21 September 2021

Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three employment law cases

F Mercer v Alternative Futures Group Ltd and Others

An employment appeal tribunal (EAT) has held that employees cannot face a detriment for participating in industrial action, even if the detriment is not dismissal.

The claimant, Mrs Mercer, worked as a support worker for Alternative Future Group (AFG), one of the respondents. Mrs Mercer was part of the trade union, Unison, and was a workplace representative for the union. In March 2019, due to AFG’s plans to cut its sleep-in workers’ pay, Unison planned several strikes.

Mrs Mercer was suspended on 26 March 2019 for planning and taking part in a strike. She also received a written warning for leaving her shift early; but the suspension was later lifted, and the sanction overturned following an appeal.

On 23 August 2019, Mrs Mercer applied to an employment tribunal (ET), claiming that she had faced a detriment by being suspended and that AFG had done so to prevent her planning and organising industrial action. She cited section 146 of Trade Union and Labour Relations (Consolidation) Act (TULRCA), further arguing that the “activities of an independent trade union” outlined in TULRCA includes, not only the planning and organisation of industrial action, but also participating in it.

The ET took the European Convention on Human Rights (ECHR) into account in its decision, namely Articles 10 (freedom of expression) and 11 (freedom of assembly and association). The ET considered whether, with the Articles in mind, section 146 of TULRCA can extend to participating in industrial action.

It was ultimately held that, whilst participating in industrial action does form part of the activities conducted by trade unions, the proper interpretation of section 146 means that it cannot be extended to participation.

The ET went on to say that Mrs Mercer cannot pursue a claim that section 146 was breached “if the sole or main purpose was to prevent or deter her from actually participating in that industrial action.” She can, however, still pursue her case under section 146 on the basis that the “sole or main purpose of the suspension was to prevent or deter her from taking part in the planning and organisation of industrial action”.

Mrs Mercer appealed to the EAT. The EAT allowed the appeal, taking into account section 3 of the Human Rights Act 1998 which states that, where possible, “primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the ECHR”.

The EAT pointed out that “any restriction on the right to strike, however minor, may be found to amount to an infringement of Article 11 of ECHR”. On that point, the EAT held that there are no provisions within TULRCA to suggest that workers are not, and should not be, protected from detriment for participating in industrial action.


Dobson v North Cumbria Integrated Care NHS Foundation Trust

An EAT has upheld a claim of indirect sex discrimination because an employer had not considered its employee’s childcaring responsibilities.

The claimant was employed as a Band 5 nurse and worked amongst a team of nine women and one man. She had previously made a flexible working request, which was successful because she had to take care of her three children, two of whom are disabled. The flexibility enabled her to work fifteen hours a week over two fixed days.

Her employer, having conducted a review of her working pattern in 2013, agreed that her childcaring responsibilities meant that her existing working arrangement could continue. However, in 2016, her employer adopted a new policy which meant that flexible working arrangements needed to be reviewed.

The claimant was later asked to work occasional weekends once a month, but she explained that, given her situation, she would not be able to accommodate a change in her working pattern. The claimant, therefore, refused the suggested working pattern and filed an unsuccessful grievance complaint. Her appeal against this decision was also unsuccessful.

She was offered a fire and re-hire arrangement in 2017 based on new terms which required her to work additional days. A notice of dismissal was given to the claimant after she refused re-engagement under those terms. Her appeal against this dismissal was also unsuccessful and so she brought a claim for unfair dismissal and indirect sex discrimination to the ET.

Her claim was dismissed by the ET on the basis that the provision, criterion or practice (PCP) used by her employer was their requirement for all staff to work more flexibly and that it applied to both men and women. It, therefore, could not be said that the PCP disadvantaged the claimant more because of her sex, especially because all other members of her team were able to accommodate the new requirement.

It was further decided that her employer was pursuing a legitimate aim by making the team more flexible.

The claimant appealed to the EAT, who upheld the appeal. The EAT held that the ET had erred in its decision and remitted the case to the same ET for reconsideration.

On forming its decision, the EAT found that the pool for comparison should not have been limited to just the claimant’s team. Rather, the claimant’s situation should have been compared to all community nurses within the particular National Health Service (NHS) Trust where she was employed. By widening the pool of comparison, it was found there was evidence of group disadvantage.

Furthermore, the EAT noted that the ET should have considered the fact that generally women are, more often than men, not able to accommodate certain work patterns due to their child-caring responsibilities.


Perkins v The Best Connection Group Limited

The claimant signed with the respondent, an agency which places agency workers with various clients, in June 2019.

When lockdown was announced in March 2020, the claimant performed his last shift on assignment on or around 17 March 2020. The claimant wasn’t initially placed on furlough as the respondent was unable to free up the cashflow to make payments to its temporary workers, pending receipt of the government’s grant payments under the furlough scheme. It was also unclear whether workers would accrue annual leave whilst on furlough.

In May 2020, the claimant was informed he would be furloughed, along with a small number of workers. This was due to some clarity from the government, to the effect that agency workers would not accrue annual leave pay whilst on furlough, if they wouldn’t ordinarily under their normal agreement when they were between assignments.

The claimant’s furlough began on 11 May 2020. During the time spent on furlough, a period between March and May 2020, the claimant did not perform any work for the respondent. The period of furlough ended on 20 July 2020 and issues arose when the claimant attempted to receive accrued annual leave payments for this time.

The government’s advice to employers on annual leave and furlough states: “Some agency workers on a contract for services may not be entitled to the accrual of holiday or to take holiday under the Working Time Regulations while on furlough because they are not workers, or treated as workers under those regulations when between assignments or otherwise not working on assignments.”

Analysis of the claimant’s contract with the respondent highlighted that the agreement only existed, and so only had effect to implement the terms and conditions within it, when he was on assignment. Specifically, the claimant would not “receive payment from [the respondent] or its clients for any time not spent on assignment, whether in respect of holidays, illness or absence for any other reason.”

Because of this, the judge ruled that holiday pay was not due. The claimant was unable to work while on furlough and therefore could not claim to be on assignment. This meant the agreement was not in force throughout that period and so no holiday pay accrued.

It is worth noting that the situation may be different depending on the wording of the contract that work is performed under. This case hung on the specific provisions of the contract; others may not contain similar wording or may operate differently in practice. 


Featured in the October 2021 issue of Professional in Payroll, Pensions and Reward. Correct at time of publication.