Employment Law Update – January 2023

Welcome to our latest employment law update bringing you up to speed with this month’s key cases and developments.

In this month’s employment law update, we report on cases involving an employee refusing to attend work during the lockdown, the admissibility of documents at a remedies hearing and whether a COT3 Agreement settled a claim lodged after the COT3 was entered into.  We also report on recently released statistics on the levels of compensation awarded in the Employment Tribunal.

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Employee dismissed for failing to attend work due to COVID-19 concerns was not unfairly dismissed

The pandemic saw instances of employees being dismissed for refusing to attend work due to concerns about catching Covid-19.  A number of these employees claimed to have been automatically unfairly dismissed because they had been dismissed either:

• in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, (s100((1)(d) Employment Rights Act 1996); or
• in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger (s100((1)(d) Employment Rights Act 1996).

We have now seen the first decision at Court of Appeal level on such a case: Rodgers v Leeds Laser Cutting Ltd.Shortly after the announcement of this first lockdown in March 2020, Mr Rodgers told his employer he would not attend work because he was worried about catching Covid-19 and infecting his vulnerable children.  After an initial period covered by a self-isolation certificate, he made no further contact with his employer and was dismissed.

Mr Rodgers had less than two years of continuous service and raised his claim of automatic unfair dismissal under the above grounds (as such grounds for automatic unfair dismissal do not require any period of continuous service).

The Court of Appeal upheld the decision of the Tribunal and the Employment Appeal Tribunal that Mr Rodgers had not been automatically unfairly dismissed and points of interest in its judgement are:

• Each case needs to be decided upon its own facts and there was nothing in principle to say that an employee’s fear of catching an infectious disease could not, in the relevant circumstances, be a “serious and imminent danger”
• The circumstances of danger must arise at the workplace (but need not be exclusive to the workplace). In this particular case, the Tribunal had found that Mr Rodgers had not felt seriously at risk at work, and his concerns were of a more general nature about the pandemic
• While not a determinative issue in the case, the Court commented that the danger must arise at the workplace and that, as currently drafted, the provisions in the Employment Rights Act 1996 did not cover concerns about dangers arising on journeys to and from the workplace

This decision does not necessarily mean that it is impossible to succeed with a claim for unfair dismissal from an employee refusing to attend the workplace due to concerns about Covid-19.  Each case must be considered on its merits.  

Settlement of victimisation claims

Employees can validly waive their statutory employment rights only under a Settlement Agreement or an ACAS COT3 agreement.

Mr Arvunescu made a claim of race discrimination against his employer (Quick Release), which was settled on 1 March 2018.  The COT3 agreement stated that it settled all claims that he“has or may have against [Quick Release] or against any employee, agent or officer of [Quick Release] arising directly or indirectly out of or in connection with the claimant’s employment with [Quick Release], its termination or otherwise. This paragraph applies to a claim even though the claimant may be unaware at the date of this agreement of the circumstances which might give rise to it or the legal basis for such a claim”

In May 2018, Mr Arvunescu brought a new claim against his employer, alleging that when he applied for employment with an associated company in Germany, Quick Release was responsible for him being rejected for the post in February 2018 because of the race discrimination claim he had made.

His employer defended the claim on the basis that such a claim had been settled by the COT3 agreement entered into on 1 March 2018.

The Tribunal and Employment Appeal Tribunal dismissed his claim and Mr Arvunescu appealed to the Court of Appeal.

The Court of Appeal dismissed his appeal (Arvunescu v Quick Release (Automotive) Ltd). 

It considered that his claim that his employer had knowingly helped another company to victimise him was a claim that had been settled by the COT3.  It was a claim that arose “indirectly in connection with his employment” by Quick Release and was therefore covered.

The Judgement of the Court of Appeal is a decision on the interpretation of the wording of the particular COT3 agreement.  It is, however, a useful reminder of the importance of the precise wording of any settlement agreement. Had it been worded slightly differently, Mr Arvunescu may have been able to proceed with his claim.  

Employment Tribunal Statistics

The Employment Tribunal has released its statistics about compensation awarded during the 2021/22 period (Employment_and_EAT_2021-22.ods (live.com)). Whilst we occasionally see some high headline grabbing figures in the media, the statistics are a useful reminder of the average picture:

• The average awards for unfair dismissal were £7,650 (median) and £13, 541 (mean). Whilst these were an increase on awards made in the previous year, there have been other years with higher average awards, so there is no particular discernible trend towards higher awards.
• The average awards for sex, race and disability discrimination are within similar ranges:

	Median (£)	Mean (£)
Sex discrimination	17 959	24 630
Race discrimination	14 120	27 607
Disability discrimination	14 000	26 172

• The averages are based on Tribunal awards and do not take into account cases that settle.

 

Admissibility of remedies evidence

Mr Jowett succeeded in bringing a claim for disability discrimination against the Health and Safety Executive (HSE) in relation to the withdrawal of a job offer in February 2019.  He claimed five years future losses (c £250,000 plus pension losses) and in relation to a remedies hearing to determine how much compensation should be awarded, the HSE disclosed documents relating to Mr Jowett’s previous period of employment with the HSE from 2008 to 2012. The HSE considered that these documents were relevant to the issue of how long Mr Jowett was likely to have stayed with HSE had he been appointed to the role in February 2019 (their argument being that he would not have remained with the HSE for the five years he was claiming).

Mr Jowett complained to the Information Commissioner’s Office (ICO) about the retention of these documents by HSE for such a long period.  The ICO advised that whilst there were no specific timeframes for document retention set out in the GDPR, it was likely that the HSE had breached data protection rules by retaining this information for so long.

The Employment Tribunal made a decision that it would not permit the HSE to use the documents at the remedy hearing as the Tribunal felt they would not assist the Tribunal to determine how long Mr Jowett would have remained in the role. The HSE appealed.

The EAT upheld the appeal (Health & Safety Executive v Jowett ) and considered that the documents were admissible, finding:

• The Tribunal had failed to apply established guidance from case-law, including the guidance that in considering future loses “a degree of uncertainty is an inevitable feature…the mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence”
• It should be rare for evidence to be discarded at a preliminary hearing and, save if there is particular reason, it is better for the Tribunal at the full hearing to consider the issue. The Tribunal had failed to identify why in this case a decision on the admissibility of the evidence was necessary at a preliminary stage
• The fact that the retention of the documents may have been in breach of data protection obligations did not prevent them being admissible in Tribunal proceedings. In this case, the documents were potentially relevant, and any breach of data protection obligations was for a limited time after the implementation of the GDPR, so the balance of interests was in favour of admissibility

The EAT’s balancing of the arguments took into account the amount claimed, commenting:“The claimant suggests that it is unfair to permit the respondent to bring up his earlier period of employment (he said it felt like "victim blaming"), but I am afraid that this is the consequence of him seeking compensation for 5 years loss of future earnings in circumstances where he did not start working in the role in 2019. Although a finding of discrimination has been made, the respondent is perfectly entitled to challenge the proposition that underpins this part of his damages claim, rather than simply agreeing to pay him the substantial sum sought”

Whilst it does not establish any new law, the EAT’s judgement is a useful reminder of the principles that a Tribunal should follow in making a determination on the admissibility of documentation and also a useful reminder that the issue of remedies can often be as much of a battleground as the issue of liability.