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Victoria von Wachter and David Messling provide a round-up of some of the key employment cases over 2020 and 2021, which may be of particular interest to police forces. The summary takes in some of the important decisions for employment law generally, as well as cases with a specific police context.
Barclays Bank Plc v Various Claimants [2020] UKSC 13. 2
Chief Constable of Devon and Cornwall v Town UKEAT/0194/19/LA [2020] 9 WLUK 493. 2
Chief Constable of Gwent v (1) Parsons (2) Roberts [2020] (EAT) UKEAT0143/18/DA. 2
Heskett v Secretary of State for Justice [2020] EWCA Civ 1487. 3
WM Morrison Supermarkets plc v Various claimants [2020] UKSC 12. 3
Patel v Commissioner of Police of the Metropolis UKEAT/0301/19/BA [2020] 5 WLUK 259. 4
Secretary of State for Justice v Plaistow UKEAT/0016/20 and UKEAT/0085/20. 4
Steer v Stormsure Ltd [2021] EWCA Civ 887. 4
Walker v Co-Operative Group Ltd & Anor [2020] EWCA Civ 1075. 5
Chief Constable of Greater Manchester v Aston UKEAT/0304/19/RN [2021] 6 WLUK 49. 6
Chief Constable of Merseyside v Knox UKEAT/0300/19/JOJ(V) [2021] 1 WLUK 247. 6
Dobson v North Cumbria Integrated Care NHS Foundation Trust [2021] UKEAT 0220_19_2206. 6
Forstater v CGD Europe & others UKEAT/0105/20/JOJ, 10 June 2021. 7
Matthew and others v Sedman and others [2021] UKSC 19. 7
Mr D Rodgers v Leeds Laser Cutting Ltd: 1803829/2020 [2021] 1 WLUK 594. 7
Royal Mail Group v Efobi [2021] UKSC 33. 7
Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8. 8
Uber BV and others v Aslam and others [2021] UKSC 5. 8
The Supreme Court held that Barclays Bank were not vicariously liable for sexual assaults that had been allegedly committed between 1968 and 1984 by the late Dr Gordon Bates. Dr Bates was a self-employed medical practitioner whose work included conducting medical assessments and examinations of prospective Barclays’ employees, and was not an employee of the bank. The Court held that the key question was whether Dr Bates was acting as an independent contractor or was in a relationship akin to employment. Whilst the criteria set out by Lord Phillips in Catholic Child Welfare Society v Various Claimants [2012] UKSC 56 may be helpful in determining whether technically self-employed or agency workers were part of the employer’s business, one should first look at the underlying details of the relationship. In this case, Dr Bates was on independent business on his own account and was not “anything close to an employee”.
In a judgment handed down on the same day as Barclays Bank plc v Various Claimants (see above), the Supreme Court addressed various questions that had arisen since its decision in Mohamud v Wm Morrison Supermarkets Plc [2016] UKSC 11. The Court held that Morrisons was not vicariously liable for the tortious actions of an employee who had kept a personal copy of payroll data for the entire workforce and made it publicly available online. It found that the employee had not been engaged in his employer’s business when he did the acts, but had been pursuing a personal vendetta. The Court also held that in respect of liability for statutory or common law wrongs, vicarious liability was not expressly or impliedly excluded by the Data Protection Act 1998.
The EAT held that in regards to indirect sex discrimination, it was not necessary for every member of a group to be at a particular disadvantage for the group’s membership as a whole to be at a particular disadvantage. The claim related to a police officer who had was transferred automatically from a front-line operational role to an office-based role on becoming pregnant. The officer claimed she had been directly and indirectly discriminated against under the Equality Act 2010 s.18 and s.19. The EAT determined that women were at a particular disadvantage because pregnancy automatically triggered a transfer. The fact that some pregnant women might prefer such a transfer did not remove the disadvantage arising from it being an enforced transfer.
