In successful discrimination claims, one remedy available to a Tribunal is an appropriate recommendation. In this case of Hill v Lloyds Bank plc, the Employment Appeal Tribunal (EAT) has considered the scope of a recommendation sought by an employee.
In successful discrimination claims, one remedy available to a Tribunal is an appropriate recommendation which is:
“…a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate…” (section 124, Equality Act 2010).
If a respondent fails to comply with a recommendation without reasonable excuse, the Tribunal has the ability to increase the amount of compensation to be paid to the claimant (or, if no such order for compensation was originally made, to make one).
In the case of Hill v Lloyds Bank plc, the Employment Appeal Tribunal (EAT) has considered the scope of a recommendation sought by an employee.
Mrs Hill suffered from reactive depression which she asserted was due to bullying and harassment at work. This was held to amount to a disability within the meaning of the Equality Act 2010. Mrs Hill had brought a grievance against her line manager, alleging bullying and harassment; this grievance and her subsequent appeal were not upheld. She also had issues with her line manager’s manager but did not raise a formal grievance against him. Mrs Hill did not want to work for either of these two individuals, and they did not want to work with her.
On her return to work, Mrs Hill was based in Bristol; the two managers were based in Glasgow and London respectively. She did not in fact have to work with either of them. However, Mrs Hill remained anxious (or fearful) that at some point in the future she might have to work with one or both of them again. She sought an undertaking (a promise) from her employer that she would not have to work under their control again. It is unclear from the EAT’s judgment whether Mrs Hill sought to add financial “teeth” to this undertaking at this stage (see below), although the employer’s response to the request suggested that she did – the employer confirmed to her that although it would “make some efforts” to ensure that she did not have to work with the two individuals again, this could not be guaranteed for various reasons, and that redundancy or severance would not be offered as an alternative if she was required to work with them as Mrs Hill would not be redundant.
Mrs Hill issued Tribunal proceedings asserting that Lloyds Bank plc had failed to make reasonable adjustments by refusing to provide an undertaking. This undertaking was recorded in the list of issues as being an undertaking in writing that:
“[Lloyds Bank plc] would not rearrange duties or roles so that [Mrs Hill] has to work with or report to [either of the managers]; and In the event that business demands leave it with no practical alternative, it will offer [Mrs Hill] a redundancy/severance payment under the full terms applying to employees of [Mrs Hill’s] contractual status at the time of the offer of dismissal.”
The Tribunal upheld Mrs Hill’s claim. It determined that Lloyds Bank plc had a practice of not giving binding undertakings but only words of comfort, that this placed Mrs Hill at a substantial disadvantage (a state of fear) compared to others who had also made allegations of bullying but who were not disabled. The Tribunal declined to make a recommendation on the terms set out in the list of issues but chose to make one on different terms; however, following a reconsideration application, the recommendation was withdrawn all together. At the EAT, therefore, there was in fact no recommendation in place.
The EAT upheld the Tribunal’s findings in respect of liability. In respect of the issue of a recommendation, the EAT expressed a number of concerns in respect of the Tribunal’s initial recommendation. Although the EAT did not decide the terms of any recommendation (referring this issue back to the Tribunal to determine), it did state that it was “puzzled” as to why the Tribunal did not simply adopt the recommendations requested by the Claimant as this reflected precisely the reasonable adjustments that she was suggesting should be made; such a comment may well influence the Tribunal when the case returns.
But is this correct?
The EAT commented that it could not see any difficulty in principle with a requirement that a particular employee should be treated as redundant in certain circumstances. It also could not see any reasons why a recommendation could not have financial implications. Lastly, it appeared to accept that the purpose of this part of the undertaking was in effect to hold the employer to the basic principle that Mrs Hill should not be required to work with either of these individuals again – in the EAT’s words, it was to provide an “incentive” to the employer.
As mentioned above, the wording of the recommendation has not yet been determined but has been referred back to the Tribunal. The first part of the undertaking (a promise that Mrs Hill would not have to work with the two managers) would seem to alleviate the disadvantage claimed by Mrs Hill. And for many employers, this already would appear to be a significant step to require them to take – particularly in circumstances where the allegations against the two individuals were not upheld, and as no Tribunal claim was ever presented in respect of the bullying and harassment allegations, those allegations have never been independently considered by the Tribunal.
If the employer was to breach this undertaking, then as the EAT pointed out, Mrs Hill may have other remedies available to her – such as a constructive unfair dismissal claim. However, the second part of the requested undertaking goes much further than this – it attaches specific financial penalties to the employer’s breach; and those financial penalties (an amount equivalent to redundancy or severance pay) appear to simply be a method of calculation selected by Mrs Hill; she would not actually be redundant in these circumstances or otherwise entitled to this money. Is it reasonable for an employee to simply pick a method of compensation that would provide her with a sufficient degree of confidence that her employer would adhere to the first undertaking, or alternatively, a sufficient degree of compensation in the event that they did not? If so, at what point (if any) would the level of the figure claimed be so high so as to no longer be reasonable (in this case, Mrs Hill estimated the payment under the redundancy scheme to be in the region of £130,000)? And if an employer was to refuse to comply with the recommendation issued (i.e. it refused to provide the undertaking), would the compensation then awarded by the Tribunal under section 124(7) of the Equality Act 2010 be calculated by reference to the “penalty” figure included in the recommendation?
The recommendation issued, and the rationale for it, will make interesting reading when this case returns to the Tribunal.
