Robert Spicer
This month we are delighted to share a roundup of Bob Spicer’s latest case law summaries from the past four months, covering key developments in Employment Law.
A huge thank you to Bob Spicer of Frederick Place Chambers for his continued support of Chronicle Law and for allowing us to share his insights with our legal professional community.
Subjects covered
- Trade Unions
- Whistleblowing
- Detriment
- Grievances
- Discrimination
- Sex/ Gender
- Disability
- Time Limit
- Long term and substantial effect
- Philisophical belief
- Pregnancy compensation
- Unfair Dismissal
- Some other substantial reason
- Tribunals
- Unless OrdersEvidence
- Written reasons for decisions
- Control of Pollution
TRADE UNIONS
Letter agreement – Rectification
National Union of Rail, Maritime and Transport Workers and Another v Tyne and Wear Passenger Transport Executive t/a Nexus [2024] UKSC 37, Supreme Court
Facts
The Supreme Court dealt with the relationship between collective agreements, individual employment contracts and rectification. There was a dispute between NURMTW and TWPTE related to the interpretation of a collective agreement known as the letter agreement. TWPTE applied for rectification of the letter agreement.
Decision
1. The letter agreement could be subject to rectification.
2. The proper defendants in a rectification claim were affected employees and not the union.
3. The collective agreement was the appropriate target of rectification.
4. Future rectification claims should involve the proper parties and could not retroactively affect previously decided claims.
WHISTLEBLOWING
Detriment – Worker
MacLennan v The British Psychological Society (2024) Morning Star, November 19, EAT
Facts
M was the president-elect of the BPS. His role was considered to be a voluntary position. He made a number of protected disclosures related to alleged mismanagement. He was expelled from the BPS and claimed that he had been subjected to detrimental treatment connected to his disclosures. The employment tribunal dismissed the claims. M appealed to the EAT.
Decision
1. M’s role as a trustee did not make him a worker. There was no contractual relationship.
2. The right to whistleblowing protection did not apply to charity trustees under article 10 of the European Convention on Human Rights (freedom of expression) or article 14 (freedom of expression).
Protected acts – Grievances
Szucs v Greensquare Group Ltd [2024] EAT 160
Facts
S was dismissed for performance, attendance and attitude reasons. He had less than two years continuous employment. He claimed that the reason for his dismissal was that he had lodged grievances. He argued that the grievances were protected acts and the ET had jurisdiction to hear his complaint of unfair dismissal. G’s HR manager had described S as a complainer. The ET dismissed the complaint. S appealed to the EAT.
Decision
1. The appeal was allowed.
2. The ET had been wrong to separate the “complainer” issue from the complaint of unfair dismissal. This needed to be clearly explained.
3. The ET had not explicitly stated that the protected acts were not part of the reason why S had been dismissed. This was an error.
DISCRIMINATION
Sex Discrimination – Unwanted conduct
British Bung Manufacturing Company & King v Finn [2023] EAT 165
Facts F, an employee of BB, was dismissed following his lodging of a grievance written on West Yorkshire Police headed notepaper. The grievance referred to criminal statutes and rules of procedure. F stated that his son, who was a police officer, had helped to draft the grievance. BB argued that this was a form of threat and intimidation, and that it was intended to mislead BB to consider that the matter had been reported to the police as a crime. F complained of unfair dismissal. Further, F claimed that unwanted language directed towards him amounted to age and sex discrimination. The ET upheld the complaints. BB appealed to the EAT.
Decision 1. The appeal was dismissed.
2. The decisions of the ET had not shown any error of law or perversity.
3. BB had submitted that, for unwanted conduct to refer to sex, it must relate to a matter which was both inherent to the gender is question and in no-one of the opposite gender, was contrary to the purpose of section 26 of the Equality Act 2010.
Disability Discrimination – Time Limit
Smith v The Restaurant Group (UK) Ltd [2024] EAT 168
Facts
S’s employment was terminated on November 17, 2022, after 8 months when she failed to pass the probationary period. On January 23, 2023, she started early conciliation. The EC certificate was issued on February 3, 2023. On February 15, 2023, S’s solicitor started a second early conciliation process. A second EC certificate was issued on March 29, 2023. An ET form was presented on April 29, 2023. S complained of disability discrimination. The ET found that S was a disabled person who suffered from anxiety and depression at the relevant time but that the claims were time barred. S appealed to the EAT.
