Read on for our monthly digest for employers on upcoming employment law changes and key, recent employment tribunal cases.
Flexible working
Miss Wilson v Financial Conduct Authority
Miss Wilson had worked as a manager at the FCA since 2015. She had been working remotely from home on a full time basis since the beginning of the pandemic in 2020 for health reasons.
When pandemic restrictions were eased, the FCA moved to a hybrid working policy, with staff working two days a week in the office.
On 9 December 2022, Miss Wilson submitted a statutory flexible working request to change her terms of employment and enable her to work entirely remotely, without having to attend an office location. She argued that she had continued to be a high performer and that attending the office was not necessary to the success of her role.
Miss Wilson received the FCA’s decision in March 2023. This was 21 days after the statutory deadline. The FCA stated this was due to an internal misunderstanding about who was responsible for processing the request.
Miss Wilson’s request was denied. In its response, the FCA explained that its decision was on the basis that if Miss Wilson worked entirely from home, it would have a detrimental impact on quality and performance. The FCA emphasised the importance of face-to-face interactions for training, supervision, department needs, and developing a team spirit, especially considering Miss Wilson’s seniority and that she oversaw a number of people.
Miss Wilson then brought a tribunal claim against the FCA.
The tribunal ruled that the FCA had exceeded the statutory decision period time limit and ordered it to pay Miss Wilson one week’s wages as compensation.
As to the central question of the impact of full time remote working on Miss Wilson’s performance, the claimant asserted that the FCA’s decision was “based on incorrect facts”. Miss Wilson referenced that she had been performing exceptionally well during the period where she had been working entirely remotely.
The tribunal determined that the FCA’s conclusion was founded on correct facts. The judge paid special attention to the fact that the decision maker had honestly evaluated the merits of the application and provided specific reasons why it could have a negative impact, while weighing those issues against the claimant’s ‘outstanding’ performance record while working remotely.
The tribunal allowed the refusal by the FCA of the initial request and the subsequent appeal.
Employer takeaways
This decision attracted notable media attention, but it is important to emphasise that it does not in itself pave the way for employers to impose mandatory, blanket ‘return to office’ policies. Rather, this case was limited to the consideration of whether the FCA’s basis for dismissing a flexible working request was founded on ‘incorrect facts’ – it did not address other legal concerns, such as discrimination, which may arise in relation to hybrid and flexible working arrangements.
The key takeaway remains that each case of this sort will depend on its specific facts. As such, we are likely to see flexible and hybrid working matters become an increasing source of workplace disputes and tribunal claims, as the rules of the post-pandemic workplace continue to be carved out.
Worker status of job applicants
Sullivan v Isle of Wight Council
Ms Sullivan was unsuccessful in applying for a job with Isle of Wight Council.
She then brought an employment tribunal claim against the Council for detriments resulting from whistleblowing, relying on provisions of the European Convention on Human Rights (ECHR). Despite current legal protections only extending to actual workers or former workers, she cited Article 10 ECHR in a claim for freedom of expression, and asserted that under Article 14 ECHR, she was protected by way of ‘other status’ as a ‘candidate’, affording her protection from discrimination, similar to judicial office holders per Gilham v MoJ.
The claim was dismissed on the grounds that the tribunal held that it had no relevant jurisdiction. Ms Sullivan appealed.
The EAT upheld the initial finding, applying the four questions set out in Gilham to the appeal grounds. Ms Sullivan was an external candidate and had not operated within the organisation. As such, she did not qualify as an internal whistleblowing candidate.
Similarly, her status did not qualify for the specific protections under s49B Employment Rights Act afforded to NHS job candidates. The EAT also confirmed that holding the status of ‘external job applicant’ is not sufficient to qualify for protection against discrimination as an ‘other group’ under Article 14 ECHR.
The EAT refused to ‘go against the grain’ of s43K ERA by extending whistleblowing protections to external job applicants. It held that this would be a matter for Parliament.
Employer takeaways
The decision affirms the current position that only actual or former workers are entitled to bring whistleblowing claims where they can show detriment and/or dismissal as a direct result of making a protected disclosure. This protection does not extend to job applicants, save except instances where the individual is protected by statute as an applicant for positions with certain specified NHS employers.
Victimisation
Toure v Ken Wilkins Print
Mr Toure was employed by Ken Wilkins Print as a forklift truck driver from August 2018 until October 2019, when he was dismissed.
In January 2019, it was alleged that Mr Toure was subject to racial abuse. Mr Toure raised a grievance, but this was rejected. He appealed and during that process he told two managers that he would not bring legal proceedings if he was promoted and given a salary increase.
In October 2019, he withdrew his grievance appeal, having not received the promotion or salary increase. He was then dismissed for unrelated misconduct, including the comments he had made to the manager which were perceived as attempted blackmail.
A claim was brought for unfair dismissal and victimisation. Mr Toure claimed that making the allegations of racial harassment constituted a protected act and that his dismissal amounted to victimisation.
His claim was dismissed by the employment tribunal, which found that the initial allegations of racial harassment had been fictitious and that the events and actions that then followed could not amount to victimisation.
On appeal, the EAT also found that the claimant’s allegations of racial harassment were fictitious and made in bad faith, such that it could not form a protected act. However, it also found that the tribunal was incorrect in failing to determine that the claimant’s dismissal may, in principle, be an act of victimisation.
The claimant’s appeal was rejected.
Constructive Dismissal
Leaney v Loughborough University
Dr Leaney was primarily employed as an academic staff member at Loughborough University. Towards the end of his career, he also started to work as a warden in one of the university’s halls of residence.
Following an incident relating to his warden’s duty before to the summer holidays, Dr Leaney took legal advice about an alleged breach of contract and negotiated with the university during the summer break. The negotiations were unsuccessful, and when Dr Leaney returned to work at the beginning of the new academic year, he took sick leave and subsequently resigned. The resignation took place approximately three months after the alleged breach.
Dr Leaney then filed for constructive dismissal.
Employees with more than two years of service may claim constructive dismissal if their employer breaches a fundamental term of their employment contract. When the employee waits too long after a breach to resign, the right to claim constructive dismissal may be lost.
On this basis, the Employment Tribunal rejected Dr Leaney’s claim, finding the gap between the date of the employer’s last alleged breach of contract and the date of the resignation was too long. Crucially, the tribunal determined that in the intervening period, Dr Leaney had affirmed the contract.
Dr Leaney appealed to the EAT.
The EAT clarified the legal position, namely that when one party commits a fundamental breach, the other party has the option of accepting the breach and terminating the contract or affirming it. Delay in communicating a decision to accept a breach does not in itself constitute affirmation. However, on the facts, a delay may result in implied affirmation, depending on what happened in the intervening period, such as whether the claimant continued to undertake work duties.
The EAT considered the facts and found that the period of delay coincided with the university summer break, during which the claimant did not undertake any meaningful work. Negotiations were ongoing throughout the summer, and when it came time to return to work, Dr Leaney was absent due to illness. Furthermore, the EAT recognised that his long service may have required him to take more time to decide before quitting.
The EAT went on to emphasise that if the aggrieved party signals that they are evaluating their position or wishes to allow the other party correct the claimed breach, a delay does not necessarily imply affirmation.
As such, the EAT allowed the appeal and remitted the claim to the same tribunal.
Employer takeaways
While a fact-sensitive issue, this case provides a helpful example of when a delay between the alleged breach and the employee’s resignation does not necessarily affirm the contract. Employers facing similar circumstances should carefully analyse both parties’ behaviour in any intervening period before deciding how to respond to constructive dismissal claims.
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Last updated: 31 January 2024
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
