8 minute read
In our first UK Employment Law update of 2023, our team highlight key takeaways from the Employment Appeal Tribunal's (the "EAT") determination in the Ellis v Bacon marital status discrimination case and explore the scope of the test for marital status discrimination as a result. We also examine the High Court's recent interim decision which provides interesting insight into the privacy of WhatsApp messages and a recent case on dismissal for disability. Next, we set out the new Draft Code of Practice on Dismissal and Re-engagement. Finally, we look ahead and map out potential employment-related legislative changes we may see in 2023.
Decision of the Employment Tribunal (“ET”):
Ms Bacon initially succeeded in her claim for unfair dismissal and direct discrimination on grounds of sex and marital status against Mr Ellis. Mr Ellis was found to have been complicit with Mr Bacon and to have distanced himself from Ms Bacon after the divorce, which ultimately led to her dismissal and removal as a director. Mr Ellis appealed this decision.
The EAT allowed the appeal and went against the earlier decision of the ET. The EAT applied and confirmed the approach in Hawkins, that the issue in this case was whether Mr Ellis treated the claimant unfavourably because she was married, not whether she was badly treated because she was married to a particular person.
Practitioners advising on issues of marital status discrimination must ensure that the focus stays narrow and only on whether the claimant was treated unfavourably because they were married.
The High Court's decision:
The strike-out application was thrown-out as it could not be reasonably contested that the Claimant had a reasonable expectation of privacy in the messages because: (i) the materials were obtained prior to proceedings starting; (ii) they were obviously of a private nature (only 40 out of 18,000 messages were used by the ET); and (iii) the employer did not offer a satisfactory reason why the messages being on a work laptop meant that there was not an expectation of privacy.
Although this is only an interim decision, it may help to highlight and outline employers' duties to return private material, as not doing so may result in greater scrutiny by the ET.
The EAT rejected Mr McAllister's claim in relation to this dismissal on the premise that HMRC could justify the unfavourable treatment as a proportionate means to achieve its aims. These aims included ensuring staff could show satisfactory attendance and that the sickness management regime was fair and transparent. The EAT did however adjust the CSCS payment to a much more modest reduction of 20%. This was decided on the basis that a 50% reduction was considered disproportionate.
This judgment can give some comfort to employers that requirements such as satisfactory attendance levels and the impact on team morale were considered legitimate aims that could contribute towards a lawful dismissal.
The Government has launched a 12-week consultation on the new draft statutory Code of Practice on Dismissal and Re-engagement (the “Code”), introduced to set out good industrial practice in respect of the existing use of ‘fire and rehire’ practices, to adopt changes to employees’ terms and conditions. The Code seeks to deter employers from using threats of dismissal during negotiations to put pressure on employees to accept new terms in light of the potentially serious consequences for employees. The Code sets out detailed steps that employers should take when seeking to make changes to contractual terms and where considering dismissing and re-engaging employees. It does not apply where an employee is dismissed because there is a genuine redundancy. Once finalised, the Code will be issued under S.203 of the Trade Union and Labour Relations (Consolidation) Act 1992 and the Government has stated the Code will be brought into force when Parliamentary time allows.
Key Code content:
The process of fire and rehire is sometimes used when harmonising terms and conditions following an acquisition or as part of a wider business re-organisation. The Code makes it clear that imposing changes should be seen as a last resort and is likely to slow the process by which employers can vary terms and conditions of employment and assist employees in resisting these. Further, the Code expects employers to continue to engage with employees about the changes after new terms have been agreed.
The Code does not impose any legal obligations and render an employer liable to proceedings but employment tribunals will be required to take it into account where an employer dismisses those who do not agree to contractual changes. Employment Tribunals have the power to increase compensation by up to 25% to reflect unreasonable non-compliance and also have the power to decrease compensation by up to 25% where it holds that the employee who has unreasonably failed to comply.
The following bills are currently progressing through Parliament with Government backing:
We also expect that the Supreme Court will release its judgment this year onChief Constable of The Police Service of Northern Ireland and another v Agnew and others. The hearing took place between 14-16 December 2022 and the judgment could affect how employers calculate holiday pay.
For further advice on any of the issues raised above, please contact a member of the London Employment team.
 Hawkins v Atex Group Ltd & Ors  UKEAT/0302/11/LA