake with the slogan “support gay marriage” for customer Gareth Lee, gay rights activist

Gareth Lee had sued the bakery for discrimination on the grounds of sexual orientation and belief.

The Supreme Court had ruled in the bakery’s favour in 2018. The Supreme Court had found that the bakers had not refused to fulfil the order because of Lee's sexual orientation but rather because of their Christian faith beliefs. It was their position that they would have refused to make such a cake for any customer irrespective of their sexual orientation. Their objection was to the message on the cake and not to the personal characteristics of Mr Lee. The Supreme Court therefore held but there is no discrimination on the ground of sexual orientation of Mr Lee.

Mr Lee has taken the Case to the European court under the European Convention of Human Rights. The case has been brought against the United Kingdom.

ICO updates guidance on time scales for responding to data subject requests

Following a ruling by the Court of Justice of the European Union, the ICO has updated its guidance on timescales for responding to data subject individual rights requests (SAR) as well as other individual rights requests. The timescale has now changed to reflect the day of receipt as ‘day one’. This guidance makes clear that when calculating the one-month period for response the date of receipt is the day one rather than the day after received. It provides an example as follows: a SAR received on 3 September should be responded to by 3 October.

It is important to review policies and to ensure that they reflect this change.

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