Top Fortnightly Facts

With the Bank of England warning that we are heading into the longest recession in a century, ‘big picture’ economic problems continue to dominate the headlines - strike action, business closures, soaring unemployment figures, and an increase in the number of individuals struggling to deal with the cost-of-living crisis. In the meantime, ‘day-day’ employment issues obviously continue, and in this week’s feature, we take a look at two Employment Appeal Tribunal Judgments which provide some useful learning points for employers.?

1.????Dismissal ‘vanished’ following successful appeal - Marangakis v Iceland Food Ltd

In this case, the EAT decided that an employee who pursues a successful appeal against their dismissal is to be treated as having never been dismissed, unless they unequivocally withdraw their appeal before an outcome is delivered. ?

The Claimant, a part-time Sales Assistant, was dismissed for gross misconduct by Iceland on 24 January 2019. She appealed by email on 7 February 2019, indicating that she wished to be reinstated to her role.

She attended an appeal hearing on 22 March, which was postponed so that further investigations could take place. Then, after receiving documents obtained through a Subject Access request, the Claimant sent an email in which she challenged the disciplinary process. She stated that she no longer wished to be reinstated because she believed that mutual trust had broken down. The Claimant did however attend a reconvened appeal hearing on 27 March, albeit during the meeting she reiterated that she did not want to work for Iceland.

In spite of the Claimant's comments about not wanting to work for Iceland anymore, on 10 April, the business informed the Claimant that her appeal had been allowed and that she was to be reinstated with continuity of service and backpay. A final written warning was substituted for the original decision to dismiss. When the Claimant subsequently failed to turn up for her next shift, Iceland dismissed her for failing to attend work.

The Claimant went on to bring a claim of unfair dismissal, relying on the original dismissal on 24 January. Iceland argued that the effect of allowing the appeal was that the original dismissal ‘vanished’ and so it could not form the basis of an unfair dismissal claim.

Employment Tribunal decision

The employment tribunal found in favour of Iceland and dismissed the Claimant's claim.

The Judge relied on an earlier Court of Appeal Judgment (Folkestone Nursing Home Ltd v Patel) as authority for the proposition that an employee can only ‘escape’ the consequences of a successful appeal if he or she withdraws the appeal, and that dismissal vanishes upon reinstatement, regardless of the motives or intention of the employee.

The Claimant appealed to the EAT, arguing that she had made it clear that she no longer wished to work for Iceland prior to the appeal being decided. ?

EAT decision

The EAT dismissed the appeal and found in favour of Iceland. In doing so, the EAT noted that the Claimant did not unequivocally withdraw her appeal (for example by using the words ‘I withdraw my appeal’).?She also continued with the appeal process, attending a further appeal meeting. ?

So what?

In practice, reinstatement is relatively rare - reserved ordinarily for cases where there are clear gaps in evidence (and in turn, in the rationale of the disciplinary chair).

However, this case serves as a useful reminder to employers to: -

1)???Ask individuals, at the start of an appeal process, what outcome they are seeking, and if they are not seeking reinstatement, ask them to explain why this is the case. This may tease out evidence of an individual acting unreasonably in refusing to entertain the idea of reinstatement, which – if the matter progressed to a hearing - could go towards showing that the individual failed to mitigate their loss of earnings post-dismissal.

2)???Where you do reinstate someone on appeal, you will need to consider substituting the dismissal with the most appropriate sanction (for example, a final written warning). You will also need to process backpay between the date of dismissal and the date on which they ‘re-start’ working, and ensure continuity of service is recorded as the original start date and not the date on which the individual was reinstated.

2.????Legal privilege - University of Dundee v Chakraborty

In this case, the EAT held that legal advice privilege could not be applied retrospectively to the original version of a grievance investigation report where it had been amended afterwards by the Respondent’s legal advisors.

The Claimant was employed by the University of Dundee.?He raised a grievance against his line manager under the University’s Dignity at Work Policy. His grievance included allegations of bullying, harassment, discrimination, racial abuse and a suggestion that his line manager had falsely accused him of fraud. One of his colleagues, a professor, was appointed to investigate the grievance.

