UK HR Two Minute Monthly – September 2021 | Bryan Cave Leighton Paisner



Legal Professional Privilege, Litigation Advice Privilege, Unfair Principle, Wrongful Dismissal, Right of Appeal, Illegal Protection Against Wage Claims, Income Protection Payments

EAT concludes that an email sent prior to a disciplinary hearing, indicating the employer’s intention to terminate an employee under all circumstances, did not fall within the “unfairness” exception to litigation privilege.

Confidential communications between a party to an employment tribunal and its legal advisers are protected in accordance with the doctrine of professional secrecy. However, the “principle of unfairness” means that legal privilege will be lost when a document or communication is created for the purpose of promoting criminal or fraudulent activity.

In Abbeyfield Company (Maidenhead) v Hart Mr. Hart was dismissed for serious misconduct. He then submitted a data access request (“DSAR”) and presented several appeals to the labor court, including an appeal for unfair and abusive dismissal. During the court proceedings, Abbeyfield identified a number of communications between Abbeyfield and third-party human resources consultants which it said were inadmissible due to litigation privilege. The court agreed with Abbeyfield’s position, with the exception of a communication from the appeals officer that Mr Hart would not return under any circumstances. In light of the view expressed by the appeals officer, and noting that the email was dated two months before the dismissal decision was made, the court concluded that it would be unfair to allow Abbeyfield to defend the request for unfair dismissal.

Abbeyfield appealed the decision and EAT allowed the appeal. The EAT did not consider the email to be unfair conduct and found that the court erred in disregarding the nature of the email. He found that Abbeyfield had not asked for advice on how to act illegally, and the human resources consultants had not given such advice either. The EAT also observed the conclusion of the Court of Appeal in Curless vs. Shell Internationalthat is, the principle of unfairness does not apply where a communication / document contains “trivial legal advice” as opposed to advice to act in a devious or unfair manner. The email in question was therefore not “unfair” and was protected by litigation privilege.

Mr Hart also cross-appealed the court’s decision, saying he erred in concluding that DSAR emails were protected. He argued that Abbeyfield waived the privilege when she voluntarily provided it to him. The EAT allowed his appeal but sent the case back to court for reconsideration.

Why is this important?

The EAT ruling demonstrates that there is a high bar when trying to prove the application of the unfair exception to litigation privilege, knowing that the email in question appeared to indicate that Abbeyfield had taken the decision to dismiss two months before the dismissal meeting. The circumstances in which it will apply are likely to be rare. However, employers and their external advisors should nonetheless be attentive to what is stated in written communications to ensure that a claimant cannot claim that the decision to terminate was predetermined.

Abbeyfield Company (Maidenhead) v Hart

If an employer refuses to hear an appeal, can the termination decision still be fair?

Yes, (under certain circumstances) found the EAT.

In G Moore v Phoenix Product Development Limited the grievor presented a claim for unfair dismissal following termination of his employment for “other serious reasons” (“SOSR”). The plaintiff was the inventor of a water efficient toilet and a founder and CEO of the respondent who manufactured and marketed the toilet. The Plaintiff was replaced by a new CEO in 2017 and, although he remained an employee and director of the Respondent and agreed to make things work with the new CEO, he found it difficult to accept that he was no longer in charge and the Respondent was no longer “his” company. Following a series of incidents, the Respondent’s Board of Directors lost confidence in the Plaintiff and found that the Plaintiff’s conduct was against the best interests of the Company. In view of the irreparable breakdown of the relationship, it was decided that the Claimant should be terminated.

No right of appeal was offered and while the Grievor made submissions regarding his termination his complaints were treated as a grievance rather than an appeal and in any event were not upheld. .

The court rejected the plaintiff’s request. She acknowledged that the lack of recourse was a serious omission in any unfair dismissal case. However, he also noted that the ACAS guidelines are worded in such a way as to give the plaintiff a right of appeal, but do not give the defendant a corresponding obligation to inform the plaintiff of this right. In view of the circumstances, namely the conduct of the Plaintiff, the size of the Defendant’s organization and the fact that the relationship had broken down, the court found that the appeal would have been futile. In addition, given that the Claimant did not appeal his grievance although he was informed of his right to do so, the court considered that it was unlikely that he would appeal his dismissal. The dismissal was therefore deemed fair in the circumstances.

