Employment Cases – a look back at 2024

By Harry Walker

Trainee Solicitor

18 December 2024

Insights News

As the end of 2024 draws near, TW’s Employment Team has reflected on 10 interesting employment law cases from the last 12 months. The cases contain important lessons on various different aspects of employment law which may prove useful to your business as we head into 2025.

Wilson v FCA – Flexible Working Requests

A senior manager brought a claim against the FCA for rejecting her flexible working request. The request was rejected on the basis that it would have a detrimental impact on the quality of her work and performance. Despite the manager arguing that she had previously performed well working remotely, the FCA had said working from home meant, “you will not attend face to face training sessions, departmental away days/meetings, and you will not be able to provide face to face training or coaching to team members or new joiners”. At the ET, the judge concluded that the FCA had not applied a blanket policy and “did seek to genuinely consider the individual merits of the application” and so the manager’s claim was dismissed. She was, however, awarded 1 weeks’ pay for the FCA’s failure to communicate the appeal outcome within the statutory timeframe. The lesson of assessing each request on its individual merits will be especially important with when the requirement for refusals to be “reasonable” is introduced by Employment Rights Bill

British Bung Manufacturing Company Ltd and another v Finn – Harassment  

An offensive comment by a colleague relating to an employee’s baldness led the employee  to bring a claim of harassment related to sex against their employer. The EAT upheld a decision of the ET that because baldness is more prevalent in men than it is in women, this comment did amount to harassment related to sex.

Thandi and others v Next Retail Ltd and another – Equal pay

3,540 female shop-floor staff brought a claim that Next were paying them less than the predominantly male warehouse staff. In 2023, an ET ruled that the work of the shop-floor staff was of equal value to that of the warehouse staff. At a subsequent hearing this year Next, in their defence, agued that their decision to pay the warehouse staff more was based on “market forces”. The ET did not accept this argument however, saying that Next were essentially just trying to cut costs in the interests of profitability which was not a legitimate reason for breaching equal pay legislation. Next have confirmed they will appeal this decision with it being reported that they may have to pay over £30 million in damages to the claimants.

This decision is not binding on future tribunals, however it might make employers think twice before paying particular divisions of their workforce less than others with a sole mind to profitability.

Adams v Edinburgh Rape Crisis Centre – Unfair Dismissal and Discrimination  

The crisis centre had a policy of employing female-only counsellors to work with victims. One such counsellor had recently announced that she now identified as non-binary and a victim queried with the claimant (another counsellor) whether the non-binary counsellor was male or female. In an email to her line manager the claimant, who held the belief that biological sex is immutable, asked if she should say that the counsellor was a “woman at birth who now identifies as non-binary”.

Following this email, the CEO of the centre labelled the claimant as transphobic and encouraged the counsellor to submit a grievance. A flawed disciplinary process began which actively sought evidence of the claimant’s transphobia beyond the issue at hand. Ultimately the claimant was not dismissed but later resigned over fears similar incidents would occur in the future.

The claimant was successful in her claims of constructive unfair dismissal and discrimination linked to her gender-critical beliefs. The ET’s judgment was damning, saying that labelling the claimant’s email as transphobic was “nonsense” and the investigation against her was a “heresy hunt”.

The ET found that the centre’s treatment of the claimant amounted to harassment as well as direct and indirect discrimination and the claimant was awarded £69,000 in damages. This case makes clear that gender-critical beliefs are protected under the Equality Act 2010 and employers should not discriminate against employees because they may hold them.

Jones v Vale Curtains and Blinds – Unfair Dismissal

An employee, attempting to forward a complaint email from a customer to a colleague, accidentally clicked “reply” and sent this message to the customer: “can you change this… he’s a tw*t so it doesn’t matter if you can’t”. Following a complaint from the customer and threats to go the press, the employee was dismissed. The customer was notified of the dismissal by the employee’s supervisor shortly thereafter.

