Gordons Legal Employment Update – 10 November 2017

Refusal of employment on grounds of trade union activities

In the recent case of Jet2.com Ltd v Denby, the Employment Appeal Tribunal considered how far legal protection from being refused employment due to being “a member of a trade union” should extend.

Mr Denby began working as a pilot for Jet2 in 2005 and was a member of the British Airline Pilots’ Association (BALPA).  The executive chairman of Jet2 made clear his hostility, in no uncertain terms, to both BALPA and to Mr Denby in July 2009 when refusing Mr Denby’s request that BALPA represent Jet2’s pilots.   Mr Denby subsequently left the employment of Jet2, but some years later applied on two separate occasions to rejoin the company as a pilot.  Following Mr Denby’s second unsuccessful application, the executive chairman emailed a colleague to state:

“[Mr Denby] told me he was a shop steward at his previous company before us as well – so I don’t know why this leopard will change his spots.”

The Employment Tribunal found that the reason Mr Denby was refused employment was because of his past advocacy for BALPA, such refusal being unlawful because, even though it was not because of his union membership per se, his advocacy for BALPA was incidental to his membership.  Jet2 appealed on the basis that, if the refusal of employment was due to Mr Denby’s union “activities”, the Tribunal had adopted too broad an approach to what constitutes “membership”.

The Employment Appeal Tribunal (‘EAT’) held that the term “membership” was not to be understood narrowly, and that refusing employment to Mr Denby because of his union activities amounted to refusing employment because of union membership.  The EAT went on to state that to construe the word “membership” narrowly would impinge on Mr Denby’s right to freedom of expression as enshrined in the European Convention on Human Rights.

Comment: Employers should be aware that refusing an applicant employment for a reason connected to their union membership, even if the reason isn’t specifically their membership, runs the risk that such refusal will be found to be unlawful.

Unfair dismissal – only the mind of the decision maker is relevant

In Royal Mail Ltd v Jhuti the Court of Appeal considered whose thought processes are relevant in determining the reason for the dismissal of a whistleblower in the context of an unfair dismissal claim.

Shortly after Ms Jhuti commenced her employment in the Sales Division of Royal Mail in 2013, she reported to her line manager that a colleague had broken Royal Mail’s regulator’s rules.  Under pressure from her line manager, she retracted the allegation and apologised.  However, she was then subject to unreasonable criticism and given unattainable targets by her line manager, which amounted to “setting up a paper trail which set her to fail”.  This culminated in her performance being investigated by the Head of Sales Operations.  The Head of Sales Operations, unaware of the full picture regarding the disclosures that Ms Jhuti had made, terminated Ms Jhuti’s employment due to poor performance.  Ms Jhuti brought a claim for unfair dismissal on the basis that her employment was terminated due to the disclosures she had made. She did not have enough service to bring an ordinary unfair dismissal claim so was claiming that her dismissal was automatically unfair under the whistleblowing legislation.

The first-tier Tribunal found that the thought processes of the Head of Sales Operations were not affected by Ms Jhuti’s disclosures and therefore the disclosures were not the reason for the dismissal.  However, the EAT overturned this decision on the basis that, as the Head of Sales Operations was unaware of the facts and had her decision manipulated by a manger in possession of the facts, the motivation of the line manager could be attributed to the employer and the dismissal was thus found to be unfair.

The Court of Appeal reversed the EAT’s decision, determining that only the thought processes of the person taking the decision to dismiss are relevant and consequently Ms Jhuti’s claim for unfair dismissal failed.  In this instance, as the Head of Sales Operations was unaware of Ms Jhuti’s disclosures and had not considered them when making her decision to dismiss Ms Jhuti, they could not be said to be a factor in that decision.

Comment:      While it may seem unjust that an employer would not be liable for unfair dismissal where the decision to dismiss was made on a false premise, the Court stressed the importance of the principle that unfair dismissal requires a finding of unfairness on the part of the employer; it follows that only the thoughts of those charged by the employer to make decisions on its behalf can be attributed to the employer.   However, employers should be aware of the following points confirmed by the Court:

• Where a decision to dismiss has been manipulated by someone senior or someone close to the disciplinary process (such as possibly the investigation manager), that person’s motivation may be attributed to the employer by a Tribunal; and
• Even though unfair dismissal may not be available to a dismissed employee in Ms Jhuti’s situation, it does not follow that they will be unable to bring an alternative claim and recover compensation for the losses caused by the dismissal. In other words there may be an alternative route to justice, such as a whistleblowing detriment claim.

Can a victim of discrimination refuse to work?

It fell to the Court of Appeal in the recent case of Rochford v WNS Global Services (UK) Ltd to consider whether the refusal to work by a victim of discrimination amounted to misconduct.

Mr Rochford had worked for WNS Global Services (UK) Ltd in a senior sales role since 2011.  In February 2012 he had surgery on his back and was off work for almost a year.  WNS wanted Mr Rochford to carry out limited duties on his return to work but Mr Rochford was not prepared to return in anything other than his full role.  He raised an internal grievance alleging disability discrimination, and his refusal to work following his return in January 2013 led to his summary dismissal for misconduct in April 2013.

The Employment Tribunal and then the Employment Appeal Tribunal both found that WNS had indirectly discriminated against Mr Rochford by demoting him and failing to inform him when he could expect to return to full duties. However, even though Mr Rochford’s dismissal was also found to be procedurally unfair, the Tribunal found that his refusal to work amounted to gross misconduct such to justify dismissal in any event, the result being that his compensation was reduced to a very modest sum.  Mr Rochford appealed on the basis that his refusal to work in the circumstances should be considered a refusal to acquiesce to his own discrimination.

The Court of Appeal dismissed Mr Rochford’s appeal, finding that his refusal to work was not a reasonable response to the discrimination, especially given that his contract allowed for him to undertake such work which was within his capability.  Being the victim of discrimination did not give Mr Rochford the absolute right to refuse to work.

Comment:      Although the threshold was not reached in this case, the Court reiterated the right of employees to refuse to work in certain circumstances.  Employers should note that the judgment confirms the importance of properly planning an employee’s return to work, and does not provide blanket authority for the dismissal of employees who refuse to work.

Minding the gender pay gap

Figures published by the Office for National Statistics show that the pay gap for full-time workers in the UK has narrowed slightly from 9.4% in 2016 to 9.1% today, meaning that at the current rate it would take about 40 years to reach parity between men and women in full-time positions.  The UK’s overall gender pay gap has widened to 18.4% in the same period.

It was against this backdrop that the Prime Minister announced a new drive to improve gender equality in the workplace and to encourage employers to play their part in reducing and ultimately eliminating the gender pay gap.

At present all employers with over 250 employees will be required to publish data on pay according to gender (including bonuses) by April 2018.  The Prime Minister has now urged companies with fewer than 250 employees to voluntarily publish their own data, and has called upon all companies to take steps to ensure that there are no barriers to women filling senior positions and to advertise all jobs as being flexible from day one, unless there are genuine business reasons not to.

Comment:      Given the estimate by management consulting firm McKinsey & Company that the UK would add £150 billion to its economy by 2025 by closing the gender pay gap, it is in everyone’s interests that this gender inequality is addressed.   If your business requires any advice on its obligations regarding publishing data on pay by gender, please contact a member of the Employment Team.

If you require any further information on the above developments then please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.