Cyberpicketing, redundancy, causal link
01 July 2019
This article was featured in the July/August 2019 issue of the magazine.
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Rogers V Picturehouse Cinemas Limited
Employers can often struggle with the protections afforded to trade union members on their payroll. This case offers some useful practical guidance by examining the extent to which certain acts are protected under the umbrella of trade union activities.
Ms Rogers, a representative of the Broadcasting, Entertainment, Communications and Theatre Union (BECTU), was employed at the Ritzy cinema in London. Disputes had been ongoing between BECTU and Picturehouse Cinemas Limited (the owner of Ritzy and several other cinemas across the city) about implementing the voluntary London living wage and other benefits for staff.
The claimant had discussions with another union representative at Picturehouse where the prospect of ‘cyberpicketing’ was brought up. This would involve getting people to bulk-book cinema tickets with no intention of buying them by placing them in their online basket, preventing them from being sold for up to an hour. Following this, Rogers emailed a group of employees to inform them of the discussions and encourage participation, without setting out any specific plan of action.
The employer came across this email when someone left their laptop open at work. They contacted BECTU about this, which confirmed they had not been involved in the discussion and the union proceeded to write to staff informing them that cyberpicketing was potentially unlawful. A disciplinary procedure took place which resulted in Rogers being dismissed for gross misconduct. Despite arguing that she didn’t initially know how potentially serious cyberpicketing was prior to BECTU’s email and that she regretted her actions, the employer ruled her behaviour was extremely serious and intended to cause damage to the company.
Rogers brought a claim of automatic unfair dismissal to an employment tribunal (ET) on the grounds that she had been dismissed for taking part in trade union activities, citing section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992.
The ET ruled in favour of Rogers as the meeting had been arranged in advance of a gathering of union members the day after strike action. They also considered the sending of the email to be in line with union activities, as the claimant was fulfilling her duty as branch secretary by summarising the discussions and providing information to members who were unable to be present at the meeting.
Importantly the ET noted that meetings do not have to be arranged by the union themselves for the protections to apply under section 152. Also, the fact that something was discussed that was not acceptable to the employer, or that discussions involved something that was potentially unlawful, does not make it cease to be trade union activities.
In summary, the ET found the claimant’s actions to be ‘an error of judgment’, rather than ‘unreasonable, extraneous or malicious’ which would take the behaviour outside current protection and render the employee liable to disciplinary proceedings. Therefore, employers will need to apply this way of thinking in the future when faced with potentially disruptive trade union activity.
South West Yorkshire Partnership NHS Foundation Trust v Jackson & others
This case looked at whether an employee on maternity leave suffered unfavourable treatment amounting to discrimination, after there was a delay receiving a letter informing her about a risk of redundancy.
Ms Pease had worked in the Trust’s health and wellbeing service. Whilst on maternity leave, she chose to attend a redundancy meeting at work with her colleagues on 26 July 2016. The day after the meeting, the claimant and her colleagues were put on the ‘at risk register’ and were ultimately sent an email on 28 July 2016 by the Trust which required them to complete a re-deployment document as part of the redundancy evaluation process.
The email was sent to Ms Pease’s work email address which meant she was unable to read it as she had no access to her work email address whilst on maternity leave. However, she learnt shortly afterwards that she had missed this letter and contacted the Trust on 4 August 2016 to rectify the issue. At this stage, the Trust proceeded to send a copy of the letter to the claimant’s private email address, which she completed and returned straight away.
...informing them that cyberpicketing was potentially unlawful...
Sometime after this, the Trust made a decision to make the claimant and several colleagues redundant. At this point, a claim was raised to an ET that the delay in receiving the aforementioned letter amounted to unfavourable treatment and maternity discrimination.
The ET allowed the unfavourable treatment claim and held that because the claimant did not have access to her work emails she did not receive adequate communication during the redundancy process. They ultimately determined that ‘but for’ her maternity leave the claimant would not have been subjected to unfavourable treatment and would have received the email at the same time as everyone else.
