Insights Worked Up, your monthly employment law lowdown – March 2023

Welcome to March’s edition of Worked Up! With many of us still donning our biggest jumpers and resisting the urge to dial up the thermostat, what better time to get cosy and take stock of the current employment law landscape.

In this month’s edition, we cover why taking a rigid approach to a flexible working request might not be the right strategy, discuss why well drafted employment and consultant contracts still matter in light of Uber BV v Aslam, consider the importance of planning ahead for foreseeable costs (including pensions) at the start of the redundancy process, and look at a case where a claimant acted so unreasonably that their claim was struck out in its entirety.

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Glover v Lacoste UK Ltd [2023] EAT 4

The Employment Appeal Tribunal (“EAT”) has overturned a tribunal’s decision that an employee did not suffer any detriment or disadvantage from a provision, criterion or practice (“PCP”) requiring a fully flexible work pattern because the employee did not end up actually being required to work under this pattern.

The Claimant, Ms Glover, was an assistant manager at a Lacoste store. While on maternity leave, Ms Glover made a flexible working request asking to work three days per week when she returned to work. This request was rejected. Ms Glover did not return to work immediately following her maternity leave, instead taking accrued annual leave before being placed on furlough. While on furlough, Ms Glover subsequently appealed the flexible working request rejection and was offered a part-time pattern of four days per week to be worked flexibly on any day, including weekends, on a six-month trial basis. After a presumably strongly worded letter from Ms Glover’s solicitor, Lacoste subsequently granted Ms Glover’s original request of a three-day week. Ms Glover then came off furlough and returned to work two days later with this work pattern.

Ms Glover later filed a claim for indirect discrimination, citing detriment and disadvantage resulting from Lacoste’s PCP of fully flexible working. The tribunal initially accepted that if the PCP had been applied it wouldn’t have been reasonable since it would have put women at a disadvantage due to difficulties in arranging childcare. However, the tribunal ultimately held that Ms Glover could not have been disadvantaged as she had not actually had to work the fully flexible work pattern and stated it was bound by the case of Little v Richmond Pharmacology Ltd.

The EAT allowed the appeal and overturned the tribunal’s decision, noting that while Little had similar facts to the present case, it had been found the PCP didn’t apply because the employee didn’t return to work and her flexible working request was said to be open to appeal. The decision as to whether Ms Glover had been subject to disadvantage or detriment was remitted to a new tribunal.

This decision acts as a useful reminder that employers should carefully consider their employee’s flexible working requests and exercise caution when a decision may amount to a PCP that may disadvantage the employee. Reversing a final decision at a later date will not remedy a potential claim from an employee, as the PCP will be deemed to apply from the point that the decision is made rather than when the PCP is applied.

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Ter-Berg v Simply Smile Manor House Ltd and others [2023] EAT 2

The EAT’s judgment regarding the employment status of a dentist has helped clarify the relevance of written agreements in determining status in light of the Supreme Court’s decision in Uber BV v Aslam.

The claimant, Dr Ter-Berg, was a dentist who practiced for the first respondent company, Simply Smile Manor House Limited, as a self-employed contractor under a standard British Dental Association agreement. Dr Ter-Berg alleged that he had been unfairly dismissed for making a protected disclosure and suggested that, while he had initially been a contractor, his status had changed to that of an employee over time. The tribunal rejected these allegations at first instance, using the agreement between the parties as a starting point to establish the claimant’s status.

On appeal, the claimant contended that the tribunal erred by considering the agreement in this manner, referring to the Supreme Court’s decision in Uber BV which had held that tribunals may overlook terms in written agreements which do not reflect the genuine position of the parties. However, the EAT in its decision noted that the case of Uber BV did not mean that written agreements should never be taken into account when establishing the true intention of parties in disputes over employment status. Rather, the EAT held that the written agreement formed part of the smorgasbord of evidence that should be considered when determining the parties’ true intentions on how the employment relationship should operate. The EAT further held that the tribunal did not err in using the agreement as a jumping off point when determining the claimant’s status, as the tribunal considered other factors and did not treat the written terms as the start and end of its inquiry.

This case re-iterates the importance of ensuring that employment and contractor agreements are carefully drafted to accurately reflect the working relationship between parties. While written agreements do not in themselves determine an individual’s employment status, they are often a first port of call for tribunals when considering claims concerning employment status and should therefore be drafted with care.

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Cook v Gentoo Group Ltd [2023] EAT 12

In this case, the claimant, Mr Cook, was dismissed due to redundancy after being unable to attend his second consultation meeting due to ill health. Mr Cook brought a claim for unfair dismissal and direct age discrimination against his employer, Gentoo Group Limited, alleging that the full redundancy process had been curtailed so that he would be dismissed before reaching 55 years of age. This meant his employer wouldn’t have to make an £80,000 payment into his Local Government Pension Scheme.

At first instance, the tribunal held that the reduced redundancy process did not constitute direct age discrimination, stating that the actual comparators Mr Cook identified were inappropriate and that his employer’s change to the process was a proportionate means of achieving a legitimate aim. The tribunal did not, however, consider hypothetical comparators or identify the legitimate aim.

The EAT asked the employment judge of the first instance tribunal what the legitimate aim was. The judge clarified that it related to saving costs relating to the additional pension payment as well as noting the relevant regulator’s disapproval of windfall pension enhancements and suggested that the approach was proportionate. The EAT was not persuaded that this was a part of its justification and noted that the tribunal did not consider the fact that the respondent had departed from its usual policies in this case and that it did not consider the discriminatory impact upon the claimant.

The EAT held that the original tribunal therefore hadn’t properly applied the relevant legal principles and remitted the case to a new tribunal for reconsideration.

This case reiterates the importance of considering potential pension scheme implications early on in the redundancy planning process – while the respondent in this case may have saved itself money in the short term by avoiding making payment to Mr Cook’s pension it is likely that the cost of defending these proceedings may exceed this, and that’s before taking into account any reputational harm that could arise. It also shows that cost savings will rarely provide a legitimate justification for discrimination.

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Mr T Smith v Tesco Stores Ltd: [2023] EAT 11

The EAT in this case found that the tribunal had correctly struck out the claimant’s claim due to their unreasonable conduct during proceedings.

Following an altercation with their store manager, the claimant, a Customer Assistant, brought several claims against their employer, including claims for unfair dismissal and race and disability discrimination. Despite five preliminary hearings and attempts to clarify the issues, the claimant continued to add new claims and would not cooperate with settling the list of issues.

The tribunal ultimately decided to strike out the claim. In making this determination, the tribunal considered that the claimant had acted in a manner that was scandalous, unreasonable or vexatious, concluding that a fair trial was no longer possible and decided that a strike out of the entire claim was proportionate.

In its reasoning, the EAT made it clear that this judgment was not a green light for strike out of difficult claims. The EAT confirmed that “the courts of this country are open to the difficult” and that “strike out is a last resort, not a shortcut”. Therefore, while this case is helpful in confirming that employment tribunals are willing to strike out claims by overly difficult claimants, the threshold for strike out is high and strikeout remains the exception rather than the norm.

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