Upholding the employee’s unfair dismissal claim, the ET criticised the fact that neither the customer nor the employee were interviewed and said the “disciplinary procedure and the dismissal were a sham designed to placate the customer”. This case underlines that disciplinary procedures should not have a pre-determined outcome and that a thorough and fair investigations needs to take place, even if serious misconduct is alleged.

Tesco Stores Ltd v USDAW – “Fire and re-hire”

In 2007 Tesco opened a number of new distribution centres but also closed down several sites. To incentivise employees working at the centres that were closing down to relocate, Tesco offered improved “retained pay”. In 2021 the supermarket no longer wished to offer this “retained pay” however, and threatened employees with termination and subsequent re-engagement on new terms (“fire and re-hire”). The High Court issued an injunction against Tesco to prevent them from doing this which was subsequently upheld by the Supreme Court. The Supreme Court ruled that because the “retained pay” clause was expressed as being “for as long as their employment in the same role continues” there was an implied term in the contract that prevented Tesco from dismissing employees because of this benefit. Contractual benefits offered with the intention of being permanent may therefore already render “fire and re-hire” impossible before the practice is significantly restricted under new proposals of the Labour government.

J Smith v Alpha Plus Group Ltd – Disability Discrimination

A teacher who suffered from anxiety and depression was dismissed as a result of a poor attendance record and behavioural issues (including falling asleep at school) caused by his mental health. The teacher subsequently brought a claim for discrimination arising from disability. The ET held that the school had acted disproportionately in dismissing the teacher as they had “jumped straight to the dismissal” and not properly followed their own Capability, Absence or Disciplinary policies. The teacher was awarded £168,000 in damages. Interestingly, the ET noted that the school had been reasonably sympathetic towards the teacher, as evidenced by the supportive WhatsApp messages between him and the deputy-head as well as the various reasonable adjustments they had made (e.g. allowing him to notify them that he would be off work at 8:00am instead of 7:30am). The issue was that a lot of these acts were done informally which highlights the importance of keeping an adequate paper trail of decisions and demonstrating compliance with your own policies and procedures.

De Bank Haycocks v ADP RPO – Unfair dismissal and redundancy

The Court of Appeal overturned the EAT’s surprising decision that small-scale redundancies involving fewer than 20 employees required “general workforce consultation”. Whilst it was unclear what exactly the EAT meant by this expression (presumably something akin to collective consultation), the Court of Appeal’s decision that this would be unworkable will come as a huge relief to many employers.

Taylors Service Ltd (dissolved) and another v The Commissioners for HM Revenue and Customs [2024] – National Minimum Wage Regulations

The EAT overruled an ET decision that the time spent by workers travelling to work was “time work” for NMW purposes. The case involved poultry workers who would often have to travel up to eight hours to reach their place of work. The ET’s decision was based on the fact the workers’ journey was not a “normal commute”, with the workers often having to set off in the middle of the night to make a morning shift. The EAT, however, held that on a proper construction of the NMW Regulations, whether the workers were engaged on a “normal commute” or not was irrelevant. What mattered was whether there was “work” to be done when travelling. As there was not, the workers were not entitled to the NMW when travelling notwithstanding their lengthy journey.

Mr C Sieberer v Apple Retail UK Ltd – Unfair dismissal

An Apple employee was dismissed for sexual harassment for taking two non-consensual photos of a female employee and sending them to colleagues. Considering the employee’s claim for unfair dismissal, the ET held that whilst Apple had had a fair reason for the dismissal (conduct), they did not have reasonable grounds for believing the employee was guilty of the alleged misconduct. This is because the legal definition of sexual harassment had not been made out as there was no evidence to show that the subject of the photos (who never found out about them) or any other employee were offended. The tribunal also considered that Apple had acted unreasonably in failing to seriously consider any mitigating circumstances such as the employee’s length of service and good record as well as the impact the dismissal would have on his life. This case offers a cautionary tale against being overzealous in dismissing employees for offences under the Equality Act 2010.

If you have any queries relating to the above, or any other employment law matters, please do not hesitate to contact us here.

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