30/04/2015
Joanna Smart provides our regular monthly edit of the latest workforce law developments. This month, we cover the latest update in the long running UNISON legal challenge against Employment Tribunal fees; how the newly inserted "public interest" requirement for protected disclosures has been interpreted in the courts; and the recent zero hours / victimisation case: Southern v Britannia Hotels Ltd.
Tribunal Fees: appeal hearing listed
Since the introduction of the tribunal fees in June 2013, UNISON have made two judicial review challenges in the High Court against the lawfulness of the fees, arguing that
- fees deny access to justice for workers treated unfairly by employers and are, therefore, unlawful; and
- fees also have a disproportionate impact on women.
Both challenges failed; however, UNISON has now been granted permission to appeal against those decisions. It is expected the appeal will be heard in June 2015.
What is "in the public interest"?
In Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed, the Employment Appeal Tribunal (EAT) has explored, for the first time, the threshold of the new requirement that 'whistleblowing' disclosures must be "in the public interest" in order to qualify for protection.
Prior to the insertion of the new 'public interest' test, a 'qualifying disclosure' for the purposes of whistleblowing legislation could include a breach of the whistleblower's own contract of employment; this was deemed too broad and, therefore, the new requirement for disclosures to have a 'public interest' element was introduced.
In the above case, Mr Nurmohamed, having been dismissed after making complaints about manipulation of the company's accounts (which he alleged drove down bonuses for him and 100 senior managers) successfully brought a claim for automatically unfairly dismissal and detriment on the grounds that he had made three protected disclosures.
The Employment Tribunal held that it was not required that a disclosure had to be of interest to the entirety of the public, as it was inevitable that only a section of the public would be directly affected by any given disclosure. They held that the disclosure was made with a reasonable belief that it was "in the public interest" as it was made in the interest of 100 senior managers.
Chestertons appealed the decision, stating that the disclosures had not been made "in the public interest", as 100 managers was not a sufficient section of the public and that, in fact, the disclosures were personal to Mr Nurmohamed, rather than public. The EAT dismissed the appeal, upholding the Tribunal's decision.
Of particular note is the fact that the EAT agreed with the Tribunal that the disclosures, in order to be in the public interest, did not have to affect the whole of the public, but only a small group (here, 100 senior managers were affected). Even though it was clear that Mr Nurmohamed had considered his own position, it was shown that he had also considered the position of these other senior managers as well, and that was sufficient.
Zero Hours, Harassment, Vicarious Liability and a hefty award
Hitting the headlines against the background of increased political and media scrutiny of zero hours contracts, is the recent unreported employment tribunal case of Southern v Britannia Hotels Ltd and another in which a worker under a zero hours contract successfully brought a claim for gender harassment and was awarded £19,500 for injury to feelings.
Miss Southern claimed her line manager had harassed her for a period of 8 months; this included him asking her to talk about her sex life, making inappropriate comments about her personal life, touching her on the bottom, kissing her neck and simulating sexual intercourse behind her. Despite complaining about this early on by way of a written complaint, Brittania took no further action until Miss Southern confided in a manager at a later date saying she had not wished to raise the matter again after her original complaint for fear that her shifts would be reduced.
A key issue in this matter was the perfunctory nature of the subsequent investigation; a key example of this being that, when a witness was identified who verified some of the above behaviour, only ten minutes was spent interviewing her. The outcome of the investigation simply stated that certain "mannerisms and behaviour" by another member of staff towards her were inappropriate. Miss Southern's line manager was not subject to any disciplinary action whatsoever other than being told to desist from such behaviour in the future.
After the Tribunal claim was lodged Brittania conducted a re-investigation which was, once again, flawed - not least because the investigating officer failed to review the papers in the original investigation. This outcome held that there was "no conclusive evidence" that the majority of incidents had occurred and that although the neck-kissing had happened Miss Southern had to some extent encouraged it. Her line manager was required to attend a bullying and harassment course.
The Tribunal upheld the claim. They held that her line manager had harassed Miss Southern and Britannia was vicariously liable for it. Brittania's efforts to rely on the statutory defence under section 109(4) Equality Act 2010 – i.e. that they took all reasonable steps to prevent the harassing behaviour – failed.
There is no doubt that the injury to feelings award in this case was sizeable. In reaching this figure, the Tribunal took into account
- Miss Southern's vulnerability (she was only 22 and had a history of mental health problems)
- the abuse of power by her manager
- the protracted time period during which the harassment occurred and was then investigated and
- the inadequate and dismissive approach taken by Brittania.
These factors meant the award fell within the highest Vento band (£18,000 to £30,000).
The investigation conducted by Britannia is undoubtedly an example of how not to conduct investigations; not only was it woefully inadequate but it was also unnecessarily protracted.
Whilst Miss Southern's zero hours status was only briefly referred to in the judgment, this of itself was certainly a factor in her vulnerability on the basis she did not feel secure enough to pursue her complaints, in case her hours were reduced as a result.
Please note that new regulations protecting zero hours workers have been passed but are not yet in force. For further information, please see our March 2015 article: The Truth About Zero Hours Contracts.
Employment law workshops
Our Bristol employment law workshop on managing difficult grievances and SOSR dismissals took place yesterday, but we have some places remaining on the same workshop which are running in London and Birmingham next month. Please click on the links below for more details, and to register your interest.
Birmingham - 14 May 2015
