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5 December 2023

Tribunal and employment cases in review – 2023

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As we come to a close for 2023 and begin 2024, we have pulled together a small selection of tribunal and employment cases from 2023. Each highlights key employment issues.

Meaker vs Cyxtera Technology UK Ltd (CTUK)

This employment tribunal case highlights the significance of clear communication when handling terminations. Mr Meaker, a manual worker at Cyxtera Technology UK Ltd (CTUK), faced termination due to back injuries. A letter sent by CTUK on February 5, 2020, confirmed the termination without prejudice, offering an ex-gratia payment conditional on Mr Meaker signing a settlement agreement. Mr Meaker did not sign a settlement agreement, and a payment in lieu of notice was made on February 14, 2020. Mr Meaker presented a claim for unfair dismissal. The tribunal initially ruled his unfair dismissal claim out of time, stating termination on February 7, which Mr Meaker appealed. The EAT upheld this decision, emphasising the need for clarity in termination communications. The case highlights the importance of explicit language in termination conditions. It is also good practice to keep own and without prejudice communications separately to avoid confusion. This employment tribunal case provides an important reminder about time limits in unfair dismissal and breach of contract claims. The claimant must submit the claim within three months less a day of the alleged termination.


Morrisons fined over the death of an employee

This case demonstrates the importance of the duty of care of employers to its employees. Matthew Gunn, an employee at Morrisons with epilepsy, suffered a fatal fall down stairs in the supermarket, leading to his death. The incident occurred despite warnings from the mother of Mr Gunn about the risks due to his seizures. Morrisons, aware of his condition, was charged with health and safety violations, including failure to ensure employee welfare and conduct suitable risk assessments. The jury found Morrisons guilty on all charges, resulting in a £3.5 million fine. The case highlights the duty of care of the employer, emphasising the importance of health and safety risk assessments and reasonable adjustments, particularly for employees with vulnerabilities. This case highlights the critical role proactive measures play in ensuring the safety and well-being of employees. It emphasises the need for employers to take decisive actions to prevent foreseeable risks and promote a secure working environment.


IBM inactive employee claimed he was the victim of disability discrimination

Ian Clifford, an employee transferred to IBM in 2001, initiated a grievance in 2012 during his extended sick leave, seeking salary adjustments and holiday pay dating back to 2008. Claiming disability discrimination, he requested a transfer to the IBM Disability Plan. Mr Clifford moved to the Disability Plan in April 2013, and a compromise agreement was signed shortly after. In February 2022, he claimed disability discrimination due to the absence of salary increases and holiday entitlement. The judge ruled against Mr Clifford, stating that the absence of a salary increase is not discriminatory as only disabled individuals benefit from the plan, which already offers substantial advantages. The tribunal dismissed the remaining claims due to a lack of reasonable prospects of success.


Mr A Geasley-Adams v Royal Mail Group Ltd – Discrimination: perception of harassment

Mr Greasley-Adams, a Royal Mail driver with Asperger’s Syndrome, faced harassment allegations from colleagues, leading to a grievance. Upon discovering disparaging remarks during the investigation, he filed harassment complaints. The Employment Tribunal (ET) dismissed his claims, stating that awareness of the conduct was essential. Mr Greasley-Adams appealed, arguing that harassment could occur before knowledge. The Employment Appeal Tribunal (EAT) upheld the awareness requirement, emphasising the subjective perception of the claimant. It ruled the tribunal was reasonable in considering context when assessing the reasonableness of perceived harassment. The tribunal case is a good reminder of the test for establishing if harassment has occurred to an employee. It depends on the subjective assessment of whether a person (claimant) ‘perceives’ themselves to have experienced harassment alongside an objective evaluation of whether it was reasonable to view the conduct as having that effect


Lynskey v Direct Line Insurance Services Ltd

Direct Line has been ordered to pay approximately £65,000 to a former employee, Maxine Lynskey, who resigned in May 2022. While her constructive unfair dismissal, sex discrimination, and age discrimination claims were not upheld, her complaints of a failure to make reasonable adjustments and a Section 15 complaint (treated unfavourably due to disability) were successful. Lynskey, who suffered from menopausal symptoms impacting her performance, was signed off due to work-related stress and was offered a new role, resulting in financial loss. The tribunal found the company could have made adjustments, criticising the transfer as under false pretences. The ruling reflects the increasing recognition of menopause-related disabilities and emphasises the importance of fair and supportive workplaces.


The Significance of Formative Stage Workforce Involvement

Haycocks v ADP RPO – ADP RPO UK, a subsidiary of a US company, faced economic challenges in 2020, leading to a redundancy process for the team responsible for recruiting employees for Goldman Sachs. The scoring process, based on subjective criteria from the US parent company, occurred in June 2020, and Mr. Haycocks ranked last. The employment tribunal ruled that the scoring was in good faith. A redundancy timetable was set on June 19, with Mr Haycocks notified of the requirement on June 30. The final meeting on July 14 resulted in his dismissal without knowledge of scores or comparative data.

The original tribunal acknowledged the appeal process was conducted “conscientiously” but noted the lack of consultation at a crucial stage. Mr Horan argued at the EAT that early consultation could have impacted outcomes, possibly avoiding redundancies. The EAT concluded the absence of formative stage consultation made the dismissal unfair.

The EAT emphasised the variation in employment law practices between nations and the impact of using a subjective selection system from the US. The decision highlighted that international methods may not align with UK practices. The EAT ruled the absence of consultation during the formative stage rendered the dismissal unfair. The appeal could only address missing aspects in the individual consultation process, not repair the gap in the formative stage.