The Trust appealed this decision to the employment appeal tribunal (EAT) and whilst they agreed that the circumstances of the case did amount to unfavourable treatment, they disagreed with the reasoning of the initial ET. They went on to outline that the ‘but for’ test applied by the ET was an insufficient basis for determining discrimination. Instead the EAT explained that the correct test to apply in these circumstances was the ‘reason why’ test, which would allow the court to ultimately assess whether the claimant’s maternity leave was the reason why she was treated unfavourably.
The EAT added that it first needed to be established if the maternity was on the mind of the Trust and if this influenced their actions. Because no facts had been produced which clearly demonstrated this, it could be argued that the unfavourable treatment simply amounted to an administrative error. Therefore, the EAT remitted the case back to the same ET to establish further facts and make a determination on this basis.
Overall, it is important to note that tribunals will determine whether any unfavourable treatment experienced by an employee on maternity leave was due to her pregnancy, or some other unrelated reason. Therefore in these situations, it is incorrect to apply the ‘but for’ test.
To safeguard against potential claims employers should keep staff on maternity leave fully informed of any changes affecting the workplace, including promotion opportunities and redundancy decisions. This means contact details for the employee should be clearly established before the leave begins and any communication attempts should be followed up to ensure they have been received.
iForce Ltd v Wood
Here the EAT was tasked with determining whether there was enough of a causal connection between an employee’s disability and conduct in order to support a disability discrimination claim.
This case concerned a warehouse operative who was classed as disabled for the purposes of the Equality Act 2010 due to osteoarthritis. The claimant believed that this condition worsened in cold and damp weather; a belief supported by her doctor.
The organisation took a decision to introduce a change in its working practices. This meant warehouse staff were required to work between benches in the warehouse and therefore move around the working area, rather than stay in one fixed position. The claimant refused to comply, as she believed moving to work at the benches closer to the warehouse’s loading doors would place her in colder, damper conditions and exacerbate her osteoarthritis.
After hearing of these concerns, iForce proceeded to investigate by installing thermometers and found evidence to show that the claimant’s beliefs were incorrect: the temperature and humidity levels were not materially different throughout the warehouse. Because of this, iForce did not accept that the employee had provided a reasonable explanation for her refusal and issued her with a final written warning, which was later downgraded to a warning after the organisation accepted her actions were likely due to her worry and stress.
... employee’s refusal to follow the instruction was not a direct consequence of her disability...
Despite this, the employee proceeded to bring a claim for disability discrimination to an ET. She cited section 15 of the Equality Act 2010, claiming that the issuing of a final written warning had subjected her to a detriment because of something arising as a consequence of her disability. Whilst the ET accepted that the employee had been mistaken to believe she was going to be placed in colder, damper conditions, they stated that her refusal to accept the instruction was solely due a genuine belief that it would have an adverse impact on her due to her disability. Therefore, to issue a written warning for this would qualify as discrimination arising as a consequence of a disability.
However, iForce proceeded to appeal this decision to the EAT which overturned the ET’s original ruling. They outlined that, when determining whether the employee had suffered a detriment as a consequence of her disability, there needed to be a connection between her refusal to follow management instructions and the disability.
Although the claimant was right to state working in colder, damper conditions would exacerbate her condition, the employer had actually provided evidence to show that there would be no difference in her working conditions. Therefore, the employee’s refusal to follow the instruction was not a direct consequence of her disability as no causal link had been established that linked her disability to her belief. It is worth noting that the EAT did agree that this determination may not be the case where an employee’s mistaken perception is directly affected by their disability; however, they confirmed that this did not apply in this situation.
This outcome demonstrates how the onus is placed on employees to clearly establish a causal link between the action that led to the detrimental treatment and their disability. Alternatively, where an employee mistakenly feels they have been subjected to a detriment, they will need to prove there is a causal connection between the disability and the erroneous belief. Employers should remember to take care when making changes to the working environment of a disabled employee and be prepared to make reasonable adjustments where necessary to avoid potential discrimination claims.