Quarterly Case Law Update - April 2023

We highlight the most significant employment law cases since January 2023 and the lessons that employers should take from them.

Without prejudice correspondence

It is common for employers to use ‘without prejudice’ correspondence when negotiating with an employee on the termination of their employment. But what happens if that correspondence includes information the employer later wants to rely on? In the case of Meaker v Cyxtera Technology UK Limited (CTUK), the Employment Appeal Tribunal (EAT) found that a ‘without prejudice’ letter from an employer offering a settlement agreement also amounted to an effective dismissal letter.

Mr Meaker was employed by CTUK in a heavy manual night role. Following injuries to his back and an extended time off of work, it was agreed that the limitations on Mr Meaker’s ability to do heavy manual work were likely to be permanent. CTUK indicated that it was considering terminating Mr Meaker’s employment, and the possibility of a settlement agreement was raised. On 5 February 2020 Mr Meaker received a ‘without prejudice’ letter stating that it had been agreed there would be a mutual termination of his employment. It went on to state that his employment would terminate on 7 February 2020, he would be paid up to that date, the amount of holiday pay and the payment in lieu of notice that he would receive, and that he would be sent his P45. The letter also offered a further ex gratia payment, conditional on him signing the enclosed draft settlement agreement, however Mr Meaker rejected the settlement proposal. On 14 February 2020, Mr Meaker received payments in lieu of his notice and for untaken holiday. He subsequently brought an unfair dismissal claim. 

The central issue in Mr Meaker’s claim was whether the ‘without prejudice’ letter was an effective letter of dismissal. If the effective date of termination was, as CTUK argued, on 7 February 2020, Mr Meaker would have been out of time to submit his claim. If, as Mr Meaker argued, the effective date of his termination was on 14 February 2020, his claim would have been in time. 

Ultimately the case reached the EAT, which decided that the letter was an effective termination letter as, on the facts, it was sufficiently clear that it was terminating Mr Meaker's employment unilaterally, notwithstanding the letter being headed "without prejudice". This is because the letter could be read in separate parts: one openly terminating Mr Meaker’s employment and the other offering him a settlement sum subject to his agreement. As such, Mr Meaker’s claim was out of time and could not proceed.

To avoid the kind of disputes that arose in this case, conversations with employees concerning the termination of their employment should be kept separate from negotiations over the terms of any settlement. Employers can do this by ensuring that any notices of termination of employment are clear and unambiguous and that any communications relating to settlement are contained in a separate ‘without prejudice’ letter. 

Disability discrimination

The EAT decision in McQueen v The General Optical Council will bring some reassurance to employers trying to manage inappropriate conduct at work by a disabled employee. 

Mr McQueen was employed as a registration officer with the GOC, a regulator of optometrists and opticians. He has various health conditions including dyslexia, left-sided hearing loss, symptoms of Asperger’s and neurodiversity. These conditions could cause Mr McQueen to have difficulties when interacting with his colleagues. His employer knew about these conditions and accepted that he was disabled for the purposes of the Equality Act 2010.

Mr McQueen was involved in various conflicts with colleagues, the most notable of which were the two incidents coined as meltdowns by the ET. The first meltdown happened in April 2015, where Mr McQueen was said to have responded to an instruction to prioritise certain work by being “rude, disrespectful and wholly inappropriate, with aggressive gestures and body language that was wholly out of place”. In the second meltdown in April 2016, Mr McQueen was asked to help clear a backlog of work and again responded aggressively, leaving his colleague in tears. Further incidents occurred where Mr McQueen became aggressive towards colleagues, and he was given a written warning for failing to follow instructions. 

Following further disciplinary action for a performance issue and a lengthy grievance process, Mr McQueen raised a disability discrimination claim under section 15 of the Equality Act 2010, alleging that he had been subjected to unfavourable treatment for “something” (his aggressive and disruptive conduct) which arose out of his disabilities. 

The ET concluded that the incidents did not arise from any of Mr McQueen’s disabilities, but instead because he had a short temper and resented being told what to do. Although the ET accepted that Mr McQueen may have found it difficult to deal with changes to ways of working, it did not accept that his disabilities meant that he could not discuss his performance or conduct with his employer. The EAT upheld the ET’s decision.

This case highlights that, even where an employee’s disability may give rise to certain behaviours, there is still scope for an employer to argue that, on a particular occasion, the employee’s conduct did not arise as a consequence of their disability. Each incident should, however, be considered on its own merits and medical advice sought to determine the extent of which an employee’s disability might be impacting them at work. 

Flexible working

Properly considering a flexible working request from the outset is vital if an employer is to avoid potential discrimination claims as the recent case of Glover v Lacoste UK (‘Lacoste’) demonstrates. 

Ms Glover was employed by Lacoste as an assistant store manager. Before going on maternity leave, she worked five days a week flexibly as set out in a rota. During her maternity leave, Ms Glover made a flexible working request to return to work on a three-day week working pattern. This request was rejected. She exercised her internal right of appeal. The appeal was upheld in part, and she was offered a four-day week, to be worked flexibly on any day of the week including weekends. This arrangement was offered on a six-month trial basis. As this outcome would cause her childcare issues, Ms Glover's solicitor wrote to Lacoste asking for her request to be reconsidered, failing which she might have no option but to resign and claim constructive dismissal. Lacoste then agreed to her original flexible working request. This meant that she never had to work the working pattern offered at the appeal hearing and instead returned to work on the working pattern in her original request. However, Ms Glover subsequently presented a claim for indirect sex discrimination. She argued that Lacoste’s previous requirement of fully flexible shift working was a PCP which put female employees at a disadvantage when compared to male employees, due to the fact that women still have primary responsibility for childcare, and that it also put her at a disadvantage individually.

The ET rejected Ms Glover’s claim on the basis that the requirement had never, in fact, “applied” to her in practice as Lacoste had reversed their decision before she returned to work. This meant that she had not suffered any individual disadvantage. Ms Glover appealed this decision to the EAT. 

The EAT concluded that Lacoste had applied the PCP to Ms Glover. This was the case even though she had not returned to work and attempted to work under the new arrangement. The case was remitted back to the ET to determine whether Ms Glover was subject to any disadvantage or detriment by the application of the PCP.  However, the EAT indicated that it struggled to see how she could not have, given that she had felt she had no option but to resign from her role. 

This case highlights the importance of employers properly and fairly considering all flexible working requests. Changing a decision at a later date does not cure any disadvantage or detriment suffered by an employee, even where the employee has not been required to actually work under the pattern in question.