The Respondents (P and R) were police officers who left the appellant police force under a voluntary exit scheme. Both officers were disabled, with ‘H1 certificates’ entitling them
to immediate access to deferred pensions upon leaving the police. Because P and R had immediate access to deferred pensions, the force capped their compensation lump sum payments under the voluntary exit scheme (which would otherwise have been 21 and 18 months’ pay respectively) at 6 months’ pay each. The Employment Tribunal upheld P and R’s claim that capping their compensation lump sums amounted to unlawful discrimination under s.15 of the Equality Act 2010. The chief constable appealed. The EAT dismissed the appeal. It held that capping the compensation lump sum payments was unfavourable treatment and there was no reason to take P and R’s deferred pensions into account. Possession of the H1 certificates clearly arose in consequence of disability, as the H1 certificates were based on the same impairments as P and R’s admitted disabilities under the Equality Act. The chief constable had not shown justification for this unfavourable treatment, and the evidence did not indicate that P and R would receive more from a full compensation package than by remaining with the police until retirement. The mere fact that someone was in immediate receipt of a pension on departure was not in itself sufficient reason to justify capping a redundancy payment.
A new pay policy introduced by the National Probation Service in response to the government’s limit on pay increases in the public sector was justified, despite it resulting in a significant slowing of pay progression for younger employees. The employer was pursuing a legitimate aim in seeking to reduce its staff costs to balance its books. Such an aim could justify indirect age discrimination if the measures it took were a proportionate means of doing so.
The Claimant, a Hindu police officer, claimed for religious discrimination, following a decision taken by a Chief Inspector that he could not transfer to the Brent area because of his long association with the Hindu Temple in Neasden. A year later, a different Chief Inspector had indicated that this rationale no longer applied and sought to rely on the Force’s change of position. The ET refused the Claimant’s application for disclosure of documents relating to the latter decision, on the basis that the Claimant’s circumstances had changed in the intervening period when he gave up his role as the Temple’s security manager. The EAT found this to be in error, as the Claimant had in fact communicated this change prior to the original refusal and there was no change of circumstances. The matter was remitted to the employment tribunal for reconsideration.
The EAT considered an appeal regarding the correct remedy after an ET finding of sexual orientation discrimination, victimisation and harassment of a former prison officer. It found that the tribunal was entitled to assess future loss of earnings on a career-long basis, but failed to take account of the various uncertainties of life that might affect the length of the claimant’s working life. The ET was correct to take a broad-brush approach to calculating base salary as an average of the different years used by the parties as representative of the officer’s earnings, including overtime. It had, however, failed to consider the totality of the award and the proportionality to the breach when it decided to award a 20% uplift in respect of a failure to comply with the ACAS Code on Discipline and Grievance.
In a claim based on sex discrimination and victimisation, the claimant employee was not entitled to interim relief or to a declaration that the domestic law’s failure to make provision for that remedy amounted to an incompatibility with her rights under Article 14 of the ECHR, read with Article 6 and Article 8. The Court of Appeal held that the fact that a dismissed claimant in a whistleblowing case could claim interim relief, but a dismissed claimant in a sex discrimination case could not, did not amount to discrimination on the grounds of sex, nor on the grounds of “other status”, since being a litigant in a particular type of case was not a status. In addition to the remedies available to those claiming discrimination and victimisation being no less favourable than those available to a dismissed whistleblower, any such difference in treatment would in any event have been justified.
An employment tribunal had erred in holding that a “gender-critical” belief that sex was biologically immutable, and that sex rather than gender identity was fundamentally important, was not a “philosophical belief” protected under s.10(2) of the Equality Act 2010. The Claimant’s belief, whilst offensive to some, and notwithstanding its potential to result in the harassment of trans persons in some circumstances, fell within the protection under Article 9(1) ECHR. The EAT gave several clear caveats, making clear that this did not give impunity to those with gender-critical beliefs to ‘misgender’ trans persons, nor mean that trans persons were without protection under the Equality Act 2010.
