Welcome to our July HRizon employment newsletter. We outline the new right to work checking regime, and consider how a requirement to work flexibly, or to work weekends, can lead to a finding of indirect sex discrimination due to childcare disparities faced by working mothers. We also highlight other recent employment law cases and HR news from the last month.

IN THE COURT OF APPEAL

Does historic illegality prevent enforceability of contractual and statutory rights?

Rights cannot normally be enforced in relation to an illegal contract. The Court of Appeal has recently considered whether historic illegality, which has since been rectified, prevents the enforceability of contractual and statutory rights. R worked for Q from 2007 to 2017 under a contract which expressly stated that R was responsible for paying her own tax. However, in early 2014, Q discovered that no taxes had been paid on R's income. In July 2014, Q began to make deductions from payments to R and put them aside to cover the tax liability. R was dismissed in 2017 and she brought claims for wrongful and unfair dismissal, which were rejected by the employment tribunal (ET) on grounds of illegality. The Employment Appeal Tribunal (EAT) went on to hold that, after July 2014, the contract was not performed illegally, and R could bring her claims for wrongful and unfair dismissal. The Court of Appeal dismissed Q's appeal, upholding the decision of the EAT. The Court of Appeal held that a flexible approach to assessing whether a claim was barred for illegality was required and a court should, in addition to considering what a party knew and whether they participated in the illegality, also consider the degree of culpability attributable to the party trying to enforce the contract, the seriousness of the illegality and the proximity of the illegality to the bringing of the claim. The EAT had been entitled to find that R's illegality between 2007 to 2014 did not prevent her from asserting her rights under the contract after this period of illegality had ended. Historic acts of illegality can be relevant, but they need to be considered in conjunction with the seriousness of the illegality, how much time has passed between any acts of illegality and the claims being brought and how closely the illegality was connected to the claims. It is also possible to sever periods of illegality from periods of time during which contractual arrangements were conducted lawfully. (Robinson -v- Al-Qashimi [2021] EWCA Civ 862)

IN THE EMPLOYMENT APPEAL TRIBUNAL

Whistleblowing: if the decision to dismiss is motivated by the worker's protected disclosures, are the motives of other managers relevant?

It is automatically unfair to dismiss a worker because they are a whistleblower who has made a protected disclosure. The ET will consider if the whistleblowing is the reason, or principal reason, for the dismissal. Ordinarily, a tribunal need look no further than the reasons given by the appointed decision maker, but they can look behind those reasons (to the underlying motivations of the employer or more senior managers) if they have been manipulated by others to dismiss for an invented reason and innocently acted on that basis (this is known as the Jhuti principle). The EAT has recently considered whether the motives of other managers are relevant where the decision maker's decision to dismiss is itself motivated by the worker's protected disclosures.

The employee, F, a nurse, worked as a clinical care coordinator for the district nursing service of an NHS trust. She had 38 years' unblemished service with the NHS and been personally commended by the Care Quality Council. In 2015, a change in policy by the local authority, meant that F's team of district nurses had been subjected to an increasing workload. Concerned about the increasing workload of her staff, F began to express concerns about matters that she believed were impacting upon her team of nurses and the quality of care being provided to patients. Between December 2015 and October 2016, F made 13 protected whistleblowing disclosures. In October 2016, following the death of a patient, F informed a senior manager that she intended to invoke its formal whistleblowing policy. After taking some annual leave, F was immediately suspended upon her return to work. F was then subjected to disciplinary investigation (during which she raised a grievance that was rejected), dismissed and her appeal against dismissal rejected.

The ET upheld F's unfair dismissal claim, holding that F's treatment was not only 'grossly unfair, but was the culmination of a process, involving numerous people, designed to get rid of her because she had made protected disclosures'. The tribunal found that F had been dismissed for the reason, or principle reason, that she had made protected disclosures. This was not a Jhuti type case, in which an innocent decision maker had been manipulated by others into dismissing the claimant, but a case in which the tribunal found as a fact that the reason, or principle reason, of the disciplinary hearing panel for dismissing F was her making protected disclosures.

The EAT partially upheld the employer's appeal:

  • F's claims of pre-dismissal detriment were not considered in sufficient detail by the tribunal, because there was insufficient analysis of who were the relevant decision makers in respect of each specific detriment, and why it was concluded they had acted on the grounds of F having made protected disclosures. The case will be sent back for the tribunal to reconsider those claims;
  • However, the employer's appeal regarding the unfair dismissal claim was dismissed by the EAT. The tribunal had properly considered the reasoning process of the chair of the panel (who was the only witness called by the respondent to explain the reasoning process of the panel) and concluded that the decision to dismiss was motivated by F's whistleblowing disclosures.

The EAT stressed that the Jhuti principle is not applicable if the decision maker is going along with an overall plan to remove a whistleblower. F's case could properly be distinguished from Jhuti. This was not a situation where an innocent decision maker had been deceived into dismissing her; the panel had knowingly dismissed F because she had made protected disclosures. Indeed, the fact that a whistleblower's dismissal appears to be the culmination of a plan to get rid of them, may be circumstantial evidence to support the conclusion that the decision maker dismissed because the worker had made a protected disclosure. (University Hospital of North Tees & Hartlepool NHS Foundation Trust -v- Fairhall [2021] UKEAT 0150_20_3006)

Constructive dismissal: Can a fundamental breach of contract be cured by subsequent actions?

Where an employer commits a fundamental breach of contract, an employee is entitled to resign and bring a constructive unfair dismissal claim. The EAT has recently considered whether an employer's subsequent actions can cure its earlier fundamental breach, and thus disentitle the employee to resign and claim they have been dismissed.

F worked as a school learning support assistant, whose duties included giving physical support and assistance to pupils. From September 2017, F was required to give support to a disabled pupil, and this involved her in daily weight-bearing and lifting work. F repeatedly requested manual handling training, but despite assurances that steps would be taken to arrange this, the training never materialised. Within a few months, F notified her employer that she had developed back pain. A few months later, in early May 2018, F was signed off for three weeks with back pain. When discussing her return to work, the head teacher said that the requested manual handling training was being organised for her and other staff in the following few weeks. On 5 June 2018, F resigned. She referred to her numerous requests for training, her continuing back issues and previous situations when she had sustained injuries and stress within her working environment. The employment tribunal dismissed F's constructive unfair dismissal claim. The tribunal held that while the employer had been in breach of the Manual Handling Operations Regulations 1992, it was not in fundamental breach of its implied duty to take reasonable care for F's health and safety. In holding this, the tribunal took account of communications that demonstrated that the employer had genuine concern for F's health and safety and had taken steps to ensure that she would not be exposed to danger in the future.

The EAT upheld F's appeal and substituted a finding of unfair dismissal. F's complaint was that the employer had breached the implied duty to provide a safe work environment when it failed, despite her repeated requests, to provide F with manual handling training over a period of many months. The tribunal had erred by only looking at the overall picture at the point of resignation; it had failed to determine whether a fundamental breach had occurred at some earlier stage. It is not possible for an employer's subsequent actions to cure its earlier fundamental breach. If the employer takes steps to put matters right after a fundamental breach, the employee can choose to affirm the contract, but they are under no obligation to do so and they do not lose the right to resign and claim constructive dismissal. (Flatman -v- Essex County Council [2021] UKEAT 0097_20_1201)

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