Constructive Dismissal and the ‘Last Straw’ Doctrine
Craig v Abellio Ltd: on 10 September 2021, the Employment Appeal Tribunal (EAT) heard a case involving a constructive unfair dismissal claim put forward by Craig against Abellio Limited. Constructive unfair dismissal claims arise when an employee has resigned as a result of conduct by the employer, and this conduct constitutes a repudiatory breach of contract.
The claimant experienced a range of issues with reference to working hours and the payment of wages which led to several sickness absences related to stress and encouraged Craig to make the decision to resign.
The Employment Tribunal (ET) had rejected the claimant’s claim, finding that the employer had not committed a breach of contract as it ruled that the grievance process had found in the claimant’s favour and therefore that Abellio was not guilty of any fundamental breach of contract. The claimant appealed. The EAT considered the ‘last straw doctrine’ which relates to a final event as the ‘last straw’ in a series of events, which leads the employee to resign. The ‘last straw’ under these circumstances related to £6,144 which was owed to Craig in sick pay and was not paid on the specified date. The EAT allowed the appeal based on the lack of consideration by the ET of last straw doctrine and the series of mistreatment by the employer which led to the ‘last straw’. The case will be reconsidered by a different ET on this basis.
Constructive Dismissal and Indirect Sex Discrimination
Allen v Primark: Natasha Allen was employed by the clothing retail brand Primark between August 2011 and September 2019. Allen made an application for flexible working in order to accommodate childcare needs, but this was rejected by Primark. Allen resigned on 24 September 2019 and subsequently pursued a claim for indirect sex discrimination and constructive dismissal.
Allen argued that the refusal to agree to her flexible working request was based on a Provision, Criterion or Practice (PCP), which is a ‘rule’ that places individuals with a specific protected characteristic (in this case sex) at a particular disadvantage, was unfair on women with childcare responsibilities. The Employment Tribunal (ET) initially dismissed the claim put forward by Allen and she appealed to the Employment Appeal Tribunal (EAT).
The two grounds for appeal related to the ET not identifying the correct comparison pool for the PCP, which included men, and failing to provide a suitable explanation for the rejection of alternative pools for comparison. The ET had redefined the PCP, stating that Allen had been asked to work on the Thursday late shift, which childcare responsibilities did not allow for. However, the PCP was actually that it was a requirement for Allen to guarantee availability for the Thursday late shift. Therefore, the comparison pool selected by the ET was incorrect and the EAT allowed the appeal on both grounds.
Religion-based Harassment
Ali v Heathrow Express and Redline Assured Security Ltd: Mr Ali brought a claim for harassment based on his religious beliefs against Heathrow Express and Redline Assured Security Limited. The claim related to a security test whereby the respondent used a bag containing a box, electrical cabling and a note which read ‘Allahu Akbar’. The main aim of this test was to ensure that security staff identified such an item as a security risk and the job was being conducted effectively.
Ali took offence to the use of ‘Allahu Akbar’ to highlight a suspicious item as this was a phrase used widely in the Muslim religion and it was an offence for the respondent to associate the phrase with terrorist actions. The Employment Tribunal (ET) rejected the claim. Mr Ali appealed to the Employment Appeal Tribunal (EAT) on the grounds that the decision made by the Employment Tribunal (ET) was perverse and there was a failure on the part of the ET to provide suitable reasons for the decision. The words ‘Allahu Akbar’ has been used in recent terrorist attacks in the UK and therefore, the phrase was used to emphasise the suspicious nature of the item. As a result, the EAT held it was not reasonable for Mr Ali to take offence to the wording/ incident. The EAT therefore dismissed the appeal.
Victimisation following a Protected Act
Warburton v Chief Constable of Northamptonshire Police: A respondent victimises a claimant if it subjects them to a ‘detriment’ because they have done, or might do, a ‘protected act’ (or because it believes that the claimant has done, or might do, such an act) The following are protected acts:
- Bringing proceedings under the Equality Act 2010 (the Act).
- Giving evidence or information in connection with proceedings under the Act, regardless of who brought those proceedings.
- Doing any other thing for the purposes of or in connection with the Act.
- Alleging (whether expressly or otherwise) that the respondent or another person has contravened the Act.
The Employment Appeal Tribunal (EAT) in this case held that an Employment Tribunal (ET) erred in its approach to determining whether a job applicant complaining of victimisation had suffered a detriment. Mr Warburton was unsuccessful in his application to Northamptonshire Police because the vetting process was put on hold pending the outcome of his disability discrimination claim against Hertfordshire Police. The EAT held that the ET erred in finding that the failure to progress Mr Warburton’s application did not constitute a detriment under the Act. Detriment should be interpreted widely and is not a wholly objective test: it is enough that a reasonable worker might take the view that the conduct was detrimental, even if a reasonable tribunal did not think that it was. The case was remitted for a rehearing by a differently constituted tribunal.