Before the grievance report was produced, the Claimant presented his claim to the Employment Tribunal.?

The professor produced her report and the following day, the University asked external solicitors to review the report. The amendments were discussed with the professor and were approved by her.?Importantly, the professor also made amendments of her own to the report at this stage.

The revised version of the report was added to the joint bundle for the tribunal hearing.?The revised version of the report included an annotation reading “The report was amended and reissued on 23.06.2022 following independent legal advice.” On noticing this, the Claimant applied for an order requiring the University to produce the original version of the report.

The University resisted the application on the basis that the original report was protected by legal advice privilege. Legal advice privilege?protects communications between a lawyer and client that are made for the sole or dominant purpose of giving or receiving of legal advice. The University argued that production of the un-amended version would enable the Claimant to make a comparison between the two versions and draw an inference about the legal advice that had been given to the University.?

The employment tribunal did not accept this, and so the university appealed the EAT.

The EAT’s decision

The EAT also held that the original version of the report was not protected by privilege. The EAT noted that the original version of the report had been created in response to Mr Chakraborty’s grievance and so at that point, was not protected by either legal advice privilege or litigation privilege.?The EAT also concluded that it was difficult to see how the Claimant could infer what legal advice had been given simply from a comparison of the two versions, as the investigator had also made her own amendments to the report before it was finalised.

So what?

This case serves as a useful reminder that where a document is created as part of an internal investigation, then privilege may not apply – in other words, the document may be disclosable in a future dispute.

To have the best chance of benefiting from legal advice privilege, employers should seek legal advice from a solicitor on the content of any investigation report prior to its creation (i.e., at the planning / scoping stage), and at the time the first draft (and any subsequent draft) is being prepared.

More generally, you should ensure that any communication sent to lawyers is sent with the intention of obtaining legal advice on a certain matter (and that you do not for example simply copy your advisers into ongoing internal correspondence between managers and HR).

Quick fire points

Protection for pregnant employees and new parents

On 21 October 2022 the government backed new legislation to provide greater protection to pregnant women and new parents. Currently, under Regulation 10 of the Maternity and Paternity Leave Regulations 1999, a woman on maternity leave whose job is being made redundant, is entitled to be offered alternative employment in any suitable vacancy available that offers work appropriate for her and terms not substantially worse than her previous job. Other regulations extend similar protections to those on adoption leave and shared parental leave.

The Pregnancy and Maternity Discrimination Bill will enable this redundancy protection to be extended, so it applies to pregnant women as well as new parents returning to work from a relevant form of leave, for a period of 18 months. It follows a government?consultation?on these proposals which found evidence of new parents facing prejudice in the workplace, with an estimated 54,000 women a year feeling they have to leave their jobs due to pregnancy or maternity discrimination.

New online service helping employers support disabled people

A new online service providing employers with the tools they need to encourage and empower disabled employees and those with health conditions has been launched.?Support with employee health and disability?is aimed at smaller businesses and provides advice on how to manage staff with a disability or long-term health condition. Helpfully the guidance signposts employers to where they can obtain ‘condition specific’ information and support (e.g. Autism Alliance UK).

World Cup 2022

Kicking off on Sunday 20 November, the tournament has the potential to boost staff morale and create some healthy workplace banter. Employers should however consider taking positive steps to remind employees that communication / behaviour which has the effect or purpose of creating a hostile, degrading, or intimidating environment will not be tolerated and will lead to disciplinary action and in some cases, summary dismissal.

Extra bank holiday in 2023

The government has announced an extra bank holiday to mark the coronation of King Charles III next year. It will fall on Monday 8 May 2023, two days after the coronation on Saturday 6 May 2023. Whether or not employees are entitled to this additional bank holiday will depend on the wording of their employment contracts, and – where there is no contract / provision in the contract - on the discretion of the employer. As always, discretion should be exercised reasonably and with any historic treatment of bank holidays in mind (e.g. in relation to the Queen’s Jubilee and funeral this year).?