The plaintiff appealed to the EAT on a number of grounds, but his appeal was not successful. The EAT agreed that the absence of an appeal per se did not make the dismissal unfair. While he believed that an appeal would normally be part of a fair process, he acknowledged that this will not always be the case, as employment rights laws require the court to consider all the circumstances for deciding whether an employer acted reasonably or unreasonably.

Why is this important?

Although that case concluded that the failure to provide a right of appeal did not in itself make the dismissal unfair, it stressed that this decision was made on the facts of this case. The EAT observed that if the plaintiff had appealed and the defendant refused to hear it because he thought it was futile, he could have decided otherwise. We therefore recommend that employers continue to provide employees with the opportunity to appeal a termination and take appropriate steps to hear such an appeal if it is submitted in order to minimize the risk of unfair termination claims.

G Moore v Phoenix Product Development Limited

EAT finds that an employer was required to pay Income Protection Payments (“PPI”) set out in a Letter of Offer and Summary of Benefits prior to a TUPE transfer, despite the fact that the full payments were not made. not covered by employer’s insurance.

In Amdocs Systems Group Ltd v Langton Mr. Langton received a letter of offer and a summary of benefits when he started working for his former employer in 2003. These documents set out his entitlement to the IPP, which included an “indexation” of 5% per annum which is ‘would apply after the first 52 weeks. In 2006, Mr. Langton’s employment was transferred under TUPE to Amdocs and he was advised that his PPI entitlement would not be affected by the transfer. When Mr. Langton began a period of long-term sickness absence in 2009, he received PPI but was told the escalator had not and would not be applied. Mr. Langton therefore applied for an illegal payroll deduction. The labor court ruled that it was contractually entitled to apply indexation in the calculation of the PPI.

Amdocs appealed the decision, but the appeal was not allowed. For the most part, AmDocs said Mr. Langton’s entitlement to payments is limited and governed by the IPP insurance policy, and not by AmDocs contract documentation. The EAT reviewed previous authorities regarding the PPI and similar benefits and noted that the documentation provided in these cases indicated to employees that the benefit existed and the circumstances under which it would be provided, which in turn reflected a contractual commitment. In particular, if the benefit was covered by / subject to an insurance policy, this should be clearly indicated to the employee. The EAT found that, regardless of the limitations and conditions of the insurance coverage, Mr. Langton’s employment contract, as well as the letter of offer and summary of benefits, were contractually binding and that the language concerning the PPI was that of the law (including the escalator). The EAT did not accept that the operation of the IPP Plan was governed by the terms of the group insurance policies and that the policies had the effect of limiting Mr. Langton’s rights. In this regard, he stated that if one is to rely on a clause of an insurance policy which seeks to limit what has been expressly stated elsewhere, further steps must be taken to bring such clauses to the attention of the employee, what did not happen. The EAT also found that since Mr Langton’s former employer had made the commitment regarding the IPP benefit (including escalator), Amdocs was obligated to honor it, whether it be or not covered by insurance.

Why is this important?

This case reminds employers why it is important to carefully review the wording of the contractual MEP and similar provisions and to ensure that the contractual documents specify that any liability will be subject to and limited to amounts received from the insurer. It also serves as a useful reminder for employers to carefully check the level and precise formulation of PPI protection on a TUPE transfer. In particular, if the benefit is provided by and subject to the terms of an insurance policy, this should be made very clear to the employee in order to avoid direct liability on the part of the employer.

Amdocs Systems Group Ltd v Langton

Overview of other developments

Survey launched on menopause at work: the House of Commons has launched an inquiry into the problems associated with menopause in the workplace. The survey aims to determine whether existing discrimination legislation adequately protects women who experience adverse consequences in the workplace due to symptoms of menopause. The survey will make recommendations to try to tackle gender inequalities in the workplace.

Older workers and workers with disabilities can retire later if they can work from home: Office of National Statistics figures show that in June and July 2020, workers aged 50 and over who worked remotely during the covid-19 pandemic were more than twice as likely to say that they were planning to retire later than those who didn’t make it work from home during the pandemic.

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