Frontline UK Employment Law Update Edition 21 2023 - Case Updates

1. Edward v Tavistock and Portman NHS Trust [2023] EAT 33

2. Kaul v Ministry of Justice and ors [2023] EAT 41)

3. McQueen v The General Optical Council [2023] EAT 36

4. B.L.I.S.S. Residential Care Ltd v Fellows [2023] EAT 8  

5. Miles v Driver and Vehicle Standards Agency [2023] EAT 62 

6. Morris v Lauren Richards Ltd [2023] EAT 19 

Edward v Tavistock and Portman NHS Trust [2023] EAT 33

In this case, the Employment Appeal Tribunal (“EAT”) considered the correct approach to determining whether a claimant has failed to mitigate their loss and how compensation should be reduced for failure to mitigate.

The Claimant was an NHS Data Officer at band 5.  He successfully claimed victimisation in the Employment Tribunal (“ET”) having been dismissed after making allegations of unlawful discrimination against the Respondent.  The Respondent had first downgraded the Claimant to a band 4 role and then dismissed him on the grounds that there were no band 4 vacancies.  He was unemployed for two and a half years following his dismissal and had not applied for any band 4 roles in the NHS, but by the time of the ET remedy hearing he had been employed for three months on a fixed term contract paying a higher salary. 

The ET applied a 50% discount to a proportion of the Claimant’s loss of earnings on the basis that he had failed to mitigate his losses.  The 50% reduction was said to reflect the prospect that he would have secured alternative employment if he had applied for band 4 roles which, the ET said, the Claimant “should have” done.

On appeal, the EAT was not satisfied that the ET had applied the correct test for determining the question of mitigation.  It held that the ET’s reasoning had not set out any legal directions and it was not clear whether it had (as it should have) placed the burden of proof on the Respondent to prove the Claimant acted unreasonably in failing to mitigate, rather than placing the burden on the Claimant to prove that he had not done so. The EAT held that the case should be remitted to the ET to determine this issue again, taking into account all of the circumstances.

The EAT also concluded that the ET had erred in law by making a percentage reduction to the award for loss of earnings to reflect the Claimant’s failure to mitigate.  The ET should have considered what would have happened, if the Claimant had not failed to take reasonable steps to mitigate his loss, making findings as to when the Claimant would have found a job and what it would have paid, on the balance of probabilities. In doing so, the ET should have considered the questions identified in the case of Gardiner-Hill v Roland Berger Technics Ltd [1982] IRLR 498:

1. What steps was it unreasonable for the Claimant to not have taken?
2. When would those steps have produced an alternative income?
3. What amount of alternative income would have been earned?

The EAT added that the Gardiner-Hill questions should not be considered as exhaustive and may not be applicable in every case.

This decision serves as a reminder that the burden is always on the respondent employer to prove that a claimant employee (or ex-employee) has failed to take reasonable steps to mitigate their losses.  If this cannot be proven, on a balance of probabilities, an ET will not find that the claimant has failed to mitigate.  Nevertheless, claimants do have a positive duty to take reasonable steps to reduce the financial loss incurred as a result of wrongdoing by their employer and if they do not do so the ET will consider what steps should have been taken, when they would have resulted in alternative income and how much, and award compensation accordingly.

Kaul v Ministry of Justice and ors [2023] EAT 41

In this case, the Employment Appeal Tribunal (“EAT”) held that an Employment Judge had not erred in striking out some of the Claimant’s claims against the Ministry of Justice, the Lord Chancellor and the Lord Chief Justice (the “Respondents”) on the grounds that they had no reasonable prospect of success.

The Claimant, a serving circuit judge, issued proceedings against the Respondents in the Employment Tribunal (“ET”) relating to the handling of two grievances. The first grievance related to the actions of three other judges, and the second related to the actions of court staff.

The Claimant raised the grievances in 2019, related to events starting in 2015. In 2020 the grievances were dismissed by the Respondents on the basis that they were out of time under the applicable grievance policy, which lead to the Claimant commencing ET proceedings relating to the Respondents (1) failure to deal with staff grievances within a reasonable period of time, (2) requiring the Claimant to submit a schedule listing the complaints made,  (3) requiring her to set out why the complaints were not out of time, (4) deciding not to determine the grievance on its merits, and (5) refusing to accept that the Claimant had a disability. In each claim, the Claimant contended that these grounds amounted to (a) victimisation (under section 27 of the Equality Act 2010 (the “Act”); (b) indirect discrimination on grounds of disability (section 19 of the Act); (c) failure to make a reasonable adjustment (section 20 of the Act), but her particulars of claim did not explain on what basis she considered the factual matters pleaded to amount to unlawful discrimination. 

