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Farrer & Co | Bitesize case updates

The pace of life seems to ramp up suddenly in September. Whether it’s the weather changing, the kids going back to school or the drawing in of the evenings, I sometimes find it hard to keep up with everything that’s going on. So, if you’re like me, I thought it might be helpful to give you a whistle-stop tour of a few recent employment cases to help you catch up.

Victimisation and bad faith

In Saad v Southampton University Hospital, Mr Saad was a trainee surgeon. During his training various performance issues came to light, but just before an assessment of his skills could take place, he raised a grievance about a racist remark allegedly made about him some time previously. His grievance was rejected, and he was subsequently dismissed.

Mr Saad brought a tribunal claim for, amongst other things, victimisation, relying on his grievance as a protected act. The tribunal rejected this on the basis that, in making the grievance, Mr Saad had intended that his assessment – which he knew would go badly for him – would be postponed. As such, he had an ulterior motive for raising his complaint, which the tribunal decided meant he had not made the allegation in good faith. 

Unfortunately for Mr Saad’s employer, the Employment Appeal Tribunal (EAT) disagreed with this reasoning. The EAT held that the primary focus for victimisation purposes should be whether the employee acted “honestly”. In this case, since Mr Saad was found to have subjectively believed the allegation to be true, this was sufficient to counter the suggestion that he had acted in bad faith (irrespective of whether or not that belief was reasonable). 

The point to take away from this is that an employee’s motive for raising allegations will not necessarily impact on whether they are acting in bad faith. So, while it may be tempting to dismiss a complaint because it has clearly been raised to detract from performance or conduct concerns, employers should still ensure that they follow a full and proper investigation into the complaint to avoid the risk of potential victimisation. 

Introducing more onerous restrictive covenants

It is not uncommon for employers to want to incorporate more onerous restrictive covenants into an employee’s contract of employment after that employee has started working for them. Perhaps the company has grown; perhaps the employee has been promoted or moved role. The case of Tenon FM Limited v Cawley (handed down orally), however, serves as a reminder about the consequences if the covenants are not introduced properly. 

Mrs Crawley started work for a large cleaning company in 2008. By the time she left in 2018, she was its operations director and a member of the senior leadership team. During this period, her employment contract was varied twice to include more onerous restrictive covenants. The contracts stated they would be effective from the date of signature, but there was no evidence that they had ever been signed. Indeed, Mrs Crawley said she had refused to sign them because she did not agree to the restrictions. 

In 2018, Mrs Crawley resigned to join a competitor and Tenon discovered that she had attempted to recruit another of its employees to join her, in contravention of her amended covenants. It sought an interim injunction to enforce the amended covenants to prevent this. 

The High Court refused the application. As well as criticising the manner in which Tenon had brought the application, the Court’s reasons for refusal included:

  1. the fact that the contracts containing the new covenants were not signed, and
  2. that there was a complete absence of evidence that any consideration had been given to Mrs Crawley for the new covenants (ie she didn’t get anything in return). 

The lesson is clear: if you wish to introduce new post-termination restrictions, take the time and effort to ensure that the new agreement is valid (a signature and consideration being the absolute basics required). Otherwise, quite literally the covenants will unlikely be worth the paper they are written on.

Beware what you put down in writing

The culprit in the case of X v Y Ltd was in fact a lawyer (we’ve noted the lessons!), but in a world where much of our communication is by email, it is of relevance to everyone.

The claimant had made allegations of disability discrimination against his employer, including bringing an employment tribunal claim. When a redundancy exercise was commenced at the employer, an in-house lawyer wrote an email marked “legally privileged and confidential”, in which he essentially suggested using the redundancy process as a cloak by which to dismiss the claimant. This email was leaked to the claimant, who not surprisingly on his subsequent dismissal brought a claim for further disability discrimination, victimisation and unfair dismissal. 

The issue in this case was whether the email was in fact “privileged” as marked. The EAT concluded not – the email represented “an attempted deception of the claimant” and also of the Employment Tribunal, and as such lost its privilege. 

Perhaps the most relevant point for all of us though is the need to be careful about what is written down. When we are busy, or in the heat of the moment, it is of course easier and quicker to dash off a quick email, rather than make the effort to talk to someone. Before pressing send, however, it is always worth asking yourself how you would feel if that email were read out loud before an employment tribunal.

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