Employment Law Bulletin - April 2022

• The dangers of threatening violence calling a man bald
• Employment Tribunal Reforms
• Reasonable Adjustments
• New Presidential Guidance on Oral Evidence from Individuals Abroad
• New Financial Conduct Authority Policy Statement – Diversity and Inclusion
• Can a Claim Be Struck Out at a Closed Preliminary Hearing?

Welcome to April’s Employment news briefing, providing a summary of some of the recent employment judgements and updates.

If you have any questions about any of the topics covered, or would like to discuss anything with our Employment team, please call Martin Stephen on 0141 248 3434 or email mss@wjm.co.uk

 

The dangers of threatening violence calling a man bald

In the recent case of Finn v British Bung Manufacturing the ET found that Mr Finn had made a public interest disclosure of threatened violence and had been victimised when called bald in pejorative terms. It found he had conveyed information to his employer of sufficient factual content and specificity to meet the relevant tests. Specific details of the graphic industrial language can be found here https://www.gov.uk/employment-tribunal-decisions/mr-a-finn-v-the-british-bung-manufacturing-company-ltd-and-mr-j-king-1803764-slash-2021

This case serves as a reminded that male to male banter can be dangerous and result in expensive claims.

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Employment Tribunal Reforms

The HMCTS Reform Employment Tribunal Project has produced a FAQ document, designed to help tribunal users navigate the reform. This will be a moving document and continually updated as the project moves forward.
The document explains the aims of the project, and includes the development of a new digital system that will be in

place – an online portal where representatives can check the status of a case, respond to a claim and make applications relating to such. Whilst the new online portal is not quite open for everyone yet, those in Leeds or Glasgow have access to the first release.

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Reasonable Adjustments

Knightley v Chelsea & Westminster Hospital NHS Trust held that if an employer dismisses a disabled employee, but fails to make a reasonable adjustment during that process, it will not render the dismissal unfair.

In this case, the disabled Claimant had been dismissed following a capability procedure. The employer denied her an extension of time to appeal against dismissal. The Claimant appealed on several grounds, including that the dismissal ought to have been held to be unfair given the failure to make a reasonable adjustment and that the dismissal should have been held to be a breach of S.15 Equality Act.

The EAT noted that the fact that an employer might fail on one claim, does not mean that it will fail the others. What matters here is the conclusions that are drawn under each test from the findings of facts. Here, the conclusion on the reasonable adjustment claim did not depend on the merits of the case for dismissal or the dismissal itself, or whether the appeal would have made any difference to the outcome.

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New Presidential Guidance on Oral Evidence from Individuals Abroad

Following the Agbabiaka case, taking oral or video evidence from abroad requires permission from the foreign state. You should now seek to provide the Employment Tribunal with details as soon as possible to allow the Tribunal to contact an office at the Foreign, Commonwealth and Development Office to confirm permission.

Permission may be granted through prior knowledge of the state’s position on such matters. However, in other cases, it may require the FCDO office to make inquiries at the embassy which can be time-consuming.

If, in a particular case permission is taking too long which may compromise the trial date, the tribunal can look at ways around seeking permission e.g. whether evidence can instead be in writing, the person can travel to the UK to give evidence or if someone else is able to give the evidence instead.

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New Financial Conduct Authority Policy Statement – Diversity and Inclusion

Mid-April 2022 saw the publication of the Financial Conduct Authority’s statement on increasing diversity and inclusion on company boards and executive management in the financial services sector. In effect, the FCA will be introducing new rules to require issuers to include in their financial report a statement of whether they have met specific board diversity targets, and will be put on a “comply of explain” basis.

Whilst these targets are not legal obligations, they are designed to shine a light to the public on organisations who do not meet such targets.

The targets are:
• at least 40% of the board should be women;
• at least one of the senior board positions should be a woman; and
• at least one member of the board should be from an ethnic minority background.

Companies can report on the basis of either sex or gender identity, provided this approach is used consistently and explained adequately.

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Can a Claim Be Struck Out at a Closed Preliminary Hearing?

The answer is no. This was held by the Employment Appeals Tribunal in Mendy v Motorola Solutions UK Ltd, which overturned a case management decision that had the effect of striking out the Claimant’s indirect discrimination claim.

At a closed preliminary hearing, the Employment Judge had overlooked an indirect discrimination claim and proceeded to make a case management order under Rule 39, that there was no discernible indirect discrimination in the case.

This effectively had the inadvertent effect of striking out the Claimant’s indirect discrimination claim. The order was later revoked.

The EAT upheld the Claimant’s appeal, noting that the effect of the case management order had to be determined objectively. The order was akin to a judgment, as it was effectively a strike out under Rule 53(1)(c). As it had been made at a closed preliminary hearing in breach of Rule 56, and without following Rule 37(2) (providing for a reasonable opportunity to make written representations and/or have an open preliminary hearing), it was effectively wrong in law.

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