Each claim was resisted by all of the Respondents, who applied under Rule 37(1)(a) of the Employment Tribunals Rules (Schedule 1 to the Employment Tribunals (Constitution and Rules of the Procedure) Regulations 2013) for the claims to be struck out on the grounds they had no reasonable prospect of success. The application was partially successful in the ET, with the Employment Judge declining to strike out the complaints based on the decision not to decide the staff grievance on its merits, but finding that the remainder of the complaints had no reasonable prospect of success.

The Claimant appealed the decision on the grounds it was not open to the Employment Judge to decide to strike out claims with no reasonable prospect of success. However, the EAT upheld the strike-out, noting that although caution was required when considering a strike-out application, this “does not prohibit a realistic assessment where the circumstances of the case permit” (paragraph 22).  As the facts of the case rested on undisputed events, which were “at face value…entirely ordinary matters” (paragraph 50) regarding the handling of the Claimants grievances, and there was no explanation in Claimant’s claim of how such matters amounted to unlawful discrimination, the Employment Judge had been entitled to find that the claims would inevitably fail.

ETs are generally very cautious about striking out claims as having no reasonable prospect of success, particularly at a preliminary stage in proceedings, before all of the evidence has been heard.  This is particularly the case in discrimination claims.  This case serves as a useful reminder that whilst caution will be exercised, claims can be struck out in appropriate cases.  In this case, the Claimant's particulars of claim “simply asserted – in terms that can only be described as formulaic – that each event gave rise to a series (in some instances, the same series) of causes of action…” and “little if anything at all to explain why the events relied on ought not to be accepted at face value.”  In these circumstances it was open to the Employment Judge to conclude that the claims were weak.

McQueen v The General Optical Council [2023] EAT 36

In this case, the Employment Appeal Tribunal (“EAT”) found that an Employment Tribunal (“ET”) was entitled to dismiss the Claimant’s claims of discrimination because of something arising from disability under section 15 of the Equality Act 2010 (the “Act”) where the Claimant’s disabilities had no effect on the aggressive behaviours for which he was disciplined.

The Respondent employed the Claimant as a registration officer. Over the course of the Claimant’s employment, he had several “meltdowns” where he raised his voice and displayed aggressive body language towards his colleagues during stressful situations. The Claimant argued that his “meltdown behaviours” arose in consequence of his disabilities (dyslexia, symptoms of Asperger’s, neurodiversity and hearing loss). The first “meltdown” led to a referral to occupational health which recommended that in future, the Claimant should be provided with written instructions if he was being asked to change how a task was carried out. Further incidents resulted in disciplinary action and a formal warning. The Claimant then raised a grievance and submitted a claim under section 15 of the Act.

The ET dismissed the claim, finding that the Claimant’s inappropriate behaviour at work did not arise in consequence of disability. Having considered the medical evidence, the ET held that the outbursts were caused by the Claimant’s “short temper” and because he “resented being told what to do”. The Claimant appealed to the EAT, arguing that the ET misapplied the broad test of causation required when a claim under section 15 of the Act is brought. The Claimant contended that the correct test was whether his disability had “more than trivial influence” on the “something” (i.e., his conduct) arising in consequence.

The EAT dismissed the appeal and upheld the ET’s decision that there must be a clear link between the “something” leading to the unfavourable treatment and the disability. Even though the Claimant consistently determined a link between his disabilities and his behaviour at work, the ET was not entitled to accept that view based on the medical evidence. As the Claimant’s disabilities played no part in his conduct, there was no need for the ET to consider if the unfavourable treatment was partly because of his disabilities. Despite criticism of the ET’s unusual reasoning and structure of its judgement, the EAT did not find any error of law or principle.  The EAT was satisfied that no “principal reason” or “predominant cause” test had been applied. The EAT also provided helpful guidance as to how to structure decisions in section 15 cases, stating the questions to ask are:

1. what are the disabilities;
2. what are their effects;
3. what unfavourable treatment is alleged in time and proved; and
4. was the reason for the unfavourable treatment an effect or effects of the disabilities?

