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Is it a whistleblowing dismissal if the person who made the decision to dismiss was ignorant of the protected disclosure, and was deliberately misled by the employee’s line manager to believe the reason was poor performance?

No, held the Court of Appeal in its judgment in Royal Mail Ltd v Jhuti. Link to Judgement

Ms Jhuti was an employee at Royal Mail who made a protected disclosure to her line manager. During a dismissal process, the line manager, motivated by the protected disclosure, deliberately misled the investigating manager so that she dismissed Ms Jhuti for poor performance. The EAT held that both the reason and motivation of the decision maker and the line manager had to be taken into account, and could be attributed to their employer.

In reversing the EAT’s decision, the Court of Appeal held that in determining the “reason for the dismissal”, the tribunal is only obliged to consider the mental processes of the person(s) authorised to, and who did, take the decision to dismiss (being the mind of the employer). Underhill LJ raised some doubt about whether, in cases of manipulation, the position would be different if the CEO deliberately manipulated the dismissal decision.

Underhill LJ stressed that unfair dismissal cases require unfairness by the employer. Unfair conduct by individual managers or colleagues is immaterial unless it can properly be attributed to the employer.

In principle, Ms Jhuti is not precluded from recovering compensation for dismissal consequent on unlawful detriment but this is for the employment tribunal to decide.

 

Does an embassy employee have diplomatic immunity in respect of employment claims from his domestic staff?

No, held the Supreme Court in Reyes v Al-Malki. Link to Judgement

Mr and Mrs Al-Malki employed Ms Reyes as a member of domestic staff at their London residence. Mr Al-Malki was a diplomat of the Saudi Arabian embassy in London.

In circumstances very similar to yesterday’s case of Benkharbouche v Secretary of State for Foreign & Commonwealth Affairs & Anor, Ms Reyes began employment tribunal proceedings and alleged that Mr and Mrs Al-Malki mistreated her during her employment and that she is a victim of human trafficking. Those allegations have yet to be determined and the issue for the Supreme Court was whether the tribunal has jurisdiction to hear the claims within the exception to the rule of diplomatic immunity, contained in Article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961.

The Supreme Court unanimously held that Mr Al-Malki would not be entitled to diplomatic immunity in relation to a claim of human trafficking brought by Ms Reyes because her employment (to carry out domestic tasks) and alleged treatment would not constitute acts performed in the course of the diplomat’s official functions.

In Ypourgos Esoterikon and anor v Kalliri, the European Court of Justice has held that imposing a minimum height requirement of 1.7m for enrolment in Greek police schools constituted indirect sex discrimination that was not objectively justified. Far more women than men were disadvantaged by the minimum height requirement, and while the requirement sought to pursue the legitimate aim of enabling the effective accomplishment of the various functions of the police force, certain police functions, such as providing assistance to citizens or traffic control, did not require the use of particular physical aptitude. Furthermore, it is not necessarily the case that a person’s height corresponds to his or her physical aptitude to carry out certain functions. The aim that the requirement sought to pursue could be achieved by measures that were less disadvantageous to women – for example, by carrying out pre-selection aptitude tests.

In Greece, a national law required candidates who wished to enter police school to train as officers to be a minimum height. The law required any candidate (male or female) to be at least 1.7m tall, without shoes. When K’s application to join the police school was rejected on the basis that she did not meet the minimum height requirement (since she was only 1.68m tall), she presented a complaint before the Greek Court of Appeal which held that the requirement was contrary to the constitutional principle of equality of the sexes. The Greek Interior Minister and the Minister for Education and Religious Affairs appealed against that decision. The Council of State decided to stay the proceedings to ask the ECJ whether the minimum height requirement was compatible with the EU Equal Treatment Directive (No.76/207), which prohibits, among other things, unjustified indirect sex discrimination.

