Latest from HRi
Employment Tribunal Cases of 2024 in Review
As 2024 draws to a close and we look ahead to 2025, we’ve compiled a selection of key employment tribunal cases from the past year. These cases shed light on critical employment issues and offer valuable insights for addressing workplace challenges in the year ahead.
Toxic Workplace Culture: Rob Ogden vs Booker
In the recent Rob Ogden vs Booker employment tribunal case, a delivery driver was dismissed for gross misconduct after using offensive language toward a colleague. The altercation, which involved swearing and derogatory remarks, took place during a conversation about weight loss and led to the colleague filing a grievance. Booker Ltd, the company involved, initially upheld Ogden’s dismissal under its dignity at work policy.
However, the employment tribunal found that Ogden’s dismissal was unfair. The judgment highlighted a broader issue with the company’s workplace culture, describing it as “toxic” and full of unchecked “banter” and inappropriate behaviour. The tribunal noted that managers failed to enforce dignity standards, and there were significant flaws in the investigation and disciplinary procedures. Importantly, the tribunal found that Ogden’s conduct was part of a wider issue that had been overlooked, meaning a written warning would have been a more appropriate response.
Key Learning
This employment tribunal case highlights the critical need for employers to create a workplace culture that prioritises respect and professionalism. Organisations must ensure policies, such as those promoting dignity at work, are not only in place but consistently enforced. Equally important is equipping managers with the skills to address misconduct appropriately, conducting thorough investigations, and applying disciplinary measures fairly. By addressing cultural issues proactively, businesses can reduce the risk of disputes escalating to tribunal claims while promoting a healthier work environment.
No to Fire and Rehire: Tesco Stores Ltd v USDAW (2024)
In the case of Tesco Stores Ltd v USDAW (2024), the Supreme Court ruled in favour of USDAW (Union of Shop, Distributive and Allied Workers), preventing Tesco from dismissing workers as part of a “fire and rehire” strategy designed to remove employees’ rights to retained pay. This case stems from a dispute over Tesco employees who had been promised retained pay as part of their contracts in exchange for agreeing to stay with the business and support its operations during a challenging period.
Tesco sought to terminate these contracts to strip employees of this benefit, arguing that it had served its purpose. However, the Supreme Court found that this right to retained pay was a permanent contractual entitlement, and Tesco could not remove it through dismissal and re-engagement without breaching the agreement. The Court reinstated an injunction to prevent Tesco from dismissing the employees, emphasizing that their contract terms could not be altered simply to remove this benefit.
Key Learnings
This case highlights the importance of clarity and precision in employment contracts, particularly regarding entitlements such as retained pay. Employers must be cautious when drafting employment terms. They need to ensure that any promises made in communications or contracts are well-defined and can withstand legal scrutiny. The ability of employers to ‘fire and rehire’ employees has been the subject of heavy scrutiny in recent years. A new Code of Practice, setting out the process for employers to follow when considering the possibility of dismissing and re-engaging staff on new contractual terms, took effect on 18 July 2024. This is further strengthened by introducing new limits in the new Employments Rights Bill where employers who don’t comply could face a 25% increase in compensation for related claims like unfair dismissal.
Whistleblowing Claim: Dr Nigel MacLennan v British Psychological Society (2024)
The case of Dr. Nigel MacLennan v The British Psychological Society (2024) involved a whistleblowing claim brought by Dr. MacLennan, a trustee and President-Elect of the British Psychological Society (BPS). In May 2021, he was expelled from his membership. Dr. MacLennan believed the expulsion was retaliatory for his actions in reporting the concerns. The case highlighted the issue of whether unpaid charity trustees should be granted the same whistleblowing protections as paid employees.
Initially, the Employment Tribunal dismissed Dr. MacLennan’s claim. It ruled that trustees, due to their unpaid status, did not qualify for whistleblowing protection under UK law. In October 2024, the Employment Appeal Tribunal (EAT) overturned the initial ruling. It argued that trustees, because of the significant responsibilities they carry, should be considered to have ‘occupational status’. This decision was a landmark one, potentially extending legal protections to over a million trustees in the UK. The ruling emphasised that trustees should not be subject to detriment for raising legitimate concerns. This includes, particularly in areas like fraud or mismanagement.
Key Learning
This case reinforces the importance of ensuring that all individuals with significant governance responsibilities, including unpaid trustees, are adequately protected when reporting wrongdoing. Charities should review their whistleblowing policies and practices to ensure trustees can report concerns without fear of retaliation. The judgment also serves as a reminder to employers and charity organisations to consider the full scope of an individual’s role, regardless of their remuneration, when determining access to legal protections.
IR35: Professional Game Match Officials Ltd v HMRC case (2024)
The Professional Game Match Officials Ltd v HMRC case (2024) involved an appeal regarding the employment status of referees working in the professional football league. The key issue was whether referees, engaged through individual match day contracts, should be classified as employees for tax purposes under the off-payroll working rules (IR35).
The Supreme Court ruled that the referees met the criteria for mutuality of obligation. Once a referee accepted a match, both parties had ongoing obligations. Despite both the referees and PGMOL being able to cancel matches without penalty, the Court determined that mutuality of obligation still applied. The Court also clarified that control doesn’t require direct day-to-day oversight. Instead, control can exist through a framework, such as coaching systems and conduct codes, which allowed PGMOL to influence the referees’ performance during matches.
Key Learnings:
This case highlights the complexity of determining employment status in situations where workers have high autonomy, yet operate within a framework of contractual obligations and rules. This serves as a reminder that mutuality of obligation can exist in short-term contracts even if the contract is not continuous, and that control can be seen in overarching frameworks, not just direct management. Employers must carefully assess the status of their contingent workforce, especially when engaging off-payroll workers or contractors.
Disability Discrimination: North Yorkshire County Council v Robinson (2024)
The North Yorkshire County Council v Robinson case (2024) is an employment tribunal decision that highlights important issues surrounding disability discrimination and the duty to make reasonable adjustments under the Equality Act 2010.
In this case, the claimant, Mr. Robinson, brought a claim against North Yorkshire County Council, alleging that they had failed to make reasonable adjustments for his disability, which affected his ability to perform his job. The tribunal found that the employer did not adequately consider his needs or make the necessary adjustments to support him. This case highlights the importance of employers proactively engaging with employees about their health and disability needs. Adjustments are not just offered but properly implemented to enable employees to continue in their roles.
Key Learnings
- Reasonable adjustments: Employers must take active steps to accommodate employees with disabilities and make adjustments where needed to enable them to perform their jobs effectively. The case reinforces the legal obligation to explore all possible accommodations.
- Engagement with employees: Employers should regularly engage with employees, especially when it comes to managing health and disability-related needs. An absence of communication can be seen as a failure to meet statutory obligations under the Equality Act 2010.
This case serves as a reminder for employers to prioritise inclusivity and ensure that all employees are given fair opportunities to succeed, regardless of disability.