The EAT did provide some comfort to employers suggesting that recommendations to provide undertakings would arise only in “suitable (perhaps rare) cases”. And it will not always be the case that a decision by an employer not to provide a requested undertaking will amount to a “practice” (as opposed to a one-off decision). However, the basic factual background to this case – an employee who remains unhappy with the outcome of internal grievance and appeals procedures – is not unusual. Where complainants are (or may be) disabled, employers will need to be mindful of the potential for reasonable adjustment claims and the wide-ranging recommendations that individuals may seek.
Official statistics show that 15,336 claims which included a complaint of age discrimination were received at the Employment Tribunals between March 2020 and March 2021.
The outcome of the Employment Tribunal claim brought by Gulnaz Raja against Starling Bank Limited (1) (Starling), and Matthew Newman (2) was reported last month.
In the Autumn Statement delivered on 17 November, rises to the National Living Wage and National Minimum Wage rates were announced, to take effect from 1 April 2023.
The World Cup kicks off in Qatar on Sunday 20 November 2022, with the final taking place on Sunday 18 December 2022. Undoubtedly, this is a huge sporting event, and many employees will be keen to show their support for their favourite teams. However, due to the time difference, start times for the matches are between 10 a.m. and 7 p.m. UK time, which could have an impact on employers if employees who wish to watch the matches are scheduled to work.
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship.
Where an employee appeals against their dismissal under a contractual appeal procedure and their appeal is successful, reinstatement to their previous role is automatic and does not require approval or agreement from the employee.
Settlement agreements in an employment context are ordinarily used to provide both parties with certainty following the conclusion of an employment relationship – but what happens when there is alleged discrimination after entering into a settlement agreement?
A few weeks ago we brought you news that following the Government’s mini-budget it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 would be scrapped from April 2023.
In Mogane v Bradford Teaching Hospitals NHS Foundation Trust the Employment Appeal Tribunal (EAT) considered whether it was fair to dismiss a nurse as redundant on the basis that that her fixed-term contract was due to expire before that of her colleague.
The majority of people do not feel the need to embellish their CV to get that coveted position and move on up the career ladder. Their worthiness and benefit to the hiring organisation are easily demonstrated through the recruitment process – application, psychometric testing, selection day or interview.
In July 2022, the Supreme Court handed down its long-awaited Judgement in the case of Harpur Trust v Brazel relating to the correct calculation of statutory holiday pay for part year workers. This decision has implications for all part year workers on contracts which subsist all year round, whether their hours are normal or irregular.
The Government has announced a change to the categorisation of “small” businesses to reduce the amount of regulatory compliance (or “red tape”) required. Currently, SMEs (those with fewer than 250 employees) are exempt from certain regulations – such as the obligation to comply with gender pay reporting. With effect from 3 October, these exemptions will be widened to apply to businesses with fewer than 500 employees.
In University of Dundee v Chakraborty, the Employment Appeal Tribunal (EAT) considered whether a first draft of a grievance report could retrospectively be deemed to be privileged.
The Chancellor’s recent mini-budget provided a significant announcement for business as it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 will be scrapped from April 2023.
The Government has published the Retained EU Revocation and Reform Bill which, if passed, provides for the revocation of all “EU-derived subordinate legislation” (i.e. UK statutory instruments which were introduced to implement EU law) and retained direct EU legislation on 31 December 2023, unless legislation is specifically introduced to save them.
On 20 July 2022, the Supreme Court issued its long-awaited judgment in the case of Harpur Trust v Brazel, upholding the decision of the Court of Appeal. For those of you familiar with this case, you will know that it concerns the statutory leave requirements for part-time and part-year workers. For schools and academies whose workforce consists of a variety of types of part-time and part-year workers, this case is one that must be understood before any changes are applied. Come and join Emma Hughes, Head of HR Services as she puts questions to Ian Deakin, Employment Partner, and Sarah Linden, Senior Associate.
The Employment Appeal Tribunal’s recent decision in the case of Mr Michael Cowie & Others v Scottish Fire and Rescue Service provides a useful insight into favourable - or unfavourable - treatment in the context of discrimination claims.
This month, HM Treasury issued a consultation on Administrative Control Process for Public Sector Exits with draft guidance. They’re proposing to introduce an expanded approvals process for employee exits and special severance payments, and additional reporting requirements. If approved, the proposals will impact public sector bodies and those that do not have a specific right to make exit payments.
In Wierowska v HC-One Oval Limited, the Employment Tribunal had to determine whether the Claimant’s beliefs in relation to Covid-19 vaccines amounted to religious beliefs for the purposes of the Equality Act 2010.
Janice Walsh applied for a job with Domino’s Pizza, hoping to secure a role as a Delivery Driver. However things quickly took a turn for the worse during her initial interview, with the very first question that she was asked relating to her age. Ms Walsh was ultimately informed that she had not been successful in her application.
As of 21 July, two separate pieces of legislation came into force which seeks to mitigate against strike action. It should come as no surprise that this is a direct response to the rail strikes, which have dominated the news in the last couple of months.
The Government has referred to the greater “clarity” provided by the Supreme Court’s decision in Uber BV and others v Aslam and others, considering it appropriate to allow the impact of this decision to take effect, before considering further intervention.
The Supreme Court has now issued its long-awaited judgment in the case of Harpur Trust v Brazel, upholding the decision of the Court of Appeal.
The new sponsored Global Mobility route aims to meet the needs of overseas businesses with no previous trading presence in the UK to expand into the UK by providing a specific immigration route for senior employees to come here to set up a UK subsidiary or branch.