Decision
1. The appeal was dismissed.
2. The first EC certificate had been valid and the claims were out of time.
Disability Discrimination- Long term and substantial effect
Connor v Chief Constable of South Yorkshire Police [2024] Morning Star, December 10
Facts
C was a civilian employee of SYP. In 2020 he was dismissed for accessing pornography on a workplace computer. C suffered from depression and argued that his conduct had resulted from this disability and that his dismissal had amounted to discrimination. SYP accepted that C suffered from depression but that this had not been long-term. The ET dismissed his complaint of disability discrimination. C appealed to the EAT. The grounds of appeal included procedural irregularities.
Decision
1. The appeal was dismissed.
2. Procedural aspects had not affected the ultimate outcome.
3. The ET had correctly considered whether C’s mental impairment had a substantial long-term effect on daily activities.
4. The absence of GP consultations from 2011 to 2019 and limited evidence of the impact of C’s mental health had undermined his case.
5. The dismissal had been proportionate to the legitimate aims of maintaining workplace standards and public confidence.
Philisophical Belief Discrimination – UKIP membership
Fairbanks v Change Grow Live (2024) Manchester ET, September 17
Facts
Ms F complained that she had been discriminated against because of her political views. She was a supporter of UKIP. The ET stated that membership of a political party was unlikely to amount to a protected characteristic of philosophical belief. Ms F referred to her beliefs as follows:
· The UK should be outside the EU
· Illegal migration should cease
· The halal slaughter of animals should cease
· The UK should leave the European Convention on Human Rights.
Decision
1. The complaint was dismissed.
2. The four opinions were strongly held views and not philosophical beliefs.
Pregnancy Discrimination
Injury to feelings- Vento guidelines
Sadia Shakil v Samsons Ltd (2025) Morning Star, January 28, EAT
Facts
Ms S was employed by S as an accountant. In 2021 she informed the employer that she was pregnant. Her working hours were reduced without notice because of pregnancy-related illness. She was later selectee for redundancy and was dismissed one day before starting maternity leave. She complained of pregnancy discrimination. The complaint was upheld and the ET awarded £5000 compensation for injury to feelings, applying the lower Vento band reserved for less serious cases. Ms S appealed to the EAT against the amount of the award.
Decision
1. The appeal was allowed and the matter was remitted to a different ET for reassessment of the injury to feelings award.
2. The ET had not explained its placement within the lower Vento band and did nor deal adequately with the prolonged and serious nature of the discriminatory treatment.
3. The ET had not properly considered Ms S’s pregnancy-related concerns.
4. The ET had been wrong to take S Ltd’s financial circumstances. These were irrelevant to injury to feelings.
5. The ET had failed to take into account the inappropriate conduct of the litigation, including false assertions and threatening messages sent to Ms S.
UNFAIR DISMISSAL
Some other substantial reason
Alexis v Westminster Drug Project [2024] EAT 188
Facts
WDP carried out a restructuring exercise which involved three posts being replaced by two new posts. The workers employed in the three posts, including Ms A, applied for the two new posts by competitive interview. Ms A was dyslexic and her application was unsuccessful. She lodged a grievance related to the interview process, arguing that the interview questions should have been provided to her 24 hours in advance of the interview. The outcome of the grievance was that she was offered a new interview. She rejected this and appealed. The outcome of the appeal was largely in her favour but she also rejected this.
Ms A sent a number of emails to the decision maker and to the chairman of WDP. Following a meeting to discuss whether her future employment was tenable, it was decided that Ms A had no confidence in her employer and the employment relationship had irretrievably broken down. Ms A was dismissed for some other substantial reason. She complained of unfair dismissal. Her complaint was rejected by the employment tribunal. She appealed to the EAT on the basis that inadequate consideration had been given to her length of service or an alternative to dismissal.
Decision
1. The appeal was dismissed.
2. There had been no alternative to dismissal because of the decision maker’s finding that the employment relationship had irretrievably broken down.
3. The length of service was not relevant.
EMPLOYMENT TRIBUNALS
Unless orders
Sivanandan v IOPC and Penna Plc (2025) Morning Star, February 11
Facts
Ms S complained of sex and race discrimination. The ET dismissed the complaints. P Plc applied for costs against Ms S. The ET issued an unless order requiring P Plc to serve a costs schedule. P Plc missed the deadline for compliance with the order by four hours. The ET dismissed the application for costs but granted relief from sanctions. The costs application was allowed to proceed. The ET accepted P Plc’s explanation for the delay. It decided that the delay had caused minimal prejudice to Ms S and that the denial of relief to P Plc would have significant consequences. Ms S appealed to the EAT.
Decision
1. The appeal was dismissed.
2. The ET had been correct to decide that the delay had caused no significant prejudice to Ms S.
3. The ET’s decision to grant relief was discretionary and not perverse. It appropriately weighed factors such as the reasons for non-compliance, the seriousness of the default and the overarching goal of justice.
