Employment Law Review - August 2020

Welcome to our August 2020 Employment Law Review

• Increase in Employment Tribunal settlement amounts and awards
• Professional cyclist not classed as an employee or worker
• Is it within the range of reasonable responses to dismiss someone relying on evidence from an anonymous witness?
• The question of causation when considering discrimination arising from disability
• Coronavirus - updates

Increase in Employment Tribunal settlement amounts and awards

The Department for Business, Energy and Industrial Strategy recently published the seventh Survey of Employment Tribunal Applications, which aims to capture the experiences of those who use the employment tribunal system and the performance of the claims process. The most recent survey was conducted in 2018 based on data between October 2016 and October 2017. There is an executive summary on pages 6-15 of the report and there was a separate document produced which provides a summary of key changes between the 2018 survey and the prior 2013 summary. Key comparison findings:

• Increase in the proportion of Claimants and Employers having representation at tribunal hearings: 33% to 41% and 67% to 77% respectively.
• Median settlement amount across all settled cases doubled from £2,500 to £5,000
• Median amount awarded by tribunals increased from £3,000 to £5,000

The comparison document also highlights that the sample profiles for each survey were different, reflecting the introduction of mandatory ACAS early conciliation and changes in fees between 2013 and 2017.Summary of changes

Professional cyclist not classed as an employee or worker

The case of Varnish v British Cycling Federation (t/a British Cycling) recently hit the headlines again with the Employment Appeal Tribunal upholding the decision made by the Employment Tribunal that a professional cyclist is neither an employee nor a worker.­ Facts Ms Varnish is a professional cyclist who was selected to be part of a training program run by the non-profit organisation, the British Cycling Foundation (British Cycling). Ms Varnish entered into numerous athlete agreements with British Cycling as a part of these programs. The most recent agreement laid out that British Cycling would provide Varnish with a performance plan and a package of services and benefits to support her and she would follow the plan, enter competitions and maintain her health, Ms Varnish would also require consent from British Cycling to engage in any personal commercial work. Ms Varnish would receive no money from British Cycling but was able to apply for a sport grant. British Cycling also expressly stated that the agreement was not an employment contract. In 2016 Ms Varnish's agreement with British Cycling was terminated due to performance issues. Tribunal ClaimMs Varnish brought claims for discrimination and unfair dismissal to the Employment Tribunal and British Cycling disputed the claims on the grounds that they believed that Ms Varnish did not have either worker or employee status. The tribunal found firstly that Ms Varnish was not an employee under s230(1) of the Employment Rights Act 1996 (ERA 1996) after consideration of these points:

• Mutuality of obligation: there was deemed no mutuality of obligation as British Cycling did not provide her with work and the benefits provided to her were not deemed remuneration.
• Whether the agreement required personal performance: as British Cycling were not providing work, Ms Varnish was not deemed to be personally performing work for them. Instead she was personally performing a commitment to train. This was not consistent with a contract of employment.
• There were other factors, including Ms Varnish's tax position, which were not consistent with employment.

Without mutuality of obligation or personal performance, Ms Varnish's claim of being an employee was defeated. Under similar facts as applied above the tribunal also concluded that Ms Varnish was not a limb (b) worker under s230(3) of the ERA 1996.Appeal to the EATMs Varnish appealed to the Employment Appeal Tribunal (EAT) on three grounds:

• Mutuality of obligation: as they failed to appreciate the benefits as remuneration or her training as work, in line with professional footballers.
• That she was a worker
• That some findings of facts were irrational

The EAT dismissed the first two grounds, finding that the tribunal had not erred in relation to any of their conclusions. The EAT did sympathise with Ms Varnish on the final point but deemed this issue to not be substantial enough to undermine the overall conclusion.

What does this mean 

The outcome of this case does not really add anything new to the law regarding employee and worker status, although it is a useful review by the EAT of the authorities relating to mutuality of obligations. The EAT emphasised that the conclusions were based entirely on the facts of the case, and that the opposite outcome was possible on different facts. Employment appeal tribunal decisions

 Is it within the range of reasonable responses to dismiss someone relying on evidence from an anonymous witness?

 In the context  of the case in Tai Tarian Ltd v Christie the EAT held that it was, as the tribunal's findings regarding fairness were not sound, due to their strongly adverse view on the statement given by the anonymous witness.

