This month, we have a few interesting cases and a couple of other snippets from the employment world.
CASES UPDATE
Alexis v Westminster Drug Project [2024] EAT 188
The Employment Appeal Tribunal (EAT) had to decide whether length of service and alternatives to dismissal were relevant factors where dismissal was due to an irretrievable breakdown in the relationship between the employer and the employee. The EAT held that they weren’t relevant when trust had already broken down. The dismissal was therefore fair, as it was based on some other substantial reason (ie the employer’s reasonable belief that trust and confidence had irretrievably broken down between the parties) and the employer had followed a fair process.
London United Busways Ltd v De Marchi [2024] EAT 191
Was an employment tribunal right to find that an employee who objected to a TUPE transfer involving a detrimental change in his working conditions was dismissed by the transferor? The EAT held that the tribunal was right but for different reasons. This was a question of statutory interpretation, which centred on the interplay between these Regulations of TUPE:
- Regulation 4(7) – the right to object to a transfer
- Regulation 4(8) – an objecting employee is not to be treated as having been dismissed by the transferor
- Regulation 4(9) – the right to treat employment as having been terminated by the employer when there is a substantial change in working conditions to the material detriment of the employee. Regulation 4(8) is subject to Regulation 4(9).
The EAT held that the employee was entitled to treat his contract as having been terminated. He elected to exercise this right and was treated as being dismissed by the employer. Since the date of the election was pre-transfer, his employer was the transferor so he was treated as being dismissed by the transferor. The effect of his objection was to prevent the transfer of his contract and any associated rights and obligations to the transferee. Any remedies that he had therefore lay with the transferor and he had no remedy against the transferee.
While the main issue in this case centred on charity trustees, a second issue will be of interest to all employers. Is a worker protected from being subjected to a detriment by their employer for making a protected disclosure to that employer before their employment starts? The EAT held that a worker does have this protection, as long as they become employed by that employer. The position would be different for an individual who does not become a worker or employee of that employer, who would not have the same protection.
OTHER DEVELOPMENTS
- Employment tribunal (ET) statistics – the latest quarterly statistics were published on 12 December 2024 and covered the period from July to September 2024. In that period the ET received 24,000 claims (10,000 single claims and 14,000 multiple claims). Single receipts increased by 19% compared to the same period a year earlier. At the end of September there were 461,000 open cases, of which 40,000 were single claim cases. The Government has estimated that the Employment Rights Bill could result in an increase in claims of around 15%
- Spring Statement 2025 – the Chancellor has confirmed that the Spring Statement will be presented to Parliament on 26 March.