Employment tribunal and court judgments | November 2023

Omar v Epping Forest District Citizens Advice

Where an employee resigns "in the heat of the moment", the question is whether it would have appeared to a reasonable employer in all the circumstances that the claimant "really intended" to resign.

Background

The claimant had resigned from his employment with the respondent "in the heat of the moment" during an altercation with his line manager

In a subsequent conversation on the same day, it had been recognised by his employer that he wished to continue in employment, but his line manager decided she no longer wanted to work with him, so his resignation would still stand. The claimant sought formally to retract his resignation, but this was not accepted, and his employment was terminated on one month's notice.

The claimant's case was that in law he had not resigned as the situation fell within the so-called "special circumstances exception". He argued he had been unfairly and wrongfully dismissed.

Employment Tribunal decision

The Employment Tribunal ("the Tribunal") considered that there were not any circumstances in this case which took the claimant's resignation out of the general rule such that his resignation was not to be taken as valid.

The Tribunal found that the claimant had resigned and dismissed the claim.

Employment Appeal Tribunal decision

The Employment Appeal Tribunal ("the Appeal Tribunal") found that the Tribunal had erred in law by failing to make adequate findings of fact and to direct itself properly in accordance with applicable legal principles.

Whilst there is no such thing as the special circumstances exception, the Tribunal should have applied an objective test to determine whether it would have appeared to a reasonable employer at the time the words were uttered whether the claimant "really intended" to resign. The law does not allow for a "change of heart" so it only if the resignation was not "really intended" that it will not be effective, the subjective intention of the employee is not relevant, but the subjective understanding of the employer's understanding was relevant but not determinative.

The Appeal Tribunal directed that the case be remitted to a fresh tribunal to make the necessary findings of fact to determine whether the claimant "did not really intend to resign" or "intended to resign but changed his mind".

MXX v A Secondary School

School not vicariously liable for student on work experience placement

Background

The claimant was a 13-year-old pupil at the respondent secondary school (the School).

One of the School's former pupils ("PXM") was attending college and hoped to qualify as a PE teacher, so undertook a one-week work experience placement at the School. During this placement, PXM met the claimant and began grooming her.

After the placement had ended, PXM began communicating with the claimant on social media. A few months later, PXM committed assault and battery offences against the claimant.

The claimant brought a personal injury claim against the School on the basis that they were vicariously liable for the torts committed by PXM.

High Court decision

The High Court held that the School was not vicariously liable on the basis that:

1. There was not a relationship akin to employment over a one-week work experience placement between the School and PXM and it was not fair, just and reasonable to impose vicarious liability on the School.
2. There was not a sufficiently close connection between PXM and the School (as the most that could be said about the relationship between the School and PXM was that it provided an opportunity for PXM to meet the claimant), and the wrongdoing perpetrated against the claimant.

Court of Appeal decision

The claimant appealed. However, the Court of Appeal dismissed the appeal.

The Court of Appeal found that the relationship between the School and PXM was akin to employment. The reasons for this included:

• PXM took responsibility for some of the work of the PE department.
• The tasks he carried out were for the benefit of the School and the pupils.
• Work experience placements provided generic benefits to organisations in respect of recruitment.
• PXM accepted the School's safeguarding policy and therefore the School was regulating that relationship similarly to the way they would with their employees.
• The supervision of PXM by the school demonstrated close direction and control which was suggestive of an employment relationship.

However, given the limited nature of PXM's role during the placement, and that it was not until PXM left the School that any communications took place on social media and such communication was specifically prohibited by the School, the facts did not satisfy the close connection test. The grooming which led to the torts committed was not inextricably woven with the carrying out of PXM's work during the placement.

Whilst the Court of Appeal agreed with the High Court that the school in this case was not vicariously liable for the torts committed by the work experience placement, employers should note that this relationship may be considered "akin to employment". Under different factual circumstances, vicarious liability may follow.

Steel v Spencer Road LLP

Bonus clawback provisions in an employment contract not a restraint of trade

Background

The claimant was employed by a global executive search firm. Under the terms of his employment contract, he received a basic annual salary of £65,000 plus an annual discretionary bonus.

The bonus was conditional on the claimant remaining in the respondent's employment for three months from the date of payment of any bonus, and not having given or been given notice to terminate his employment during that period.

The claimant received substantial bonus payments every year from 2016 to 2021. In January 2022 he was paid a bonus of £187,500. He gave his notice to terminate his employment in February 2022.

The respondent sought repayment of the January 2022 bonus payment and associated legal fees via a statutory demand.

The claimant applied to the court to set aside the statutory demand on the basis that the bonus clawback provisions were an unreasonable restraint of trade or penalty clauses and were therefore unenforceable. His application was dismissed so he pursued a High Court Appeal.

High Court Appeal decision

The High Court dismissed the appeal and found that the bonus clawback provisions did not constitute a restraint of trade.

Whilst an employee bonus or commission scheme conditional on the employee remaining in employment for a specific period of time acts as a disincentive to that employee resigning, that does not turn that provision into a restraint of trade.

The claimant had not sought to challenge other provisions in the employment contract, and the other post-termination restrictive covenants did not have any bearing on the interpretation of the bonus clawback provisions.

Independent Workers Union of Great Britain v Central Arbitration Committee

Deliveroo riders not in an employment relationship with Deliveroo for the purposes of TULR(C)A 1992 due to permitted use of substitutes

Background

The claimant was an independent trade union ("the Union") whose members included Deliveroo Riders. The respondent ("the CAC") operated the Deliveroo food and drinks delivery service.

The Union made a formal request to Deliveroo, and then to the CAC,  to recognise the Union for collective bargaining in respect of a group of Deliveroo riders.

The CAC refused to accept the Union's application on the basis that the workers were not "workers" within the meaning of Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992. This was because Deliveroo did not require them to provide delivery services personally but permitted the use of substitutes.

The Union brought a claim for judicial review of the CAC's decision in the High Court and then the Court of Appeal however both dismissed the claim. The Union appealed to the Supreme Court. The appeal was only permitted on the ground that refusing to recognise the Union would breach Article 11 of the European Convention on Human Rights (ECHR) which protects freedom of peaceful assembly and association.

Supreme Court decision

Whether Article 11 in its trade union freedom aspect was "applicable" to the case was  dependent on the existence of an employment relationship. The concept of an employment relationship for the purposes of Article 11 did not depend on the definition of workers or employees we use in domestic law, instead, the  question  was answered by reference to the criteria identified in  the International Labour Organisation Employment Relationship Recommendation, 2006 No 198 ("ILO").

Paragraph 13 of ILO referred to the fact that the work must be "carried out personally by the worker" as an indicator of an employment relationship. The absence of such an obligation must be a contra-indicator of worker status. Secondly, the Deliveroo riders were free to work, or not, as convenient to them, without their contracts being terminated. Thirdly, Deliveroo did not object to riders working simultaneously for Deliveroo's competitors.

The Supreme Court agreed with the CAC that the fact that the Deliveroo riders were, genuinely, not under an obligation to provide their services personally and had a virtually unlimited right of substitute was a material factor in the decision whether they were in an employment relationship with Deliveroo. An obligation of personal service (subject to limited qualifications) is a central feature of the relationship of employer and worker.

The Supreme Court unanimously held that the riders did not fall within the scope of the trade union freedom right under Article 11 as they were not in an employment relationship with Deliveroo, and the appeal was dismissed.

This case is fact specific and the Supreme Court's ruling does not mean that other gig economy businesses may not be subjected to collective bargaining being imposed by the CAC.