Facts 

Mr Christie had worked for Tai Tarian Ltd as a carpenter for 14 years without any disciplinary incidents. A tenant complained that Mr Christie had made homophobic comments resulting in the dismissal of Mr Christie for gross misconduct. The tenant was interviewed twice by two managers but not by the decision-making managers. The tenant asked to remain anonymous. Tribunal Claim Mr Christie brought an unfair dismissal claim which was upheld by the tribunal because they deemed it was not within the band of reasonable responses to dismiss Mr Christie. The reasons for this conclusion were that there had not been a fair disciplinary hearing, the manager had accepted the tenant's word without interviewing the tenant himself and had not considered reasons why the tenant's account might have been embellished. Further, considering highly positive character references for Mr Christie, the tribunal found it unlikely that Mr Christie had made the alleged comment. The tribunal found it unreasonable for the manager to have accepted the tenant's word over Mr Christie's.

Appeal to the EAT

Tai Tarian appealed the tribunal's decision and the EAT allowed this appeal. The EAT's upheld the appeal as they considered that the tribunal had substituted their own view for that of the employer, as opposed to reaching a conclusion on whether the employer's decision was within a range of reasonable responses. Considering why the tribunal found that it was unreasonable for Tai Tarian to accept the tenant's word as truthful, the EAT followed the guidance of Linfood Cash and Carry v Thomson which states that there needs to be logical and substantial grounds to come to that conclusion. The tenant had been interviewed twice, not invited to the disciplinary hearing and unable to provide evidence at the appeal stage for personal reasons.  This was not a clear enough reason to not rely on their statement. The case was sent back to an entirely fresh Tribunal rehearing.

What does this mean?

This case highlights that it is possible in disciplinary proceedings to rely on the evidence of a witness who does not want, for good reasons, to be identified. However, the guidance in Linfood Cash and Carry v Thomson should be followed with care in the case of anonymous witnesses. Employment appeal tribunal decisions

The question of causation when considering discrimination arising from disability

When a tribunal is considering s15 of the Equality Act (EA) in the case of discrimination arising from a disability, the key question should be whether the treatment was 'because of' disability rather than 'but for' disability. This was reinforced in the recent Court of Appeal ruling of Robinson v DWP where they dismissed Ms Robinson's appeal due to the incorrect approach to the issue of causation.

Facts

Ms Robinson was an employee at DWP and her role required her to use specific computer software. She became unwell with a hemiplegic migraine which led to blurred vision in her left eye making it difficult for her to carry out her role. DWP tried to resolve the issues to enable Ms Robinson to work. However, they had little success and the situation led to Ms Robinson suffering from stress and taking sickness absences. Ms Robinson lodged a grievance about the slow response to help adapt her workplace around her disability which was upheld. She was moved to a paper-based role but it was hoped that this would be on a temporary basis. Ms Robinson lodged a second grievance requesting an apology and compensation which was only in part successful as she received no compensation.

Tribunal Claim 

Ms Robinson brought two claims to the tribunal, discrimination arising from disability under s15 EA and a failure to make reasonable adjustments under s20 EA. The tribunal dismissed Ms Robinson's s20 claim as it held that DWP had made reasonable adjustments. However, the tribunal upheld her s15 claim of discrimination arising from a disability due to DWP's slow and ineffective approach to finding solutions to Ms Robinson's problems.

Appeal to the EAT

DWP appealed this decision to the EAT which overturned the tribunal's finding of discrimination arising from disability stating that the tribunal had used an incorrect causation approach to the s15 claim and that Ms Robinson had not been discriminated against. The EAT stated that the tribunal was bound by their finding of the facts to dismiss the claim and they also declined to remit the case to the tribunal.

Appeal to the CoAMs

Robinson brought an appeal of the EAT's decision to the Court of Appeal (CoA). The CoA held in line with the EAT that the facts found by the tribunal did not support a claim of discrimination arising from disability. Furthermore, it was not enough for Ms Robinson to show that 'but for' her disability she would not have been treated unfavourably. Instead the treatment needed to be 'because of' the disability, making the motive of any decision taker an important factor.

What does this mean? 

The CoA said that Mrs Robinson had not been treated well by the DWP and that her sense of grievance was understandable. However that was not sufficient and it had not been shown that any treatment was because of something arising in consequence of her disability. 

Coronavirus - updates

As previous bulletins have highlighted, our 'Coronavirus Hub' continues to be updated as the government continues to bring out new guidance. It covers changes for workplaces, the furlough scheme and many other areas for both employers and employees. One particular link which may be useful is our FAQ for employers which answers common questions we have been receiving.