The ECJ noted that the referring court itself had found that a much larger number of women than men are of a height of less than 1.7m, such that, by the application of that law, women were very clearly at a disadvantage compared with men in relation to the admission requirements to the Greek police school. It therefore followed that the law was indirectly discriminatory. As to the question of whether the requirement could be objectively justified as a proportionate means of achieving a legitimate aim, the Greek Government had submitted that the aim of the law was to enable the effective accomplishment of the task of the Greek police, and that possession of certain particular physical attributes, such as being of a minimum height, was a necessary and appropriate means of achieving that aim. The ECJ noted that previous case law had established that ensuring the operational capacity and proper functioning of the police service constituted a legitimate aim. However, the ECJ held that, while it was true that the exercise of police functions involving the protection of persons and goods, the arrest and custody of offenders and the conducting of crime prevention patrols might require the use of physical force that would require a particular physical aptitude, certain police functions, such as providing assistance to citizens or traffic control, did not require the use of significant physical force. Furthermore, even if all the functions carried out by the Greek police required a particular physical aptitude, such aptitude was not necessarily connected with being over a certain height. Equally, it was not necessarily the case that shorter people naturally lacked that aptitude. It was also worth noting that, until 2003, Greek law required different minimum heights for men and for women to enter the police: for women the minimum height was fixed at 1.65m, compared with 1.7m for men. It was also relevant that there remained different minimum height requirements for men and women to enter the Greek armed forces, port police and coast guard, where the minimum requirement for women was only 1.6m.
The ECJ concluded that the pursued aim could be achieved by measures that were less disadvantageous to women, such as a pre-selection of candidates based on specific tests allowing their physical ability to be assessed. It followed that, subject to the national court’s assessment of objective justification, the minimum height requirement breached the Equal Treatment Directive.

Link to case

Remember the 2016 ECHR decision in Barbulescu v Romania, which said that a Romanian employer acted lawfully when it monitored an employee’s Yahoo messenger account?

Something unusual has happened.  There has been an appeal from the Chamber of the ECHR (7 judges, who take most of the decisions) to the Grand Chamber (17 judges, the final tier and unusual).  And the Grand Chamber has come down more in favour of the right to privacy and reversed the decision.

It’s a complicated and nuanced judgment.  But the main point is that workers have a right to respect for privacy in the workplace, and if an employer is going to monitor their emails and messages, the employer should (exceptional reasons aside) tell the worker that their communications might be monitored.  Here, although the employee knew it was forbidden to use work computers for personal purposes, he had not been told that the employer was monitoring his communications.

Accordingly the ECHR held that the Romanian court’s decision was wrong, and that Romanian law failed to strike a fair balance between the employer’s and the employee’s interests.  Accordingly there was a breach of Article 8 and the employee was entitled to compensation.

Did suspension of a teacher amount to a breach of the implied term of mutual trust and confidence?

Yes, held the High Court in Agoreyo v London Borough of Lambeth. In this case, a teacher was suspended because of the force she used with two children. She had not been asked for her response to the allegations and there was no evidence of consideration given to any alternative to suspension. She resigned the same day.

Foskett J held, following Mezey and Gogay, that suspension was not a neutral act, at least in the context of a qualified professional in a vocation, such as a teacher. Taking into account the statutory guidance for local authorities, it was noted that a knee-jerk reaction must be avoided and that suspension must not be the default position. The reason given for the suspension was not the protection of children, but to “allow the investigation to be conducted fairly”.

The Court concluded that suspension was adopted as the default position, was a knee-jerk reaction, and amounted to a repudiatory breach of contract. This was not undermined by a resignation in friendly terms.

NB the court did not have before it the question of whether this case was an attempt to circumvent the statutory qualifying period for unfair dismissal claims and fell within the ‘Johnson exclusion zone’.

Link to the case

In Efobi v Royal Mail Group Ltd, the EAT has held that S.136 of the Equality Act 2010 – which deals with the burden of proof in discrimination cases – does not impose any initial burden on claimants to establish a ‘prima facie’ case of discrimination. Rather, it requires the tribunal to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not there are facts from which it can infer discrimination. If there are such facts, and no explanation from A, the tribunal must uphold the complaint. It may therefore be misleading to refer to a ‘shifting’ of the burden of proof, as this implies, contrary to the language of S.136, that Parliament has required a claimant to prove something.

