In this month’s highlights, our team summarises the latest developments in UK employment law and their implications for employers.
1. In Prähl and Ors v Lapinski, the Employment Appeal Tribunal (the “EAT”) upheld an employment tribunal’s decision that it had jurisdiction to hear discrimination claims against three individual respondents based outside of the UK.
What led to the dispute, and why is the outcome significant for employers?
- The claimant was employed by a Swedish company within the Triton Group. The claimant relocated to the UK in 2020 and become a member of a limited liability partnership, TIA LLP, which also formed part of the Triton Group.
- Under the Equality Act 2010, the claimant made complaints before an employment tribunal against TIA LLP and several individual respondents, some of whom lived in Sweden.
- The employment tribunal posted the notice of claim and the claim form to each of the respondents’ Swedish addresses. The Swedish respondents confirmed receipt of the documents.
- The Swedish respondents argued that the tribunal lacked international jurisdiction to hear the claims against them because:
- they were not in the UK at the time that the claim was issued or served;
- the claim was not served on them personally in the UK;
- the claim was not sent to an address in the UK at which they were domiciled; and
- the Swedish respondents did not submit to the jurisdiction of the tribunal.
- The Swedish respondents also argued that, since they were also members of the TIA LLP, they could not be considered the claimant’s employer.
- Before Brexit, the Recast Brussels Regulation (No.1215/2012) established EU-wide rules for determining jurisdiction. After Brexit, these rules were replaced by the new Section 15C of the Civil Jurisdiction and Judgments Act 1982. The EAT needed to consider the appropriate approach to take in light of this legislative change.
- The EAT agreed with the employment tribunal’s original decision that the tribunal had jurisdiction to hear the claimant’s claims against the Swedish respondents. The EAT concluded that:
- The purpose of Section 15C is to avoid multiple claims being brought in various jurisdictions regarding the same matter.
- The new legislation is intended to create continuity with previous EU regulations and protections for employees’ rights.
- In light of this, the EAT determined that it should follow the flexible interpretation of the terms “employee” and “employer” laid down by previous Brussels regulations. Previous case law on these regulations confirmed that a “contract of employment” may cover a claimant who is a member of an LLP.
- In relation to employment contracts, Section 15C should follow Brussels Regulation in favouring the weaker party when deciding which jurisdiction should hear an employment dispute.
Takeaways:
- UK-based employees can bring discrimination claims against non-UK based employers and individual respondents.
- Under the new Section 15C of the Civil Jurisdiction and Judgments Act 1982, the terms “employee” and “employer” are interpreted broadly and purposively. This is in line with the approach used in earlier EU rules. It may include situations where there is no contract of employment, or an individual is a member of a partnership.
2. In Hindmarch v North-East Ambulance NHS Foundation Trust, the Employment Appeal Tribunal confirmed that an employer is not required to make reasonable adjustments for an employee with a disability if those adjustments are unlikely to successfully remove or reduce the disadvantage the employee faces because of their disability.
What led to the dispute, and why is the outcome significant for employers?
- Mr. Hindmarch, a non-emergency ambulance driver, refused to return to work during the COVID-19 pandemic because his employer did not provide a certain type of protective face mask (an FFP3 mask, rather than the FFP2 masks which are normally given to non-emergency drivers). Mr. Hindmarch claimed that the FFP3 mask was required to ease his anxiety about catching COVID-19 while transporting sick patients.
- Whilst Mr. Hindmarch argued that the FFP3 mask would help him return to work, he did not explicitly state that he would return if provided with one.
- Mr. Hindmarch was subsequently dismissed on the grounds of capability due to ill health. He brought several claims against his previous employer, including failure to make reasonable adjustments and unfair dismissal.
- Under the Equality Act 2010, an employer must make reasonable adjustments to avoid employees with disabilities facing disadvantages in comparison with employees who do not have a disability.
- The EAT agreed with the employment tribunal that Mr. Hindmarch’s claims should be dismissed. It found that, since Mr. Hindmarch’s anxiety surrounding COVID-19 was so acute, there was no real prospect that the FFP3 mask would allow Mr. Hindmarch to return to work.
- The EAT also agreed with the employment tribunal that, balancing the needs and interests of the employer and the employee, Mr. Hindmarch’s dismissal was justified. It agreed that Mr. Hindmarch’s unfair dismissal claim failed.
Takeaways:
- The law requires employers to take reasonable steps to prevent disabled employees from being unfairly disadvantaged compared to those without disabilities.
- An employer is under no duty to make an adjustment if there is no real prospect of the adjustment helping to avoid the disadvantage faced by a person with a disability.
3. In Higgs v Farmor’s School, the Supreme Court would not allow an appeal of a ruling by the Court of Appeal that found it was unlawful to dismiss a school employee for sharing views on social media that were tied to her conservative Christian beliefs, even if those views were seen as discriminatory. Our team summarised the Court of Appeal’s decision here.
Takeaways:
- Employers still have an obligation to ensure that workplaces are free from unlawful discrimination and harassment.
- If alleged discrimination takes place because of a manifestation of religious beliefs, employers should assess whether that belief was expressed in an objectionable way, taking into account:
- whether the statement was made in a work environment;
- whether the statement causes reputational damage to the employer; and
- whether there is any evidence of the employee showing culpability for the alleged behaviour and whether they are likely to repeat such behaviour.
- Any action taken by an employer must be proportionate and reasonable, even if they find that an alleged discriminatory belief was expressed in an objectionable manner.
4. In APD RPO UK v Haycocks, the Supreme Court would not allow an appeal of a ruling by the Court of Appeal which found employers are not required to consult the wider workforce for an individual redundancy dismissal to be considered fair. Our team summarised the Court of Appeal’s decision here.
Takeaways:
- It may be useful to conduct general workforce-level consultation before small-scale redundancy exercises, but it is not a legal requirement.
- It is recommended that employees are allowed to express their views in individual consultations regarding any issue that may affect the risk or consequences of their dismissal.
- When consultation takes place, employees must be able to realistically influence the decision and outcome.