It was only going to be a matter of time before COVID-19 related cases started hitting the Employment Tribunal and I have recently seen a report of a case that illustrates the type of claim that we are likely to be dealing with in the future.  

You might not know this but if somebody believes that they have a whistleblowing claim under the sections of the Employment Rights Act connected with the Public Interest Disclosure Act, it’s open to them to claim something called “interim relief”.  It is also possible if somebody believes they have been dismissed for being a member of a trade union or making use of trade union services, to claim “interim relief” under section 161 of the Trade Union and Labour Relations (Consolidation) Act 1992.  What happens when somebody asks for interim relief is that they go to the Tribunal very quickly after being dismissed (they have to do this within 7 days) essentially asking the Judge to agree that they have a decent case and that the employer has to continue paying them until they get to the final Employment Tribunal hearing.  If they are then unsuccessful, the employer merely ceases paying them and they (the employee) don’t have to pay all the money that they have received back.  Clearly this is very undesirable from the employer’s perspective.

A recent case involved a fruit business in Covent Garden, whose business was heavily hit by the pandemic. In March it proposed that staff take a 25% pay cut and take one week’s unpaid leave per month.  One employee, who is a trade union member, got his union to lodge a grievance on his behalf claiming that the wage reductions were causing him a detriment and that his health and safety was being endangered by a lack of personal protective equipment.

The employer ran a grievance process that lasted 2 months but at the end of that, the individual was dismissed on the grounds that he had refused to consent to the reduction in wages.

He is bringing unfair dismissal proceedings and the Judge considered that it was likely that he would be able to show that he was dismissed because he had sought the assistance of a trade union to bring the grievance and the order for interim relief was made.  The Judge will not have had the benefit of cross-examination of witnesses but they will have been able to see witness statements and the paperwork put before them, which is likely to include all the grievance process paperwork generated. 

The downfall for the particular manager came about because the employees had recorded a meeting and the recording was played in court.  The manager was heard to say the following: “one particular person …. has decided to go to a union”.  That person is “not backing the company”.  “I am extremely upset and disappointed over this one person who has decided to go to the union”, and “you can probably all guess who the person is as he is not stood in the office”.  Further, the manager expressed his views that “I will not be dictated to by a union” and “if they are not careful they will ruin this country”.  

It is really important to train managers to assume they are being recorded and they behave accordingly.  We call this the “Would I be happy for a Judge to hear me say that?” test.

When it came to the claim for interim relief, since the manager had shown hostility to the trade union involvement in the grievance and there was evidence that he had dismissed another employee who had recorded the staff meeting, the Judge was prepared to find for the employee.

The manager tried to say that he didn’t have any objection to the employee involving a trade union, he was just annoyed with the employee for not raising issues with him before taking it to the trade union.  It seems the Judge didn’t agree with that distinction in the light of the negative comments the manager had made already.

When it came to the question of PPE, the evidence was less persuasive.  This does not mean that the employee will be unsuccessful in this regard – it just means that at this time, the Judge didn’t have sufficient evidence in front of them to really make a judgment – that issue will have to be argued out in full in a full hearing in the fullness of time.

In London, cases are being listed well into 2021 and 2022 so the employer is now having to pay this employee in that intervening period. It is a salutary reminder that even though you might not recognise a trade union, an employee can still choose to involve them if they happen to be a member and to do so they are protected from detriment.

It also shows how health and safety arguments are working their way into cases.

Refreshing Law Ltd

10 September 2020