E worked as a postman for RMG Ltd. On more than 30 occasions, E applied unsuccessfully for an IT job with the company. He subsequently complained to an employment tribunal that his applications were rejected because he was a black African, born in Nigeria. The tribunal dismissed his race discrimination claims, holding that he had not proved facts from which it could conclude that there was discrimination. For instance, there was no evidence to show that the successful applicants were appropriate comparators (no evidence having been adduced as to their race and national origins). In contrast, RMG Ltd had adduced ample evidence to establish that it had good reasons, untainted by discrimination, to reject E’s applications – notably that while E was highly technically qualified, his CV did not set out the required skills for the various jobs.

Upon appeal to the EAT, E argued that the tribunal had erred in law in its application of the burden of proof, having failed to analyse properly what inferences it could (or should) have drawn from the evidence. The EAT (Mrs Justice Laing sitting alone) observed that S.136(2) of the EqA provides ‘if there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred’. However, S.136(2) ‘does not apply if A shows that A did not contravene the provision’ – S.136(3). In the EAT’s view, S.136(2) does not put any initial burden on a claimant (although if the claim is ‘manifestly frivolous’, a respondent can apply to have it struck out). Rather, it requires the tribunal to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not there are facts from which it can infer discrimination. If there are such facts, and no explanation from A, the tribunal must find the contravention proved. If a respondent chooses, without explanation, not to adduce evidence about matters that are within its knowledge (such as, in this case, the race and national origins of the successful applicants), it runs the risk that a tribunal will draw adverse inferences in deciding whether or not S.136(2) has been satisfied.

The EAT acknowledged that this is not the way in which S.136 is interpreted in the Explanatory Notes to the EqA (which state that ‘the burden of proving his or her case starts with the claimant’). However, while such notes may be an admissible aid to the construction of a statute in order to establish contextual factors, they cannot be treated as reflecting the will of Parliament, which is to be deduced from the language of the statute itself. The EAT further acknowledged that this is not the way in which the burden of proof has been understood thus far in discrimination cases, starting with Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases (Brief 777). However, the statutory provision there being considered was S.63A of the Sex Discrimination Act 1975 (a predecessor to S.136 EqA), which – along with its ‘sibling provisions’, in for example the Race Relations Act 1976 – specifically placed the onus on the claimant to prove the initial facts from which discrimination could be inferred. There had not been many cases in which the effect of S.136 (as opposed to its predecessors) had been directly considered.

It was clear to the EAT that the tribunal did not understand the effect of S.136, since it had stated on several occasions that E had the initial burden of proving a prima facie case of discrimination. In light of this misdirection, the EAT could not be confident that the tribunal had not required E ‘to prove things that he was neither required, nor able, to prove’, such as the race and national origins of the successful candidates. In addition, the EAT could not be confident that the tribunal had imposed a sufficiently rigorous standard of proof on RMG Ltd. Had the tribunal appreciated that E did not have to get ‘to first base’ (as it put it), but that it had to consider all the evidence in the round, it might have concluded that S.136(2) was satisfied, and then have subjected RMG Ltd’s explanation to more rigorous scrutiny than it did.

The EAT therefore remitted the case to a differently constituted employment tribunal to decide whether or not E’s race discrimination claims were made out. In doing so, the EAT commented that even if S.136 were to be interpreted in line with its predecessors, it would still have allowed the appeal – it was not confident that the tribunal understood that there might have been facts from which a court could have concluded that (in the absence of an explanation) RMG Ltd had discriminated against E.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2017/0203_16_1008.html

If a director was named on the ACAS Early Conciliation form and the company on the Claim Form, should the claim be allowed to proceed (as this was a minor error)?

No, held the EAT, in Giny v SNA Transport Ltd.

The Claimant brought several claims, including constructive dismissal, against his former employer. When he was initially unrepresented, he contacted Acas for Early Conciliation and named the director, Shakoor Nadeem Ahmed, as the prospective Respondent. He then instructed solicitors to prepare his Claim Form which correctly named the Respondent as his employer, ‘SNA Transport Limited’. The employment tribunal rejected his claim as the Respondent had not been correctly identified on the Early Conciliation Certificate.. His solicitors applied to the tribunal to reconsider that decision on the basis that the use of the director’s name was a “minor error”, which (under the rules) allows a tribunal to overlook it.