The Supreme Court confirmed that for complaints of discrimination, a two stage process applied and the introduction of s.136(2) of the Equality Act 2010 had not altered the burden of proof. At the first stage of the process, the claimant had the burden of proving, on the balance of probabilities, those matters which they wished the tribunal to find as facts from which the inference could properly be drawn that an unlawful act had been committed. At stage two the burden shifted to the employer to explain such acts. The change of wording from “where … the complainant proves facts” to “if there are facts from which the court could decide” did not mean there was no longer a burden of proof on the claimant at the first stage.
The EAT gave guidance on the scope and application of the “childcare disparity”: that women were more likely to suffer a disadvantage as a result of childcare responsibilities than men. The childcare disparity had been noticed by courts for many years and the EAT explained that it was within the category of matters that an employment tribunal had to take into account if relevant. The EAT also gave consideration to the concept of judicial notice.
In an equal pay dispute, the Court of Appeal held that the “material factor” defence, which had applied from the point at which the employee was appointed to her role in the employer organisation, was still the explanation for a difference in pay between her and her two male comparators a year later. The Court dismissed the appeal, explaining that for each of the male comparators there was at least one causative factor which explained the pay differential.
The EAT confirmed that it was only in exceptional circumstances that it would exercise its discretion to permit a point to be raised on appeal for the first time. It permitted doing so in a case concerning a witness statement that attracted judicial proceedings immunity. There were important public policy considerations, which resulted from the importance of protecting the integrity of the judicial process, and these weighed heavily in favour of allowing the point to be made before the EAT, even though it should have been raised at first instance.
The Supreme Court explained that in calculating the limitation period for a “midnight deadline” case, the day which commenced at or immediately after the midnight hour had to be included in the calculation of the six-year period under s.2, s.5 and s.21(3) of the Limitation Act 1980.
If a worker was required to sleep at or near their workplace and to be available to provide assistance if required, this would count as not working for the purpose of calculating hours for national minimum wage purposes. A requirement to be present during specified hours did not lead to the conclusion that they were working and they were not doing “time work” for the purposes of Reg 32 of the National Minimum Wage Regulations 2015 unless they were awake for the purposes of working.
The Supreme Court unanimously dismissed Uber’s appeal against the decision of the Court of Appeal that private hire vehicle drivers who provided their services through the Uber smartphone application were workers for the purposes of employment legislation, which gives “workers” rights to be paid at least the national minimum wage, to receive annual paid leave and to benefit from certain other protections. The Supreme Court also considered the related question of what time counts, if drivers are “workers”, as working time for the purpose of the relevant rights.
An employment tribunal had not erred in determining that an NHS foundation trust had dismissed an employee because she had made protected disclosures. The tribunal had, however, failed to analyse sufficiently who was responsible for each detriment the employee had suffered in the lead-up to her dismissal. The tribunal had also failed to explain sufficiently why it concluded that such detriment was occasioned on the basis of the employee having made protected disclosures.
The Claimant was a professional interpreter providing services to the two police forces via a contracted supplier. She alleged that she had suffered detrimental treatment after making protected disclosures about the procurement and provision of language services. The ET rejected her claim, finding that the conduct did not entail a detriment or, where it did, was not on the grounds of the protected disclosures. The EAT, in upholding the appeal, found the ET had failed to explain its conclusions and reiterated the need for reasons to meet the principles set out by Bingham LJ, as he then was, in Meek v City of Birmingham DC [1987] IRLR 250. The case was remitted to the Employment Tribunal.
In a case regarding COVID-19 self-isolation, the Claimant had been dismissed after not returning to working after a period of self-isolating following his contact with a colleague who had contracted COVID-19. The Claimant’s decision to stay off work had not been appropriate. It was not directly linked to his working conditions, but to his general concerns about the virus. The Claimant had not taken steps to tell his employer about serious and imminent danger in his workplace and his dismissal had been justified.
In another case dealing with COVID-19 measures, the Claimant lorry driver was dismissed after refusing to wear a face mask in his lorry cabin, as instructed by a client’s employee. The client placed the Claimant on its list of banned drivers. The ET held that dismissal was reasonable, given the employer had been entitled to consider the importance of good relationships with its clients, the effect of the site ban, and the lack of available alternative roles.
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