Evidence – Pre-termination negotiations
Gallagher v McKinnon Auto and Tyres [2024] EAT 174
Facts
G’s employment with MAT was terminated for redundancy. Before his dismissal he was offered a settlement agreement at an off the record meeting. He was offered £10,000 subject to a 48 hour deadline to respond. He complained of unfair dismissal. He sought to bring evidence of the offer. The ET ruled that this evidence was inadmissible because of section 111A of the Employment Rights Act 1996. This section, in outline, provides that evidence of pre-termination negotiations is not admissible in unfair dismissal claims except where there had been improper behaviour. The ET found that there had been no undue pressure or impropriety. The off the record meeting had been carried out in a clam and measured way. The 48 hour deadline had not been unreasonable. G appealed to the EAT.
Decision
1. The appeal was allowed.
2. The meeting and offer had been appropriately conducted and did not meet the threshold for improper behaviour.
3. The 48 hour deadline was reasonable.
4. Claims of improper behaviour need strong evidence.
5. The cumulative factors which G raised did not show undue pressure or a lack of fairness.
Written reasons for decision – Copied from witness statements or written submissions
Kemsley v Cambridgdeshire County Council [2024] EAT 180
Decision
1. Most of the ET’s written reasons had been copied from C’s witness evidence or written submissions. There was no reference to K’s witness evidence or written submissions.
2. The EAT could not conclude that there had been a proper evakuation of the issues.
3. The ET’s decision that there had been no detriment for the purpose of a victimisation claim was not fully reasoned. There had been a large number of incidents and C had conceded that some of the incidents had amounted to detriments.
4. The ET had failed to rule on an allegation by K that a manager had victimised her by dismissing her on the basis of tainted information.
5. The ET had also failed to rule on an allegation that an offensive email amounted to sexual harassment where the alleged harasser had made derogatory statements. The ET had found that K had not seen the email despite uncontested evidence that she had seen it.
6. The ET had failed to state its ruling on allegations by K which were relevant to her claim of age discrimination.
CONTROL OF POLLUTION
Bitcoin password dumped on landfill
Howells v Newport City Council [2025] ERWHC 22
Facts Mr Howells (H) stated that in 2013 his then partner mistakenly discarded a laptop hard drive which contained the private and public key addresses necessary to access his Bitcoin funds. He had misidentified the hard drive and put it into a bin liner during a clearout. This resulted in his then partner disposing of the bag at the Newport Household Waste and Recycling Centre. The estimated value of the Bitcoin funds was more than £600 million. Since 2013 H repeatedly requested access to the landfill site with the aim of retrieving the hard drive. He offered to contribute 10 per cent of the Bitcoin’s value to the Newport community if he could recover the hard drive. Newport City Council refused these request on the basis that it was the legal owner of the hard drive because it was deposited at the landfill.
H brought proceedings against the Council comprising three heads of claim, as follows:
· A proprietary restitutionary claim
· An equitable proprietary claim
· A claim for declarations that H was the legal owner of the hard drive and all tangible and intangible property on it.
· Either an order for delivery up of the hard drive or damages for its wrongful retention.
The Council applied for the claim to be struck out, relying on section 14 of the Control of Pollution Act 1974. This states, in summary, that anything delivered to the authority by another person in the course of using the facilities shall belong to the authority and may be dealt with accordingly.
On behalf of the Council it was accepted that it did not own the Bitcoin. It owned the hard drive and H had no right to have it or to gain access to it. What was on the hard drive was at most a digital record of the private address key and not the private key itself.
Decision
The High Court dismissed the claim on the basis that there were no reasonable grounds for bringing the case. The Judge made the following points:
· The only relevant issues in the case concerned the ownership of and rights of access to the hard drive.
· The law of England and Wales had historically recognised two different kinds of personal property: things in possession (tangible property) and things in action (tangible property).
· Things in possession were physical things, and things in action were rights that had existence only as being enforceable within a legal system, for example debts or intellectual property rights.
· It was generally recognised that cryptocurrency such as Bitcoin was also property. It did not fit within what the law recognises as tangible or intangible property and, as such, it was said to be within a third category of personal property.
· The only thing that went into landfill was the hard drive. It was the Council’s argument that the hard drive was delivered to the site by another person, namely H’s partner at the time. She delivered it in the course of using the facilities and in those circumstances the hard drive belonged to the Council and H was not entitled to it.
· It was argued on behalf of the Council that section 14 of the Control of Pollution Act stated that anything delivered shall belong to the authority but did not say that it shall cease to belong to the former owner. The Judge rejected this argument, stating that any qualification of the words “shall belong to the authority” would be contrary to the point of the provision.