The EAT’s decision highlights that sufficient and specific medical evidence will be required by claimants to prove their case in claims of discrimination because of something arising in consequence of a disability. The manifestation of a disability will vary from person to person, therefore it is important that employers seek medical advice to ensure that they understand their employees’ disabilities, the way in which such disabilities may or may not impact on an employee’s conduct and behaviour in the workplace and any reasonable adjustments that can be made.

B.L.I.S.S. Residential Care Ltd v Fellows [2023] EAT 8

In this case, the Employment Appeal Tribunal (“EAT”) found that the Employment Tribunal (“ET”) should not have allowed a claim submitted out of time to proceed, in circumstances where the delay was due to mistakes made by the Claimant’s solicitor.   

The Claimant was dismissed by the Respondent on 8 October 2020 and instructed solicitors to prepare and submit an unfair dismissal claim on her behalf.  The deadline for submitting her claim (taking into account an extension for ACAS early conciliation) was 10 March 2021.  The Claimant’s solicitor was newly qualified, and the Claimant’s claim was her first experience of handling ET proceedings.  She incorrectly calculated the deadline for submission of the claim to be 13 February 2021, and when submitting the claim sent it by post to the wrong address, having failed to take into account the Presidential Practice Direction setting out the correct methods of submitting an ET1.  She received a letter on 10 March 2021 confirming that the claim had not been correctly filed and submitted it (again by post) to the correct address.  It arrived at the ET office on 12 March 2021.  If filed online, on 10 March 2021, the claim would have been in time. 

The ET held that it had not been reasonably practicable for the claim to be filed by 10 March 2021, taking into account the Claimant’s solicitor’s lack of experience and difficulties with her supervision that had been caused by the COVID-19 pandemic.  

The EAT disagreed.  It held that the solicitor had made several serious errors in miscalculating the time limit, filing the ET1 at the wrong address and then failing to submit the ET1 online once she was aware that it had not been correctly filed.  These were unreasonable errors, even for a solicitor working on her first claim and taking into account the circumstances of the pandemic.  Unreasonable ignorance or mistake by a skilled legal adviser is attributed to the claimant.  It had been reasonably practicable for the claimant to submit the claim in time and so the claim, having been filed late, could not proceed. This case demonstrates that whilst the ET has discretion to extend the time limit for submission of an unfair dismissal claim in certain circumstances, it should not do so where unreasonable errors on the part of a skilled legal advisor have caused the delay. 

Miles v Driver and Vehicle Standards Agency [2023] EAT 62

In this case, the Employment Appeal Tribunal (“EAT”) upheld the Employment Tribunal’s (“ET”) decision to dismiss claims of health and safety detriment and dismissal, but remitted claims of disability discrimination to the ET.

The Claimant, a driving examiner at the Respondent’s Pontefract office, suffered from chronic kidney disease. When the COVID-19 pandemic hit in March 2020, all but critical driving tests were suspended. In July 2020, driving tests resumed, and the Respondent required driving instructors, including the Claimant, who was considered clinically vulnerable, to return to work. Only those who were clinically extremely vulnerable were not required to return to work. The Respondent implemented several adjustments to its usual practices to support the Claimant in his return to work. However, the Claimant refused to return to work and was put on unpaid leave. He resigned and brought claims against the Respondent for health and safety detriment and dismissal, constructive unfair dismissal, and disability discrimination. All claims failed before the ET and the Claimant appealed to the EAT.

The claims under s.44(1)(c) and s.100(1)(c) of the Employment Rights Act (“ERA”) failed because while the ET found that the Claimant had brought to his employer’s attention circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, these sections of ERA provide that for the relevant claim to succeed there must either be no health and safety representative committee at the workplace or if there is, it must be not reasonably practicable for the employee to raise the matter by those means.  The ET had found that there was a health and safety committee and representative covering the Respondent’s Pontefract office (although not based there) with whom the Claimant could reasonably have raised his concerns.

The EAT held the ET was entitled to dismiss these claims, rejecting the Claimant's argument that the representative or committee had to be based at his workplace to preclude such claims. The provisions could sensibly be interpreted to require that there need only be a representative or safety committee for the place at which the Claimant worked. This interpretation avoided absurdity and was consistent with the purpose of the statutory provisions. As noted by the ET, the Claimant’s construction would mean that the Respondent would have to have a safety representative or committee at each of its 1000 testing centres, even if there was a safety representative for the test centre who was easily contactable.