The employment tribunal rejected that application.. Confusing the director with the company was not a minor error, and it had been right to reject the claim. The Claimant appealed.

The Employment Appeal Tribunal, although sympathetic, rejected the Claimant’s application. It said that a two stage test should be applied.. Firstly, was it a minor error? If not, the claim would be rejected..Secondly, if it was, the tribunal should go on to consider whether or not it was in the interests of justice to allow the claim to proceed.. Although in principle the distinction between a natural and a legal person could amount to a minor error, in this case it did not. Each case should be considered on its facts, and as there was no error in the tribunal’s Judgment, the Claimant’s appeal was dismissed.

In Chesterton Global Ltd and anor v Nurmohamed, the Court of Appeal has held that an employment tribunal was entitled to find that an employee had a reasonable belief that his disclosures about his employer’s manipulation of profit and loss accounts were made in the public interest, despite his personal motivation in so doing (i.e. the effect this would have on his commission payments). The tribunal had identified a number of features that made it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker – specifically, the number of employees affected; the nature of the wrongdoing, which involved large sums of money; and the fact that it was deliberate.

N was employed as director of the Mayfair office of CG Ltd, a firm of estate agents. On three occasions between August and October 2013 he alleged to senior managers that there were inaccuracies in the company’s accounts and that figures were being manipulated to the benefit of shareholders. He was concerned that costs and liabilities had been deliberately misstated, and that inaccurate figures were used to calculate commission payments to over 100 senior managers (including himself). N was later dismissed and brought claims of, among other things, automatically unfair dismissal for having made a protected disclosure, contrary to S.103A of the Employment Rights Act 1996.

An employment tribunal found that N had a reasonable belief that the disclosures were made in the public interest (as required by an amendment to S.43B ERA that came into force on 25 June 2013) and upheld N’s claim. Upon appeal, the EAT held that it was entitled to do so. Although N had a personal motivation in raising the allegations, the tribunal had been satisfied that he had the other office managers in mind, and permissibly concluded that they comprised a sufficiently large section of the public to engage the public interest. CG Ltd appealed, arguing that in order for a disclosure to be in the public interest, it must serve the interests of persons outside the workplace – mere multiplicity of workers sharing the same interest was not enough.

The Court of Appeal (Lord Justice Underhill giving the lead judgment) dismissed the appeal. It observed that that the 2013 ‘public interest’ amendment to the ERA was intended to reverse the effect of the EAT’s decision in Parkins v Sodexho Ltd 2002 IRLR 109, whereby a worker could bring a protected disclosure claim purely in respect of a breach of his or her own contract of employment. It disagreed with Public Concern at Work (which intervened in the case) that a disclosure of a breach of contract could be in the public interest if it was in the interests of anyone else besides the worker making the disclosure. The question whether a disclosure is in the public interest depends on the character of the interest served by it rather than simply on the number of people sharing it.

On the other hand, CG Ltd went too far in suggesting that multiplicity of persons sharing the same interest can never, by itself, convert a personal interest into a public one. The statutory criterion of what is ‘in the public interest’ does not lend itself to absolute rules and the Court of Appeal was not prepared to discount the possibility that the disclosure of a breach of a worker’s contract ‘of the Parkins v Sodexho kind’ may nevertheless be in the public interest, or reasonably be so regarded, if a sufficiently large number of other employees share the same interest. Tribunals should, however, be cautious about reaching such a conclusion – the broad intent behind the 2103 statutory amendment is that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers, even where more than one worker is involved.

The Court of Appeal went on to hold that where the disclosure relates to a breach of the worker’s own contract of employment (or some other matter where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker.

In this regard, the following factors suggested by N might be relevant:
• the numbers in the group whose interests the disclosure served
• the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed
• the nature of the wrongdoing disclosed, and
• the identity of the alleged wrongdoer.

