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activities during social events which may make the company liable for their actions. X v Y Ltd In the case of X v Y Ltd, which is protected from public disclosure, the Employment Appeal Tribunal (EAT) was tasked with deciding whether an employer’s redundancy procedure had been unfairly used to dismiss a disabled employee who had previously raised a grievance against the company. The employee, X, had worked as a lawyer at Y for over 25 years and suffered from type 2 diabetes and sleep apnoea. Despite the length of service, the relationship between both parties had deteriorated somewhat over the previous five years. The employer had noted continued concerns about the employee’s quality of work, whilst the employee himself had raised a grievance claiming disability discrimination over the employer’s failure to make reasonable adjustments. A series of events transpired which led to X feeling as though attempts were being made to force him out. On one occasion, when attending a pub after work, X overheard a conversation between two ‘professionally dressed women’ discussing an unnamed senior lawyer, fitting his description, who had previously made a discrimination claim against Y. They stated that an impending company restructure would offer a good opportunity for them to manage this individual out of the business. A short while later, the employee received a leaked email from an anonymous source containing a conversation referring to him by name with reference made to the use of the upcoming reorganisation to create a redundancy situation that would see him leave the business. A few months later, X was made redundant and dismissed with notice. He proceeded to bring claims to the employment tribunal (ET) for disability discrimination, victimisation and unfair dismissal, referring to the aforementioned email and the conversation that he had overheard. The ET struck out the claim, stating that as Y was a recognised law firm both the email and conversation were protected by legal privilege and could not be used as evidence. They did consider if the iniquity principle applied, whereby this privilege could be waived given that the act could potentially be considered fraudulent or criminal; however, they concluded that this was not the case.
X appealed to the EAT, arguing that the ET had erred in not overturning the legal privilege as, in his view, the email he had received had been written with the purpose of victimising or discriminating against him. In its ruling, the EAT outlined that whilst the act of discrimination may be different in degree from advice on how to commit fraud, there are instances where the discrimination is so unconscionable that it flies in the face of public policy and, as in this scenario, even attempts to deceive an ET. As such, the EAT agreed with X and ruled that both the email and the conversation could not be protected by legal privilege. The EAT analysed this evidence and highlighted that the email did not contain any advice on neutral selection for redundancy, but instead concentrated solely on how the redundancy procedure could be used to get rid of X and referred to his ongoing allegations of disability discrimination. X’s claims were ultimately upheld, with the EAT agreeing that the employer had unlawfully used this redundancy as ‘a cloak’ for his dismissal. ...right to transfer over to the new employer with their role intact... This case reminds employers that a redundancy procedure must always be conducted in a fair and appropriate manner. Following the correct procedure is vitally important to avoiding costly tribunal claims and it is not acceptable to try and use a redundancy simply to force out a ‘problem employee’. Hare Wines Ltd v (1) Kaur (2) H&W Wholesale Ltd The case of Hare Wines Ltd v (1) Kaur (2) H&W Wholesale Ltd centres around the Transfer of Undertakings (Protection of Employment) Regulations 2006, otherwise known as ‘TUPE’, and whether the employer unlawfully used this procedure as a way of getting rid of a problem employee. The employee, Ms Kaur, had originally worked as a cashier for a wine and beer wholesale business, H&W Wholesale Limited. When this business entered financial difficulty, it was purchased by Hare Wines Ltd which, under TUPE, became the ‘transferee’.
The TUPE procedure required all of the employment contracts to be transferred to Hare Wines Ltd, but two days before the transfer a discussion was held between the employee and the old employer regarding the new business. At the end of this meeting, Kaur had her employment terminated due to ‘unforeseen financial difficulties’ which meant the business ‘ceased to trade’. Kaur lodged a claim for automatic unfair dismissal under regulation 7 of TUPE, believing that the sole reason for her dismissal was the transfer itself. The employer, meanwhile, argued that Kaur could be treated as resigned due to her objecting to the transfer in accordance with regulation 4 of TUPE. The ET heard two contrasting versions of events, with Kaur claiming she had simply raised concerns regarding a colleague who would be managing her going forward, whilst the employer claimed she had explicitly stated she did not wish to work for the new company. Ultimately the ET agreed that, on balance, they preferred Kaur’s version of events and deduced that the employer anticipated there may be a difficult working relationship between the employer and her colleague in the future and had dismissed on this basis. The employer appealed to the EAT, arguing that the reason for Kaur’s dismissal was personal, based on the poor working relationship, as opposed to being because of the TUPE transfer. Unsurprisingly, the EAT dismissed this appeal and agreed with the initial ET that the transfer was the principal reason for the dismissal. In making this decision they placed significant emphasis on the timing of the dismissal, coming two days before the proposed transfer, and how this was an indication of the employer’s ulterior motive. They also found, based on the facts, that both the transferee and the colleague who was set to be Kaur’s manager did not wish for her to transfer and this was the primary reason for the dismissal. This case reminds employers of the protections which staff are afforded under the TUPE regulations, specifically that they have the right to transfer over to the new employer with their role intact as long as they meet certain criteria. Employers cannot modify this procedure to simply pick which individuals they wish to take and the transferee will be responsible for managing any existing performance issues or workplace disputes once the transfer is completed. n
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Issue 46 | December 2018 / January 2019
| Professional in Payroll, Pensions and Reward |
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