Increase of limits on tribunal awards from April 2021
Compensation limits for certain tribunal awards and other statutory payments will apply where the effective date of termination falls on or after 6 April 2021, as follows:-
• The limit on a week’s pay increases from £538.00 to £544.00.
• The maximum compensatory award for unfair dismissal increases from £88,519.00 to £89,493.00.
• The minimum basic award for certain unfair dismissals (including health and safety dismissals) increases from £6,562.00 to £6,634.00.
Employer not entitled to dismiss employee for conducting surveillance in workplace (EAT)
The EAT (Lord Summers) has held that an employer was not entitled to dismiss an employee who was conducting surveillance in the workplace, noting that the employer had failed to conduct a balancing exercise between the right to privacy and the employee’s desire to protect his confidential information. The employee had set up a camera to monitor whether anyone had entered his office to access his computer. However, the case was remitted to a fresh tribunal to consider whether it was fair to dismiss the employee on the basis he failed to follow a management instruction.
The EAT also held that if an employer is conducting disciplinary investigations into multiple employees whose cases are related, there is no need for the investigation of the employees to be “sealed off” from one another. It further highlighted the need to ensure evidence is adduced from relevant witnesses, suggesting the employer’s failure to do so in this case may have led to the tribunal preferring the employee’s evidence over that of the employer. (Northbay Pelagic Ltd v Anderson UKEATS/0029/18 (28 January 2021).)
Tribunal erred in concluding that binding agreement had been reached on transfer of ownership of company car on termination of employment (EAT)
The EAT has held that a tribunal erred in concluding that a binding agreement had been reached for transfer of ownership of an employee’s company car on termination of his employment.
Mr Harrington’s employment terminated by reason of redundancy. This was not in dispute. Prior to the termination of his employment, severance terms were discussed over several months. These discussions addressed, among other things, transfer of ownership of his company car and computer, and a bonus payment, if he worked his notice period. Before Mr Harrington’s employment terminated, he was given a letter confirming that he would receive redundancy pay and be “gifted” his company car. The letter was silent on his computer and bonus. He submitted an appeal letter in which he accepted the “gift” of the car but challenged the overall severance offer, which he viewed as being incomplete based on earlier oral discussions. When ownership of the car was subsequently not transferred to him, he brought a breach of contract claim.
The EAT concluded that it was open to the tribunal to find that the car was being “offered” to Mr Harrington as part of severance proposals; this reflected the “industrial reality” of the situation. However, it had erred in concluding that he could accept part of the severance offer, while seeking to improve on other parts. The EAT considered that negotiation of severance agreements would become too complex if a party could unilaterally sever, and accept, some terms while seeking improvement to others. The offer of the car did not stand on its own; it was made as part of wider employment termination discussions. It is a reminder of the benefit of entering into settlement agreements.
Case: Evergreen Timber Frames Ltd v Harrington UKEAT/0072/20 (10 March 2021) (Judge Clarke, sitting alone).
Removal of Christian non-executive director from office for speaking in public against homosexuality and same-sex couple adoption was not discriminatory (Court of Appeal)
The Court of Appeal (Underhill LJ giving the leading judgment) has held that an employment tribunal was entitled to find that an NHS Trust Development Authority did not discriminate against a Christian non-executive director, Mr Page, on religious grounds when it decided not to renew his term after he spoke out in public against homosexuality and same-sex couple adoption. Mr Page gave several interviews to the media making it clear that he thought that homosexual activity was wrong and that he did not agree with same-sex marriage.
The court observed that there are circumstances in which it is right to expect Christians (and those of other faiths) who work for an institution, especially if they hold a high-profile position, to accept some limitations on how they express their beliefs in public on matters of particular sensitivity. Whether such limitations are justified in a particular case can only be judged by a careful assessment of all the relevant circumstances in order to strike a fair balance between the rights of the individual and the legitimate interests of the institution they work for. (Page v NHS Trust Development Authority  EWCA Civ 255 (26 February 2021).)
The EAT has overturned an employment tribunal’s finding that two disclosures made by a consultant solicitor about alleged overcharging by the firm for which he worked, had not, in the solicitor’s reasonable belief, been made in the public interest, and so were not protected disclosures under the whistleblowing legislation.
If the solicitor held a genuine and reasonable belief that his disclosures were in the public interest, that did not have to be his predominant motive in making them. If he reasonably believed that he was disclosing information that tended to show the firm was overcharging the client, in breach of the Solicitors Accounts Rules or other regulatory obligations, the disclosures did not cease to be protected merely because they were made in the context of concerns about the client’s prospects of recovering litigation costs from its opponent.
A disclosure of information relevant to only one person can be a matter of public interest, such as in the case of a one-off error in the medical treatment of a patient. In this case, the disclosures could have advanced the general public interest in solicitors’ clients not being overcharged, and solicitors complying with their regulatory requirements.
TUPE: ECJ decision on transfer to multiple transferees applies to service provision changes (EAT)
The EAT (The Honourable Lord Fairley) has held that in a transfer to multiple transferees the employment contract of a transferring worker could be split between each of the transferees in proportion to the tasks performed by the worker.
The EAT held that there is no reason in principle why an employee may not, following a service provision change, hold two or more contracts of employment with different employers at the same time, provided that the work attributable to each contract is clearly separate from the work on the other(s) and is identifiable as such. The division, on geographical lines, of work previously carried out under a single contract into two new contracts is, in principle, a situation where there could properly be found to be different employers on different jobs. (McTear Contracts Ltd v Bennett and others UKEATS/0023/19; Mitie Property Services UK Ltd v Bennett and others UKEATS/0030/19 (25 February 2021).)
Working time: assessing whether standby periods are working time (ECJ)
The ECJ has considered whether a period of standby, during which a firefighter had to be able to reach the town boundary of their workplace within a 20-minute response time, in uniform and in their service vehicle, was working time. It held that a period of standby would be working time in its entirety if, in all the circumstances (in particular the consequences of the required response time and, where appropriate, the average frequency with which standby was interrupted), the constraints imposed on the firefighter during standby objectively and very significantly constrained their ability to freely manage and devote to their own interests that part of standby during which their services were not required by their employer.
The comments in this note are of a general nature only. Full advice should be sought on any specific problems or issues.