The EAT also upheld the ET’s decision to dismiss the claims under s.44(1A) and s.100(1)(d) ERA which protect employees from detriment or dismissal on the grounds that “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work”. The ET had considered government guidance, legislation, and contemporaneous material from Public Health England, along with the steps taken by the Respondent to minimise risks. While the ET was critical to some extent of the Claimant’s failure to seek a referral to occupational health, this was only part of the multifactual analysis it applied in determining the Claimant did not hold a reasonable belief in a serious and imminent danger to himself and accordingly, the EAT dismissed the appeal on this ground.

Finally, on the claims of disability discrimination, the ET concluded that the Claimant's decision not to return to work was not a result of his impairment but rather an "unreasonable belief". However, the EAT held that the reasoning provided by the ET was insufficient and inconsistent with its earlier acceptance that the Claimant reasonably believed his work circumstances were harmful to health when considering the s.44(1)(c) and s.100(1)(c) claims. The EAT acknowledged that the ET did not have the benefit of a subsequent analysis in Da Silva Prima v Carl Room Restaurants Ltd, in which a person had a genuine but irrational belief that she had to avoid certain activities because of her existing and previous medical conditions. The EAT believed that the Claimant's disability discrimination claims should be reconsidered in light of the Prima case, to determine if there was a break in the chain of causation preventing the Claimant's decision not to return to work from being a substantial adverse effect resulting from his impairment.

As a result, the EAT remitted the disability discrimination claims back to the ET for further consideration. If the disability discrimination claim succeeded on remittal, it could potentially lead to the conclusion that the Claimant was constructively dismissed.

This decision confirmed that the ET will take a purposive approach to s.44(1)(c) and s.100(1)(c) of ERA; health and safety representatives or committees do not have to be physically based at a workplace for detriment or dismissal claims which is welcome news for employers with multiple sites across England and Wales.   

Morris v Lauren Richards Ltd [2023] EAT 19

In this case, the Employment Appeal Tribunal (“EAT”) held that an Employment Tribunal (“ET”) erred in law when determining that an individual was not disabled under the Equality Act 2010 (the “Act”) by focusing on the likely impact of termination of employment on the individual's anxiety when assessing whether the effect of the anxiety was long-term.

The Claimant brought a claim for disability discrimination against the Respondent, her former employer. There was a Preliminary Hearing in the ET to determine whether the Claimant was disabled for the purposes of s.6 of the Act. The ET found that the Claimant suffered from an impairment (anxiety) which had a substantial adverse effect on her ability to carry out normal day-to-day activities. However, she had only experienced the effect of anxiety for three and a half months at the time of the alleged discrimination and the anxiety had arisen from matters related to work. The primary issue for the ET, therefore, was whether this effect was long-term, as set out in paragraph 2(1) of Schedule 1 of the Act:

“The effect of an impairment is long-term if—

(a) it has lasted for at least 12 months,

(b) it is likely to last for at least 12 months, or

(c) it is likely to last for the rest of the life of the person affected.”

In assessing whether the effect of the Claimant’s anxiety was likely to last for at least 12 months, the ET took into account the fact that her anxiety related to workplace issues and was therefore unlikely to persist following the termination of her employment. The ET concluded that the effect was not long-term, and the Claimant was not disabled under the Act.

The Claimant appealed.  She argued that the ET had been wrong to take into account events that occurred after the relevant act of discrimination, namely her dismissal, when considering whether her condition was long term.

The EAT upheld the appeal.  It stated that the threshold set for an ET of likelihood, i.e., whether it is something that “could well” happen, is a low one.  The ET therefore had to make an assessment on the available evidence as to whether the Claimant's condition and its effects, from which she was suffering at the date of dismissal, “could well” continue for another eight-and-a-half months, having persisted for three-and-a-half months up to the date of dismissal. It held that the ET had been wrong to attach material weight to the fact that her anxiety had been caused by the workplace and was unlikely to persist after termination of her employment. The EAT remitted the question of long-term effect to the ET.

This case highlights the approach an ET should take in assessing whether an individual is disabled for the purposes of the Act. It is a useful reminder of the low threshold to be applied when considering the likelihood of the effects of an impairment lasting for at least 12 months. Even if the effect is relatively short-term, if it had been present prior to the act of discrimination, an ET is entitled to find that it amounts to a disability because it “could well” last for 12 months or more.