Employment tribunal and court judgments | February 2023

McAllister v Commissioners of HMRC – Discrimination arising from disability

The Claimant was employed by HMRC. He suffered from anxiety and depression and was absent from work for long periods. His absence was found to have impacted on staff productivity and morale. He was dismissed by HMRC on grounds of capability.

The Civil Service Compensation Scheme provides compensation payments for disabled employees when their employment has been terminated. In the Claimant's case, he did receive an award, but it was reduced to 50% of the maximum because it was found that his general behaviour had been disruptive. Following an internal appeal, the Claimant's award was increased to 80%.

The Claimant brought a claim for discrimination arising from disability. He claimed that his compensatory sum was unfairly reduced under the Civil Service Compensation Scheme, amounting to unfavourable treatment. The Employment Tribunal upheld his claim on the basis that a 50% reduction to the compensatory sum was disproportionate.  

The Claimant also claimed that his dismissal had been discriminatory, however, the Employment Tribunal rejected this claim on the basis that HMRC could objectively justify the dismissal as a proportionate means of achieving the legitimate aim of ensuring satisfactory attendance at work.

HMRC appealed against the finding of discrimination in relation to the reduction of 50% to the Claimant's compensatory sum. The appeal was upheld on the basis that the original tribunal had separated (i) the entitlement to the award, from (ii) the calculation of the award. The Claimant was entitled to a payment on dismissal, which was caused by disability-related absences. It was not ‘unfavourable’ treatment for the Claimant to have received the payment. If anything, it was more favourable. The fact of a disability-related reduction to the calculation of the payment did not alter that fact.

A case of discrimination arising from disability relies on an assessment of whether unfavourable treatment has taken place because of "something arising in consequence of disability". In a case where an employee is entitled to objectively favourable treatment (here a payment of money) because of their disability, there can be no unfavourable treatment as a result of a disability-related amendment to that objectively favourable treatment.

Hawkes v Oxford Economics Ltd – Missing the deadline for appeals

The Employment Appeal Tribunal (the EAT) granted an appellant's late notice of appeal.

On the last day to present an appeal, Mr Hawkes sent an appeal via a series of emails between 15:33 and 16:00. Mr Hawkes assumed these emails had been delivered. He had not received any bounce back email informing him of any error or delay.

Ten days later, Mr Hawkes received a letter from the EAT stating that it had not received any notice of appeal and he resubmitted his appeal, but it was rejected by the registrar.

Following Mr Hawkes' appeal against this decision, the EAT overturned the original rejection. It held that the lack of a bounce back email could amount to a good reason for the delay in filing the notice of appeal. The appeal judge observed that it is reasonable to assume that an email which has been properly sent will be received by the addressee in a matter of seconds. The appeal was allowed.

This case demonstrates the EAT's leniency for practical modern-day issues that can arise when using technology to deliver court documents. However, the tribunal system remains generally stringent regarding deadlines and extreme care should be taken when dealing with formal deadlines and case management orders.

FKJ v RVT – Expectation of privacy of Whatsapp messages

The Claimant brought a claim of sexual harassment, sex discrimination and wrongful and unfair dismissal against her former employers after she was dismissed for gross misconduct.

The Claimant's claim in the Employment Tribunal was unsuccessful. Much of the evidence being relied upon in the case consisted of some 18,000 of the ex-employee's own WhatsApp messages, which included messages of an intimate nature between her and her husband, and her best friend. The Respondent stated that it had obtained the messages via a laptop restoration, and via post from anonymous sources.

As a result of the use of her WhatsApp messages, the Claimant chose to bring High Court proceedings on the basis of misuse of her private information. This case had unusual facts, but made some interesting findings about the privacy of WhatsApp messages.

Whether there is a legitimate expectation of privacy surrounding WhatsApp will always be fact sensitive. Factors to consider would include:

• The status of the sender and the recipient.
• The nature of the message and how they came to be in the possession of the user.
• Whether WhatsApp messages are routinely used for communication in the particular workplace.

In this case a number of helpful observations were made. It was held that there was no doubt that the messages involved a legitimate expectation of privacy due to their private and intimate nature, and the fact that they were sent externally to the Claimant's husband (including several years’ worth of day-to-day information about her professional, social and private life, including about her health and sex life).

It was also held that the existence of the material on a work laptop did not change the expectation of privacy.

Employers should consider whether an individual has a reasonable expectation of privacy over a WhatsApp message when considering using it in internal proceedings or litigation. For certainty, employers should consider setting out in the relevant policy whether employees have a reasonable expectation of privacy over messages on work devices.