Unfair Dismissal and Redundancy
White v HC-One Oval Ltd: The Employment Appeal Tribunal (EAT) has held that an Employment Tribunal (ET) was wrong to strike out a claim for unfair dismissal on the basis that it had no reasonable prospect of success because the claimant had requested redundancy. HC-One Oval Ltd intended to reduce the amount of employees working in reception and administrative areas. Ms White was placed at risk of redundancy and subsequently volunteered for redundancy which was accepted by HC-One Oval Ltd. Ms White argued that the redundancy process was not genuine and that she had been targeted for dismissal. The ET struck out the claim. It held that, because Ms White had requested redundancy, the employer would be able to establish the reason for, and reasonableness of, her dismissal.
However, the EAT found that the tribunal had erred in law. Had the tribunal engaged with Ms White’s case at its highest, as required, it could not have found that there was no reasonable prospect of success. If Ms White’s account of the background to the redundancy was accepted, the facts known to the decision maker might well be found to include matters other than just Ms White’s redundancy request.
In addition, Ms White alleged that the redundancy process was a sham. Even if the tribunal was satisfied with the reason for dismissal, it would still need to consider the fairness of the process. There was a factual dispute here which was not suitable for summary determination. The case was remitted to the tribunal for consideration by a different judge.
Unfair Dismissal and Reasonable Adjustments
Knightley v Chelsea & Westminster Hospital NHS Trust: In this case, the Employment Appeal Tribunal (EAT) held that a dismissal is not necessarily unfair if an employer dismisses a disabled employee and fails to make a reasonable adjustment during that process.
In this case, Ms Knightley, who was disabled under the Equality Act 2010 due to suffering from stress, anxiety and reactive depression, was dismissed following a capability procedure. Her employer denied a request by Ms Knightley to extend the time for her to appeal against her dismissal. The Employment Tribunal held that there was a failure to make reasonable adjustments but that the dismissal was fair overall. The tribunal also rejected Ms Knightley’s claim for discrimination arising from a disability, finding that her employer’s actions in dismissing her were proportionate.
Ms Knightley appealed to the EAT on several grounds, one of which was that the dismissal ought to have been held to be unfair due to her employer’s failure to make a reasonable adjustment during the appeal process. The EAT held that the conclusion on the claim for failure to make reasonable adjustments did not reflect on the merits of the case for dismissal or the dismissal itself and Ms Knightley’s appeal was therefore not upheld.
Automatically Unfair Dismissal and Covid-19
Rodgers v Leeds Laser Cutting Limited: In this case, the Employment Appeal Tribunal (EAT) has upheld an Employment Tribunal’s (ET) decision that an employee who was dismissed due to refusing to return to the workplace during the Covid-19 pandemic, was not automatically unfairly dismissed under section 100 of the Employment Rights Act 1996 (Section 100). Mr Rodgers commenced employment with Leeds Laser Cutting Limited (the Company) on 14 June 2019 as a Laser Operator. His job role could not be done from home.
Due to the Coronavirus pandemic, a risk assessment was carried out in March 2020 which recommended social distancing, sanitising surfaces and staggering start/finish/lunch/break times. Most of the recommendations were already in place. On 29 March 2020, Mr Rodgers sent an e-mail to his line manager stating that he was unable to come into work until the pandemic eased as he had a child with sickle cell disease who could be very unwell if he got the virus and also a seven-month old baby. On 30 March 2020, Mr Rodgers transported a friend to hospital by car and he also worked in a pub during the lockdown. On 24 April 2020, the Company sent Mr Rodgers his P45.
Mr Rodgers brought a claim for automatically unfair dismissal on health and safety grounds. Under Section 100, an employee is automatically unfairly dismissed if the reason for dismissal is 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 concluded that this case did fall within Section 100, that Mr Rodger’s concerns about the virus were general ones and that his concerns were not directly attributable to the workplace. Mr Rodgers did not refuse to return to his workplace due to the conditions there but refused to return until the national lockdown was over. Further, his actions during the lockdown countered his contention that serious and imminent circumstances of danger prevented him from returning to work. Mr Rodgers appealed to the EAT and his appeal was dismissed.
For advice on unfair dismissal, discrimination, redundancy or any other Employment Law issues please contact Elizabeth Judson at elizabeth.judson@dtmlegal.com or Tom Evans at tom.evans@dtmlegal.com
