Employment Law Bulletin August 2022

• Qualifying Period in Unfair Dismissal
• Mental Health Tribunal – Disabled Woman Refused Petition
• Orkney Death could have been avoidable
• Civil Procedure Orders

Welcome to August'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

Qualifying Period in Unfair Dismissal

The case of Scottish Federation of Housing Assocations v Jones held that the exception to the two years’ qualifying period in S108(4) of the Employment Rights Act 1996 does not extend to cover a dismissal relating to a political neutrality clause.

The Claimant in this case worked as the Head of Membership and Policy. Her contract contained a political activity clause that did not prevent her being a member of a political party, but did preclude her from undertaking a formal role in such.

She requested permission to stand as a candidate for Scottish Labour in the 2019 General Election. Such permission was refused and she withdrew her candidacy. Subsequently, the Claimant was dismissed, various reasons for such were cited but the Respondent did not rely on her request for permission to stand in election.

The Claimant brought claims for belief discrimination and unfair dismissal, but did not have the required two year’s qualifying service for her dismissal claim. She argued that S108(4) of the 1996 applied and that she did not need two years’ service as the reason for her dismissal related to her political opinions or affiliations. The Employment tribunal accepted her arguements.

The Employment Appeal Tribunal disagreed. The EAT said that S108(4) was clear that it related to dismissals for political opinions and the Claimant accepted that she was not dismissed for her affiliation to Scottish Labour. However, the EAT did in fact agree with the tribunal that the Claimant’s belief in participatory democracy was a protected belief.

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Mental Health Tribunal – Disabled Woman Refused Petition

The Claimant challenged a policy under which her application to join the Mental Health Tribunal could not be progressed unless she was able to commit to two days of tribunal work per month. It was argued that this policy was unreasonable as she would lose her entitlement to Employment Support Allowance if she worked for more than one day a month. However, the petition was dismissed.

In his judgment, Lord Ericht stated: “The distinction between the members of English/UK and Scottish tribunals is one which may be difficult to justify. ESA applies throughout the UK, and it is difficult to see why a member of an English or UK Tribunal should be entitled to an exemption for one day’s (or two half day’s) work but a member of the equivalent Scottish tribunal should not be.”

He concluded: “It is not the case, as the petitioner contends, that ESA is available when sitting as a member of the MHTS for one day but is lost by sitting for a second day. Entitlement to ESA for the week is lost by sitting as a member for just one day. Sitting for a second or further days that week makes no difference: ESA is already lost. That misconception is the foundation for all the challenges to the two days policy, whether they are formulated as Wednesbury unreasonableness or statutory breaches. That misconception goes to the heart of all the remedies which the petitioner seeks.”

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Orkney Death could have been avoidable

An employee of Orkney Islands Council for 24 years recently died instantaneously as a result of being run over by a tipper lorry whilst operating a leaf blower as part of road maintenance work.

The driver of the tipper lorry had been instructed to reverse down the A976, where the deceased was working, in order to unload his lorry. The driver did not expect to encounter any other person on the road as it had been closed for road maintenance. Unfortunately, he did not see Mr Johnston, the employee, in his reversing camera and he was subsequently run over. The injuries sustained were fatal.

It was later confirmed that no discussion had taken place of the potential risks of the work being carried out beforehand. As a result, the Orkney Islands Council has now made a number of changes to its road maintenance and repair procedures. It was agreed that this accident could have been avoided with better planning and supervision.

Mr Johnston could not hear the reversing lorry due to the sound of the leaf blower and his ear defenders. It was suggested that perhaps a better way that could have avoided this accident was to have an individual tasked with the responsibility of guiding the reversing lorries along the road.

Since the procedural changes were made, Sheriff Sinclair confirmed that he was satisfied that appropriate steps have now been taken to ensure that a proper and appropriate safe system of work is in place.

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Civil Procedure Orders

The EAT recently held in Williamson v The Bishop of London & ors that permission to issue employment tribunal proceedings cannot be given retrospectively to a Claimant who is subject to a Civil Procedure Order.

In this case, the Claimant was subject to a CPO which required him to obtain permission from the High Court before he could commence civil proceedings. However, he brought a claim forward for age discrimination in the tribunal before obtaining such permission.

The CPO that was made by the High Court only gave the Claimant permission to pursue the existing claim and, in the alternative, gave permission to issue proceedings in the tribunal.

The tribunal, as such, held that the proceedings that had already commenced in the tribunal were a nullity. The Order had no effect as it was not possible to give retrospective permission under a CPO. The EAT agreed, citing AG v Edwards as a persuasive authority here.

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