In Brief: Case Law Special (August 2020)

This month’s 'In Brief' is a common law catch up. It can be hard to keep up to date with case law developments – it’s all too easy to miss an important decision that has major implications for employers and employees. For this very reason we decided to compile a list of some of the most interesting employment cases that have been decided in the last few months.

If you want to know more about any of the cases, each has a link to a more detailed case review on the Northern Ireland Employment Law Hub, where you will also find a further link to the full judgement online.

The decisions highlighted in this article cover a wide range of employment issues, including Unfair Dismissal, Redundancy and Employment Status.

Unfair Dismissal

Dismissal tends to be an area that continues to be challenging for Claimants and Respondents. An example of a fair dismissal in Crean v BT Plc [2020] shows the importance of following a fair dismissal procedure even when the misconduct leading to the dismissal seems justified. Balcetis v Ulsterbus Ltd & Translink [2020] is a good example of how an employer can successfully defend a dismissal claim. 

A fatal flaw in many dismissals is prejudging the outcome as happened in Hyett V Stock Bounty Limited [2020] and not conducting a thorough enough investigation as was the case in Wardle v RMS Cash Solutions Ltd [2020] where the tribunal found that the respondent failed to properly engage in finding evidence of intent but rather took a misdescription as proof of dishonest intent. 

In Chowdhury v Marsh Farm Futures [2020] procedural defects resulted in a case being remitted back to the ET where the individual carrying out the investigation had been involved in the initial complaints that had been made and had also prepared a disciplinary letter.  

Remedies for Unfair Dismissal

Findings of unfair dismissal can be costly for employers and when you take pension loss into account some awards can be quite substantial as happened in Austin v Leeds Teaching Hospitals NHS Trust [2020] in which the pension loss alone amounted to £96,700 net.   

In Fotheringhame v Barclays Services Ltd [2020] the EAT confirmed that interest payments were not due on remedies of re-engagement.   Reinstatement is not a common remedy in unfair dismissal cases but the NIIT ordered this in the case of O’Hare v Northern Ireland Fire and Rescue Service [2020] in which a firefighter was awarded reinstatement where the tribunal criticised the sanction imposed by the respondent. 

Redundancy

As many employers are preparing for restructuring and potential redundancies we are reminded of the importance of consistency and fairness in redundancy selection to avoid claims of discrimination due to unfair selection as was the case in Taylor-Hamieh v The Ritz Hotel Casino Ltd [2020].

In Gwynedd Council v Barratt & Others [2020] the importance of providing the right of appeal in a redundancy dismissal was highlighted.

Employments Status

As we eagerly await the outcome of the Supreme Court hearing of the Uber case this recent employment tribunal decision - Harris & Kearney v Excel Brickworks Ltd [2020] - shows that there are still many issues to be resolved regarding employment status.  If you would like to refresh your memory of the arguments that have arisen in the Uber cases we have a number of case reviews:

• Employment Tribunal: Aslam, Farrar and Others v Uber BV and others [2016]
• Employment Appeal Tribunal: Uber B.V. and Others v Mr Y Aslam and Others [2017]
• Court of Appeal: Uber v Aslam & others [2018]

You can visit the Case Law section here on the Hub to find these cases and many more.