Employment case law update October 2020

A number of key employment law cases of significance for employers have recently been decided.

Breach of contract, Unfair Dismissal, Working Time and Leave

Holloway v Aura Gas Ltd

The claimant, Mr Holloway, was employed by Aura Gas as a heating engineer. His role required him to travel from one job to the next, in some instances travelling up to 6 hours a day.

His weekly working hours, including the travel time, frequently exceeded the 48-hour working time limit, and he also claimed he was not paid overtime as per his contractual entitlement.

The employer commenced disciplinary proceedings against Mr Holloway alleging he was ‘dragging out’ working hours and falsifying timesheets, and for refusal to work contracted hours.

Mr Holloway responded by raising grievances in relation to his excessive working hours and the unpaid overtime. He subsequently resigned and brought a claim for constructive dismissal.

At tribunal, Mr Holloway claimed the company owed him wages as overtime for travelling for work, and that he was unfairly constructively dismissed by the company on the grounds of the failure to pay wages, breaches of the Working Time Regulations 1998 in relation to the 48 hour week and rest breaks, bullying, health and safety breaches, failure to take a grievance he lodged seriously and a vindictive disciplinary investigation.

The tribunal found in the claimant’s favour.

For employers, the key takeaways are the importance of tracking and recording employees’ working hours to ensure they do not breach the 48-hour limit, calculated as an average across a 17-week period. And, while it is possible to request employees to opt out from this limit, you cannot insist.

Unfair dismissal

K v L

A teacher suspected of having indecent images of children was found by the Employment Appeal Tribunal to have been unfairly dismissed.

The claimant, who cannot be named for legal reasons, was a teacher. He was charged by the police with possession of indecent images of children, but not subsequently prosecuted due to the absence of sufficient evidence to show that he was responsible for downloading those images.

The claimant denied responsibility.

His employer, a school which also cannot be named, tried to obtain information from the Crown about the case, but the documents provided were too heavily redacted to be of use.
In light of the allegations, the school decided to proceed with disciplinary action and the teacher was eventually dismissed, despite the fact he was not prosecuted.

The claimant claimed unfair dismissal.

At first instance, the claim was rejected by the tribunal.

On appeal, the EAT held that the dismissal had been unfair on process grounds:

The school’s letter inviting the claimant to a disciplinary hearing focused on misconduct and did not provide notice of the ground of reputational damage, meaning the claimant could not address this specific point in his defence.

Notwithstanding the lack of notice, there was insufficient evidence to support a dismissal based on reputational damage.

It was unreasonable to dismiss on the basis that misconduct was a possibility: the employer must be satisfied that there was substantial evidence in support of the conduct.

The ruling serves as a reminder to employers of the importance of conducting a fair and lawful disciplinary process and using the correct documentation. It also shows the importance of having an evidential basis for such a decision, both in relation to misconduct and any risk of reputational damage. Employees must also be given an opportunity to deal with all relevant issues at the disciplinary hearing for a dismissal to be fair. This should particularly be borne in mind when the allegations are serious and potentially damaging to the reputation of an employer.

EAT discourages “narrative” style in claim forms and response documents

C v D

The EAT has provided guidance on written pleadings in tribunal claims. Specifically, the tribunal judge warned against the use of a “narrative style”.

C v D was an appeal against a refusal to allow amendments to a claim. In bringing claims of unfair dismissal and discrimination, the Claimant’s particulars of claim ran to 37 paragraphs across six pages.

While the pleadings presented a lengthy and detailed narrative of events, they referred to two different protected characteristics and failed to state which facts related to which characteristic, the alleged type of discrimination or the relevant statutory provisions.

The employer replied also in a narrative style, requesting further information and better particulars, which was provided by the employee. The employer then complained that the employee was raising new claims and new facts which would now be out of time.

Following a subsequent PH, an employment judge refused to allow certain amendments to the claim and the claimant appealed.

In the appeal judgment, HHJ Tucker discouraged the use of narrative pleadings and encouraged legal representatives to use more succinct and clear drafting.

She also distinguished between claim forms and witness statements. The former should set out in brief the relevant facts and identify the cause of action relied on, such as the specific discrimination claim. Witness statements are used to set out relevant factual details.
She said that the task for lawyers was to “distil the relevant factual matters to their essential or key component parts” when drafting pleadings, or, as was the case here, case management becomes much more difficult and significant time and cost is lost.

Tribunal costs

Tan v Copthorne Hotels

The Central London Employment Tribunal has made a six figure costs award against a claimant who made secret recordings and sought to wrongly implicate colleagues with WhatsApp messages in order to support his claim.

This award is unusual since costs (including legal fees) are not usually paid by the losing party in employment tribunal cases. Costs can be awarded if one of the parties has shown behaviour or conduct that is vexatious, disruptive, abusive or otherwise unreasonable in bringing proceedings or how they have conducted themselves during the proceedings. A costs order might also be made if a claim is pursued (or defended) despite the claim/defence having no reasonable prospect of success.

The claimant, Tan, was a senior vice president of a hotel group. When placed a risk of redundancy, he responded by making numerous allegations including discrimination, victimisation, harassment, whistleblowing detriment and unlawful deductions from wages.
The subsequent disclosure stage revealed Tan had covertly recorded hundreds of hours of meetings and private conversations with colleagues.

In light of the recordings, more than 3,000 pages of documents were brought before the tribunal during a hearing lasting seven days. The claimant persisted despite having been required to pay a deposit for some of the claims and having been given an opportunity to withdraw.
The employment tribunal dismissed all Tan’s claims, finding the employee had been ‘duplicitous’ and acted in a way which undermined trust and confidence when he secretly recorded conversations with colleagues.

The tribunal made an order for £432,000 in costs payable to Copthorne Hotels to cover the costs of defending those spurious claims.

Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.