There is still a bit of a “calm before the storm” feeling in relation to employment law reform under the Employment Rights Bill as we await the outcome of the first consultations on some of the proposed changes. There is other news though, and we cover in this month’s update some reminders of implementation dates for new Tribunal rules and the penalty for failure to abide by the Code of Practice on Dismissal and Re-engagement, as well as cases on TUPE and harassment.
See below this month’s articles…
Harassment and victimisation
In Carozzi v University of Hertfordshire, the EAT confirmed the legal position in relation to two issues that are common areas of debate in discrimination cases.
The Claimant in this case made complaints about harassment that related to comments made about her accent. She also made a claim of victimisation in relation to the University’s HR representative refusing to share notes of a meeting with her because she might then use them against the University in a discrimination claim.
The Tribunal dismissed her claims, finding that:
- Comments about her accent were not harassment because they had not been motivated by her race and were “all to do with the claimant's intelligibility or comprehensibility when communicating orally”. They were not the same as cases in which harassment has been found where an individual’s accent has been mocked.
- The refusal to provide a copy of the notes was not an act of victimisation because the HR representative would have done the same to an employee who she felt was preparing to bring any other type of Tribunal claim and it was not therefore linked to a threatened discrimination claim.
The EAT upheld the Claimant’s appeal, finding:
- For an act to amount to harassment on grounds of race, it must be “related to” race but need not be intentional or motivated by race. They cited the example of a colleague using a word that is offensive to people of a certain race because of its historical connotations. Even if the colleague did not know of those connotations, if those historical connotations related to race and the comment had the effect of offending the individual, then this could amount to harassment
- In relation to the victimisation claim, it was not relevant to consider what the HR representative would have done with an individual who had threatened a non-discrimination claim, the issue was whether the action (of withholding notes) was to a material degree influenced by the fact that the Claimant might make a complaint of discrimination
The Claimant’s claims were therefore remitted to a different Employment Tribunal for them to consider afresh.
Whilst this case dealt with a racial harassment case, its principles apply to all harassment claims. In particular, the lack of the requirement of a discriminatory motive in harassment cases is an important message that should be delivered by all employers currently training their employees in preventing sexual harassment.
TUPE – objection to the transfer
In London United Busways Ltd v Marchi the Employment Appeal Tribunal dealt with a not uncommon scenario, but one on which the law is not straightforward.
Under TUPE, employees cannot be forced to transfer their employment, but have limited options if they do not wish to do so:
- They can object to the transfer under Regulation 4(7) and if they do so, their employment contract is deemed to be terminated (but they are not treated as having been dismissed, so they cannot claim a redundancy payment)
- Under Regulation 4(9), where the transfer involves a substantial change in their working conditions to their material detriment, they can treat their employment contract as having been terminated and are treated as dismissed
- If their employer has committed a repudiatory breach of contract, TUPE does not prevent them from resigning and claiming constructive dismissal
In this case, the Claimant was a bus driver employed by LUB. He did not own a car and his place of work was a 15 minute walk from home. LUB lost the bus route to a different bus firm, Abellio. It was agreed that the Claimant was assigned to this bus route and that he was one of the drivers whose employment would transfer under TUPE to Abellio. He was given three options:
- Transfer to Abellio (which would involve a one hour journey each way to his place of work)
- Object to the transfer and be re-engaged by LUB on different terms (longer hours)
- Resign
The Claimant originally indicated that he objected to the transfer but said that he wished to be made redundant and would not accept employment by LUB on new terms. LUB explained that this was not an option open to him and that if he objected and did not wish to transfer, then his employment would end on the transfer date. After the transfer date, the Claimant maintained that he was still employed by LUB Ltd, sending them his fit notes. LUB refused to acknowledge that he was employed by LUB as he had objected to the transfer. Abellio communicated with the Claimant, but he refused to engage with them. Abellio terminated his employment.
In a Preliminary Hearing, the Tribunal found that LUB had dismissed the Claimant on the transfer date. LUB appealed.
The EAT dismissed the appeal and found that LUB had dismissed the Claimant on the transfer date and that liability for the dismissal therefore lay with LUB.
The EAT concluded that:
- Under Regulation 4(9), where the transfer involves a substantial change in their working conditions to their material detriment, the employee has the option to treat themselves as dismissed, but is not obliged to do so. If they exercise that option, then liability will fall on who the employer was at the time at which the employee exercised their Regulation 4(9) right
- If the employee objects to the transfer under Regulation 4(7) (as was deemed to have happened in this case), but in circumstances where the transfer involves a substantial change in their working conditions to their material detriment, the effect of that objection is that:
- The employment does not transfer to the transferee
- The employee is deemed to have been dismissed by the transferor (in this case LUB)
This case highlights the potential complexity of employee objections to TUPE transfer and the allocation of liability where an employee does not wish to transfer due to the changes inherent in the transfer. It is now clear that for an employee to be deemed to be dismissed by the transferor, where there are material changes in working conditions to their material detriment, the employee need not expressly cite those as the reasons for their objection. If, in such circumstances, they do object in any terms, they will be deemed to have been dismissed by the transferor.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
New Employment Tribunal Rules
New Employment Tribunal rules come into force on 6 January 2025.
The new rules are a “tidying-up” exercise, rather than substantive changes, but they do mean that the numbering of rules now changes.
Parties should therefore ensure that any applications made after 6 January 2025 reference the correct numbers in the new rules.
Code or Practice on Dismissal and Re-engagement
The Statutory Code of Practice on Dismissal and Re-engagement came into force on 18 July 2024.
Our update at the time is here.
A formal order will come into force on 20 January 2025 confirming that one of the consequences of a failure to follow the Code when going through a termination and re-engagement exercise is that if a Tribunal award is made for a failure to collectively consult about the terminations, the Tribunal can increase the award by up to 25% if the employer has unreasonably failed to follow the Code (or can reduce an award by up to 25% if an employee has unreasonably failed to follow the Code).
If you would like to discuss anything covered in this article, please get in touch with Laura Tracey, Employment Partner laura.tracey@freeths.co.uk