Quarterly employment case law update January 2020

We take a look at some of the key cases from the past three months and the lessons which we can learn from them.

Unfair dismissal

In Jagex Ltd v McCambridge, the Employment Appeal Tribunal (EAT) considered if contributory conduct in an unfair dismissal case can only apply where there has been gross misconduct.

Mr McCambridge found salary information of a senior executive which had been left at a communal printer and shared this with another colleague. The information was then subsequently shared with other employees. Another colleague started a game at lunchtime to guess the senior executive’s salary. The company held a disciplinary hearing with Mr McCambridge and dismissed him for gross misconduct on the basis that sharing the salary information was a significant breach of trust and confidence. The other employees who saw the document and who were involved in the lunchtime game were not disciplined.

Mr McCambridge brought a claim for unfair and wrongful dismissal against the company to the Employment Tribunal (ET). The company argued that Mr McCambridge had breached his contract of employment by failing to treat the document as confidential. The ET disagreed and pointed out that the senior executive, whose salary had been disclosed, could have also breached their own contract by leaving the confidential document on a communal printer. The ET also concluded there would be no compensation reduction for contributory fault as Mr McCambridge’s actions did not amount to gross misconduct. The company appealed.

The EAT allowed the company’s appeal on contributory fault and found that conduct does not need to amount to gross misconduct in order for it to contribute to an employee’s dismissal. The correct test is to consider if the conduct was culpable, blameworthy, foolish or similar, which includes conduct that falls short of gross misconduct and need not necessarily amount to a breach of contract.

This case is important for employers as it confirms that any relevant conduct by an employee can be taken into account when considering if they have contributed to their dismissal.

In Sunshine Hotel Ltd v Goddard, the EAT confirmed that a separate investigatory and disciplinary hearing is not required in every case for a subsequent dismissal to be fair.

Mr Goddard was suspected of sleeping while on duty and the company conducted an investigation, which included watching some CCTV footage. The company did not speak to Mr Goddard before his disciplinary hearing and he was subsequently dismissed. He brought a successful unfair dismissal claim before the ET. The company appealed, arguing the ET had incorrectly found an investigatory meeting was necessary for the dismissal to be fair.

The EAT agreed that there is no specific requirement in the ACAS Code of Practice or under statute or case law for there to be a separate investigation and disciplinary hearing in every case. Instead, what is required is as much investigation into the matter as is reasonable in the circumstances. The EAT confirmed that the ET had found the investigation did not satisfy this requirement and had based its decision on the fact there had not been a proper investigation; not because there should be a separate investigation and disciplinary hearing. The EAT upheld the finding of unfair dismissal.

While this case identifies that it is not necessary in every case to hold an investigatory meeting before inviting an employee to a disciplinary hearing, it is fact specific and larger employers are well advised to continue to hold an investigatory hearing.

Discrimination

In Sethi v Elements Personnel Service Ltd, an ET found that a temporary work agency indirectly discriminated against a practicing Sikh, when it refused to keep him on its books because he would not shave his beard for religious reasons.

Mr Sethi adhered to kesh (the requirement that body hair must not be cut). He sought work with Elements, that worked predominately with high-end hotels. The agency had a “no-beards” policy which was around appearance and not hygiene reasons.

Mr Sethi informed Elements that he would not be able to cut his beard due to religious reasons but was told by the agency that all its high-end clients required staff to be clean-shaven for hygiene reasons. Mr Sethi brought a claim against Elements, alleging that the no-beards policy amounted to indirect discrimination related to his religion.

The ET found that the policy placed Sikhs generally at a particular disadvantage. While the ET accepted it was a legitimate aim for the agency to comply with client requirements, a blanket no-beards policy was not justified as a proportionate means of achieving that aim. No evidence had been obtained by the agency to suggest if there would be an exception for a Sikh worker and not all agency clients had the no-beards requirement.

This case highlights the need for employers to carefully consider implications of adopting policies that simply impose blanket bans without proper justification.

In Casamitjana Costa v The League Against Cruel Sports (LACS), the ET held that ethical veganism is a philosophical belief protected under the Equality Act 2010 (“EqA”).

Mr Casamitjana claimed that he was dismissed by LACS (an animal rights charity), after he raised concerns around investments into companies involved in animal testing. LACS alleged that Mr Casamitjana was dismissed because of gross misconduct and not for his belief in ethical veganism. This issue is yet to be determined by the ET. 

Whistleblowing

Finally, the case of Tiplady v City of Bradford Metropolitan District Council looked at whether, to obtain whistleblower protection, the detriment suffered by the worker had to be in the field of employment rather than a detriment suffered by a worker in their private or personal capacity. Mrs Tiplady was a senior planning officer employed by the council. She also had dealings with the council in a private capacity about a sewer and shed at a property she and her husband owned within the council’s area of control. She raised a grievance at work and ultimately resigned from her employment with the council, bringing claims for constructive unfair dismissal, automatic unfair dismissal and detriment on the grounds that she had made protected disclosures regarding the council’s handling of the issues at her property. However, her detriment claim failed because the detriment claim related to the council’s dealings with the sewer and shed issues and so concerned Mrs Tiplady in her capacity as a householder and not as an employee. This case makes it that the protection against detriment relates solely to the employment sphere and not to the wider functions that might be performed by employers where they are suppliers of goods and services to the public at large, which may also include its own employees.