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Employment law specialists
April 2021 Review

Welcome to our review of employment law news in April 2021.

Law firms in focus

A former partner in Freeths Solicitors has won a disability discrimination claim resulting from how he was treated after being diagnosed with mental health problems and “burn out”.

As reported by Legal Futures, Mike Taplin was one of the firm’s most successful lawyers, specialising in commercial property. He was the highest billing partner for five years, culminating in 2017/18 when he billed £1.14m, with chargeable hours of up to 2600 per year (against a target of 1400), with a further 200-300 hours spent on business development. However, in 2016 he suffered from what a clinical psychologist described as burn out, connected with an adjustment disorder. In the subsequent two years he contemplated suicide. The firm did not have procedures in place to address his problems. Although he had extended periods of absence, the firm failed to make reasonable adjustments when he returned to work. The firm had benefited from his drive and passion for his work but this was contributing to his ill health. The tribunal found that Freeths had “an obligation to apply their minds to how they could prevent the risk to his health that his work may cause”. Had they done so, including a clear “holistic plan”, including a wellness recovery action plan, a mentor and setting performance expectations, there was a real chance that the firm could have removed or avoided the disadvantage that he suffered by reason of his disability. This amounted to direct discrimination.

Mr Taplin resigned in September 2018. He has subsequently commenced working for gunnercooke. The case has been adjourned pending a remedy hearing. The judgment runs to a staggering 187 pages so if you would like further details, rather than setting them out in this summary, you can access it here.

Meanwhile, and also reported by Legal Futures, the chief executive of well-known Cheshire firm Hilary Meredith was not unfairly dismissed when he “ran for the hills” by resigning promptly when he discovered financial problems at the firm. Peter Watson, the former chief executive of Simpson Millar, joined Hilary Meredith in June 2017 and invested £100,000. He appointed a new finance director, Tim Ritchie, who, within days discovered financial irregularities in the business including recording costs advances as profit costs rather than loans, thereby improving the accounts by about £300,000, £1m in unpaid disbursements and payments into office account rather than client account or being used to promptly pay disbursements. He resigned a few days later. He was on 12 months’ notice and was placed on garden leave. He was persuaded by Ms Meredith to return to work, but he was subsequently dismissed for gross misconduct. Ms Meredith claimed that he had “spooked” a non-executive director, Zoe Holland, into resigning and stated:

"Upon learning about this alleged hole in the accounts you then took no steps whatsoever to seek to protect the position of the company.

"Instead, yourself and Tim insisted on a quorum of directors being formed immediately with Zoe Holland on the phone, so that you could resign from your employment…

"Your actions have destabilised the company significantly and have meant that it has suffered substantial damage way beyond what might reasonably have been expected had these matters been dealt with in a responsible and professional manner and in accordance with your duties to the company."

Mr Watson claimed that he had made protected disclosures which had resulted in automatically unfair dismissal.

On appeal to the Employment Appeal Tribunal, Mr Justice Cavanagh disagreed. He said that there was a “legitimate factual basis” to decide that the dismissal was not materially influenced by the disclosures. “Dismissal served a perceived business need”. Whether Ms Meredith’s criticism of Mr Watson’s behaviour was valid or not, it was “understandable” that she might have felt that his resignation would make the job of dealing with the fall-out of the problems more difficult.

"It was also understandable that [she] might have felt resentful that she was being left to deal with the problems on her own. The sense of resentment gradually grew on [her]."

Frankly, it’s an odd decision and, at least on first reading, hard to reconcile with the intention of the legislation. You can read the decision here and make up your own mind. Was Mr Watson’s behaviour really “separate and distinct from the protected disclosures themselves”?

Priti Patel and the ministerial code

There has been a great deal of news coverage about the current Government’s apparent disregard for procedural rules. One of the most obvious examples was the finding that Home Secretary Priti Patel engaged in systematic bullying of civil servants in her department. As you may have read, her former permanent secretary settled his bullying claim after reaching a settlement widely reported to be £340,000 plus costs, after he said that he had witnessed several incidents of bullying and accused her of “creating a climate of fear” as well as engaging in a “vicious and orchestrated briefing campaign” against him. Controversially, Boris Johnson declared that she had not breached the ministerial code, notwithstanding that his then head of standards, Sir Alex Allen, found that her behaviour had “been in breach of the ministerial code, even if unintentionally” and that she had “not consistently met the high standards” of treating civil servants with “consideration and respect”.

The First Division Association (the union for top civil servants) has now secured a High Court review of that decision on the basis that decisions on the ministerial code are “subject to the rule of law”. Mr Justice Linden has granted an application for a full judicial review. In this context, it’s worth bearing in mind that the Government has announced that it is considering restrictions on the scope of judicial reviews.