In the instant case, the tribunal had identified other features, aside from the number of employees affected, which might be said to render disclosure in the public interest – specifically, that the disclosure was of deliberate wrongdoing, and that it allegedly took the form of misstatements in the accounts to the tune of £2-3 million. The Court observed that if the accounts had been statutory, the disclosure of such a misstatement would unquestionably be in the public interest (even if it involved a private company). The fact that the accounts in question were only internal made the position less black and white. However, internal accounts feed into the statutory accounts and C Ltd is a very substantial and prominent business in the London property market. It was debatable whether the tribunal, which was navigating uncharted waters, fed those factors into its assessment that it was reasonable to regard disclosure as being in the public interest. But, even if it did not, the Court considered that they would only have reinforced its conclusion, based on the numbers alone, so that any error of law in its reasoning was immaterial.

Link to transcript: http://www.bailii.org/ew/cases/EWCA/Civ/2017/979.html

In Small v Shrewsbury and Telford Hospitals NHS Trust, the Court of Appeal has held that an employment tribunal ought to have considered whether to award compensation for long-term loss of earnings to a claimant whose employment was terminated because he had made a protected disclosure, even though the claimant, a litigant in person, did not expressly advance such a claim. In the Court’s view, given that the tribunal had acknowledged that the consequences of the termination were ‘career-ending’ for the claimant, it should have recognised and raised the issue itself.

S began working for the Trust in May 2012 at the age of 56. He was engaged through an agency on a temporary assignment but understood that there was a prospect of full-time employment in due course. However, two months later the Trust terminated his engagement. S successfully argued before an employment tribunal that the reason for the termination was that he had made a protected disclosure and the tribunal found that the termination constituted an unlawful detriment under S.47B of the Employment Rights Act 1996. At the remedy hearing, S, who was unrepresented, claimed compensation for, among other things, loss of earnings up to his anticipated date of retirement in 2022. This was on the basis that a permanent appointment would have followed but for the unlawful termination. S also put in evidence to show that, since his dismissal, he had been unable to obtain work in the same field despite numerous applications. He asserted that his search for employment had been hampered by the fact that he was dismissed and by the lack of a reference from the Trust.

The employment tribunal awarded compensation of £54,126, including £33,976 for loss of earnings. It calculated loss of earnings on the basis that S would not have been given the permanent employment which he said he had been led to expect but that he would have been retained until November 2013. The tribunal made no award for loss of earnings beyond that point. However, in its reasoning on injury to feelings it observed that S’s career was dependent on the outcome of his last job, that the lack of a reference was indeed a hindrance and that the termination had been ‘career-ending’. S appealed to the EAT, where he had the benefit of representation by counsel for the first time. He argued that the tribunal should have awarded loss of earnings beyond November 2013 on the basis of the Court of Appeal’s decision in Chagger v Abbey National plc (Brief 893), where the Court held that, in principle, a claimant can recover for loss of earnings beyond the date on which employment would have otherwise terminated and can, in principle, claim for the ‘stigma’ that he or she suffers in the labour market. The EAT dismissed the appeal. While it accepted that there are some principles that are so well established that a tribunal might be expected to consider them as a ‘matter of course’, it could not accept that the Chagger basis of claim was in this category. S appealed to the Court of Appeal.

The Court allowed the appeal, holding that, in the particular circumstances of the case, the tribunal ought to have considered whether S had a claim in respect of his loss after November 2013, which would, in principle, include a stigma claim. Lord Justice Underhill, giving the only judgment, pointed out that S’s evidence to the tribunal made clear that he was suffering a loss extending into the indefinite, and probably long-term, future, and that the tribunal had itself recognised the ‘career-ending’ consequences of the termination for S. Although a Chagger claim will not always be a ‘matter of course’, it was so in the particular circumstances of the present case. Underhill LJ rejected the Trust’s argument that, because S had put his claim for future loss on the basis of long-term permanent employment with the Trust, the tribunal was under no obligation to formulate a different future loss claim and consider that. The Chagger claim was an obvious alternative or fallback to the very specific and rather ambitious claim that S was advancing. He should not be regarded as having given up the right to have that alternative considered by the tribunal simply because both types of claim could be labelled as ‘future loss’.

Link to transcript: http://www.bailii.org/ew/cases/EWCA/Civ/2017/882.html