Employment update

Although there has been a substantial reduction in cases being presented in the employment tribunal (ET), there has been no shortage of interesting employment cases reaching the appellant courts. One is spoilt for choice. The toughest decision for this update
was not what cases to report on but, what to leave out.

Following a successful appeal, there could be a dilemma whether the case is one that could rightly be disposed of by the appellate court, which would, presumably, save the parties incurring further legal expense or one to have remitted.

Two recent cases in the Court of Appeal dealt with whether the Employment Appeal Tribunal (EAT) had erred in failing to remit them to the ET.
In both cases, the reasons not to remit were fundamentally different.

First was Jafri v Lincoln College [2014] EWCA Civ 449, where, having found that the ET had made errors of fact, the EAT nonetheless upheld the ET’s finding that the claimant had not been unfairly dismissed. Second, in Burrell v Micheldever Tyres Services Ltd [2014] EWCA Civ 716, which applied Jafri, where, having allowed the employer’s appeal, the EAT, before whom the question of remitting had not been raised, determined an issue rather than remit the case to the ET. In both cases, the employees appealed to the Court of Appeal.

In Jafri, J was employed as a teacher at a prison. He was later excluded from the prison following an allegation that he had been physically and verbally abusive to a manager. Sometime later, the manager went on sick leave and never returned. Therefore, disciplinary proceedings into said allegations did not proceed.

However, J was prevented from returning to the prison and the employer’s attempt to place him elsewhere was unsuccessful. J complained of unfair dismissal but the ET concluded that he had been dismissed fairly for ‘some other substantial reason’. He appealed to the EAT. Despite accepting that the ET had made errors of fact, the EAT held that none of those errors vitiated the ET’s conclusion.

Right on merit

Dismissing J’s appeal, Laws LJ stated: “I must confess with great respect to some difficulty with the ‘plainly and unarguably right’ test elaborated in [Dobie v Burns [1984] IRLR 329]. It is not the task of the EAT to decide what result is ‘right’ on the merits. That decision is for the ET, the industrial jury. The EAT’s function is (and is only) to see that the ET’s decisions are lawfully made.

Duty to inform

Under regulation 13(4) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), a transferee is to give the transferor such information as would enable the latter to perform the duty imposed by regulation 13(2); being long before the transfer to enable the employer of any affected employees to consult the employees’ representatives of stipulated matters pertaining to the transfer.

In Allen and Ors v Morrisons Facilities Services
Ltd UKEAT/0298/13/DM, the EAT had to determine whether a claim can be brought against the transferee, by transferred employees, for failing
to comply with its obligation, under regulation 13(4), to provide information to the transferor
to enable the transferor to comply with its obligations under regulation 13(2)(d). The
EAT held that regulation 13(4) imposes no obligation on a transferee.

Regulation 13(2)(d) makes it clear that the information is to be given by the transferor to representatives of its affected employees “who will” become employees of the transferee after
the transfer by virtue of regulation 4.

Therefore, the obligation under regulation 13(4) has to be complied with by the transferee before the transfer. Any entitlement to be provided
with information under regulation 13(4) is
solely that of the transferor and not the transferee’s employees.

Making reasonable adjustments

Pursuant to section 20 of the Equality Act 2010
(EA 2010), an employer has a duty to make reasonable adjustments for disabled employees, but does that duty extend to disabled persons associated with employees? This question was considered by the Court of Appeal in Hainsworth (Appellant) v Ministry of Defence (Respondent)
and Equality and Human Rights Commission (Intervener) [2014].

H, a civilian teacher, worked for the Ministry
of Defence in Germany and was attached to
the armed forces. The requirement to work in Germany was a ‘provision, criterion or practice’ (PCP) pursuant to section 20(3) of the EA 2010.
H had a disabled daughter, who lived with her.

The MoD offered mainstream education for employees in Germany. However, it did not offer special education as that requested by H for her daughter. In consequence, H requested a transfer to the UK where such special schooling would be available but this was refused. She claimed the transfer would be a reasonable adjustment to
the PCP.

Referring to article 5 of directive 2000/78 (establishing a general framework for equal treatment in employment and occupation – reasonable accommodation for disabled
persons) and recitals 16, 17, 20 and 27, the
Court of Appeal held in dismissing the appeal
that the attention was on employers and employees/trainees.

In consequence, the duty on employers to make reasonable adjustments under section 20(3) of the EA 2010 did not extend to disabled persons associated with their employees.

Partners as ‘workers’

Finally, under section 230 of the Employment Rights Act 1996 (ERA 1996) the definition of a ‘worker’ is wider than that of an ‘employee.’ Among others, many solicitors’ firms are limited liability partnerships.

But can equity partners in LLPs be workers?
This question was considered by the Supreme Court in Clyde & Co LLP and Anr v Bates van Winkelhof [2014] UKSC 32.

In allowing the appeal, the court held that a solicitor who had become an equity partner in an LLP was a ‘worker’ pursuant to section 230(3)(b)
of the ERA 1996. The legal status of ‘worker’ was crucial to the solicitor in this case without which she would have been unable to benefit from the protection she sought as a “whistle-blower”
under section 43 to 43L of the ERA 1996. SJ

Ryan Clement is a barrister practising from Conference Chambers