Successful vaccine rollout encourages staff to return to work

A survey conducted on behalf of Aviva has found that 71% of employed adults said that the vaccine rollout makes them optimistic about returning to work as normal. This is an increase from 50% last November.

75% said that they would be comfortable with taking a COVID test before returning to the workplace and just 13% said that they have COVID related concerns about their health and safety in the workplace.

Addison Lee refused right to appeal decision that drivers are workers following the Uber ruling

As I have been reporting for the last year or so, there is one way traffic when it comes to asserting workers’ rights when it comes to gig workers. The latest in this long line of decisions is that of the Court of Appeal which has determined that Addison Lee’s claim that its drivers are not workers stands no prospect of success following the recent decision of the Supreme Court in the Uber case. It has been estimated that Addison Lee drivers could be entitled to an average of £10,000 each in compensation as a result of the decision, while Uber has set aside up to £400m to compensate their (yes, their) drivers.

More about lawyers, this time about furlough and variation of contractual terms

A solicitor who was dismissed after refusing a demand to vary her contract to permit a furlough and reduction of wages has won her claim for unfair dismissal. Aysha Kahtun was the only member of staff at Winn Solicitors who objected to the proposed changes. Employment Judge Morris, sitting in the Newcastle Employment Tribunal, determined that while the need to make COVID prompted changes justified the dismissal in principle, the employer did not act reasonably in dismissing her for that reason.

He added:

"I find it surprising, especially in a firm of solicitors, that so little regard should have been had by the respondent throughout this process to the fact that the claimant’s existing terms and conditions were contained in a legally binding contract.

"That is not to suggest that a contract of employment cannot be varied, but only by agreement, or that the respondent could not have dismissed and re-engaged recalcitrant employees on different terms and conditions of employment but it would have been reasonable for due process to be followed and I am not satisfied that that was followed in this case."

It was notable that staff were given five days to agree to the changes and that refusing to do so would “lead to dismissal”.

Ms Khatun replied:

"I feel that I am continuing to do deliver the job that I am contracted to, if not more as I now have double the work to as I have to cover a ‘buddy’.

"These are uncertain times and I do not feel comfortable allowing Winns to effectively reduce my pay. In the event that I am furloughed or any other unexpected situation arises, I will of course consider a variation at that point."

She was dismissed the following day and not given a chance to appeal.

Employment Judge Morris said:

"I did not detect even a hint of any reasonable process being followed [at an initial meeting with Ms Khatun].

"Indeed, when I asked [the head of department] whether his evidence was just that there would be no process before dismissal, he answered, ‘Yes – if they didn’t agree the sanction would be applied’.

"His evidence was also that the business “simply could not spend time negotiating with 300+ individual staff”.

"While this might go some way to establishing the ‘some other substantial reason’ for dismissal, I am not satisfied that it sufficiently establishes the reasonableness of the decision.

"In the event, it appears that it would only have been necessary, not necessarily to negotiate, but to engage in a meaningful discussion with the claimant and not the other 300+ staff who accepted the variation."

He also said that it was “remarkable” that the head of department said that Winns could not have people “causing a fuss”. The case has been adjourned for a remedies hearing.

You can read the judgment here. It’s important to note that this decision is not about the principle of asking employees to agree variations of contractual terms such as in response to the extraordinary circumstances resulting from the pandemic. Rather, it’s to do with the employer’s failure to adhere to even the most basic procedural requirements, notwithstanding the unusual demands imposed on them.

Finally, what about a holiday?

Tomorrow (Friday), the Government is expected to announce its plans for international holidays. I’m sure that, like me, you can’t wait to book a holiday so what are the chances? No doubt, we’ll hear about the traffic light system but this is underpinned by the relevant statistics and, of them, above all the current infection rates. So, what are they? Bear in mind that, last summer, the threshold was 20/100,000 for restrictions to apply. No doubt, vaccinations can introduce some flexibility about that but, for your reference, here are the latest (selected) European figures as at 6 May, courtesy of statista.com:

  • Cyprus – 422.4
  • Sweden – 339.3
  • Netherlands – 289.2
  • Croatia – 286.4
  • Turkey – 246 (in full lockdown)
  • France – 209.5
  • Germany – 138
  • Switzerland – 131.4
  • Italy – 125.3
  • Greece – 107.5
  • Spain – 98.6
  • Ireland – 65.6
  • Portugal – 24.7
  • United Kingdom – 21.3
  • Gibraltar – 8.9

Let’s hope that the downward curve continues but I suspect that it’s a while before widespread options are available. As previously reported, if staff choose to visit “amber” countries then there is no obligation to pay them during self-isolation, although those who can work from home may, at the discretion of the employer, be permitted to do so.

Kind regards and, as I have said for well over a year now, very best wishes during this difficult time.

Martin Malone

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He combines his experience in employment law with insolvency, intellectual property and company/partnership disputes.

     
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