The year 2023 saw several key employment cases that have significant implications for both employers and employees. These cases touch upon important topics such as backdated holiday pay claims, menopause and disability discrimination, and fair disciplinary processes.

In this article, we will explore the details of these cases and the legal precedents they have established. Understanding these cases is crucial for both employers and employees to ensure compliance with employment laws and promote fairness in the workplace.

Backdated holiday pay claims

In Chief Constable of Northern Ireland Police v Agnew, the Supreme Court unanimously confirmed that neither a gap of more than three months between unlawful deductions, nor a lawful payment, would automatically break a series of deductions. In their summary, the Supreme Court noted: ‘What constitutes a series [of deductions] is a question of fact that must be answered in light of all the relevant circumstances’. In this case, ‘each unlawful underpayment was linked by the common fault that holiday pay had been calculated by reference to basic pay only’.

This means workers can now lodge a claim for ‘linked underpayments’ even if there is a lawful payment or a gap of more than three months between payments. There is still a two-year limit which applies to unlawful deduction claims, so workers can only claim for losses dating back two years from the date of their claim.

This case reinforces how important it is for employers to check that holiday pay calculations are accurate and that they are paying their employees correctly.  

Menopause and disability discrimination

In Lynskey v Direct Line, it was held that menopausal symptoms can amount to a disability under the Equality Act.

Lynskey was employed as a Telesales Consultant with Direct Line. During the first few years of her employment, she received positive performance ratings, but in 2019, she started suffering from menopausal symptoms, including low mood, anxiety, difficulty concentrating and poor memory, which impacted her work performance. Lynskey discussed this internally resulting in weekly coaching sessions and a transfer into a new role with reduced pressure.    

Lynskey struggled to meet performance targets in her new role and her performance was assessed as ‘need for improvement’. As a result, she did not receive an annual pay rise. In April 2021, a performance management process commenced and Lynskey received a disciplinary warning.

On 3 May 2022, Lynskey resigned and brought various claims against her ex-employer. The tribunal held that Direct Line treated Lynskey unfavourably when her performance was assessed without considering her disability or making reasonable adjustments. The tribunal also found that Direct Line could have made several reasonable adjustments to support Lynskey’s performance, such as reducing performance targets, considering a transfer to a non-telephony role or abandoning the disciplinary process.

This case is a reminder that menopausal symptoms can amount to a disability under the Equality Act. As with any other disability, employers are duty-bound to make reasonable adjustments for disabled employees and to ensure they are not subjected to less favourable treatment. As soon as a business becomes aware that an employee is experiencing menopausal symptoms which are impacting them in work, they should consider appropriate reasonable adjustments.

Fair disciplinary process

In Charalambous v National Bank of Greece, the employee’s dismissal was found to be fair, despite the decision-maker not being present during the disciplinary hearing.

The Claimant was dismissed for gross misconduct after committing a data breach. During the process that led to the dismissal, the dismissing manager was involved in the early stages of the investigation before handing it over to another manager to complete after realising he would need to be the decision maker. Ultimately, the manager made the decision to dismiss based on a paper consideration of the investigation reports, without meeting the Claimant to discuss the case. The Claimant appealed but it was rejected, and the Claimant submitted a claim to the Employment Tribunal who found the dismissal was fair.  The Claimant appealed to the EAT.

At the appeal the EAT rejected the Claimant’s argument that a previous EAT case Budgen & Co v Thomas established that if a dismissing manager didn’t meet the employee, the dismissal was unfair. The EAT noted that it was desirable for a meeting to take place before a decision to dismiss was taken, but found that the key principle in Budgen was that an employee should have an opportunity to explain their position sufficiently before any decision to dismiss was taken, which the tribunal found had occurred here, even if the process was "less than ideal". Furthermore, the appeal involved a meeting so that would have cured any defect in the first stage of the process.

The tribunal found that overall, the procedure was within the range of reasonable responses, and the dismissal was fair.

Our advice is to take this with a pinch of salt. This case was specific to its facts, and an employer would have to be pretty lucky to dismiss without meeting the staff member, and it still being found to be fair. In addition, it is always worth remembering the cost and time that will have been spent defending such a claim – even if the decision ultimately goes your way. Following a clear and reasonable process, which is set out in your internal procedures and drafted based on the ACAS code, is likely to avoid many claims being issued in the first place. Avoiding litigation is a far better position to be in than winning a case after months (or, given the backlog at Tribunals, possibly years) wasted and thousands of pounds spent.

If you have a disciplinary procedure in place, give it a once over to ensure it’s fit for purpose, and, assuming it is, make sure you follow it.  If you don’t have a disciplinary procedure in place yet, get one – now!

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If you have any questions about how any of these cases might impact you, you can get in touch with the team here.