Adrian Fryer
Discrimination arising from disability happens when an employer treats an employee unfavourably because of ‘something’ arising from their disability and the employer cannot justify the treatment as a proportionate way of achieving a legitimate business aim. In DWP v Boyers, the EAT examined a case where the employer had legitimate business aims but the actions they took to achieve them were found to be disproportionate.
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Restrictive covenants are terms in contracts of employment which restrict the employee’s activities after employment has ended. They will be void – and unenforceable – for being in restraint of trade unless the employer can show it has a legitimate proprietary interest to protect and the clause goes no further than is reasonable to protect it. If an employer thinks that an employee has breached a restrictive covenant, they can apply for an interim injunction to stop the employee’s activities pending a full trial which will decide whether the clause is enforceable. The court will consider whether the employer has a strong case, whether damages (compensation) would be an adequate remedy, the ‘balance of convenience’ between the parties in relation to an injunction and whether the ‘status quo’ should be maintained pending a trial. In a recent case, the Court of Appeal has analysed the test which the court must apply when making decisions about interim injunctions.
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An employee is constructively dismissed if the employer fundamentally breaches the contract of employment and the employee resigns in response. A breach of the implied term of trust and confidence will be a fundamental breach of contract. The test is an objective one – is the employer’s conduct likely to destroy or seriously damage the trust and confidence between employer and employee? A constructive dismissal can be created by a series of events as well as a one-off incident. If there is a series of incidents, which taken together amount to a breach of contract, the employee can resign in response to the last in the series, even if that in itself is not a fundamental breach of contract (though it cannot be utterly trivial). This is called the ‘last straw’ principle.
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An employer should follow the Acas Code of Practice on disciplinary and grievance procedures when dealing with grievances or dismissing an employee for disciplinary reasons such as misconduct or poor performance. The Code does not apply to redundancy dismissals. If the employer unreasonably fails to follow the Acas Code, the employment tribunal can increase compensation by up to 25 per cent if it is ‘just and equitable’ to do so. In Rentplus v Coulson, the EAT looked at whether an uplift of 25 per cent could apply to a discriminatory dismissal that the employer had said was a redundancy dismissal.
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Section 230(3)(b) ERA says that an individual will be a ‘worker’ if they work under a contract with the company and have agreed to personally perform some work. However, they won’t be a worker if they are running their own business and the company is a client or customer of that business. In Sejpal v Rodericks Dental, the EAT has looked at the worker status test and how it applies to a working relationship that is defined in the contractual paperwork as one of self-employment.
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‘Without prejudice’ correspondence or conversations, which take place in a genuine attempt to settle a dispute, cannot then be used as evidence in subsequent legal proceedings. There are a few exceptions, including that the without prejudice rules should not be allowed to hide any clear cases of ‘unambiguous impropriety’, such as blackmail or perjury (lying under oath). Unambiguity is the key – the situation must be clear cut. As such, the without prejudice label will only be lifted very rarely.
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The B word – banter – is a word employers should dread. Good teams will thrive on a joke or two between workplace friends. However, offensive and potentially discriminatory comments can be masked as ‘banter’, indicating to the recipient that taking offence is unreasonable. A culture where banter is acceptable is likely to affect productivity and staff retention. It will also expose the employer to the risk of tribunal claims, especially harassment. Harassment is unwanted conduct related to a protected characteristic which has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile or offensive environment for the employee.
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Robert Maddocks, qualified as Solicitor in 2008 and joined Bermans in July 2019 as a Senior Associate in the Employment team.
Adrian Fryer
Employers dread the vexatious litigant. Even the most spurious of tribunal claims takes up valuable management time and incurs legal fees to defend. The judgment of the EAT in Attorney General v Taheri will be a salve to those employers who have previously had their fingers burned by a serial complainer. The EAT can make an RPO – an order restricting an employee’s right to bring tribunal proceedings – if the employee has habitually and persistently, and without reasonable grounds, brought vexatious proceedings in the employment tribunal (or EAT) against one or more employers. In Taheri, the EAT has shown that there is a limit to what the employment tribunal system is prepared to accept from a vexatious litigant.
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The Agency Workers Regulations 2010 (AWR) are derived from EU law. They aim to strike a balance between protecting agency workers and preserving the benefits of flexibility that using an agency provides to both businesses and workers. The AWR contain anti-discrimination provisions. Agency workers must be given the same basic terms and conditions of employment as direct recruits when they have worked for a hirer for 12 weeks. Regulation 13 gives agency workers the ‘day 1’ right to be told by the hirer about any relevant vacancies, with the aim of giving agency workers the same opportunity as direct recruits to find permanent employment within the business. The information can be given in a general announcement in a suitable place in the hirer’s business.
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