Cases on appeal

Cases on appeal provides news on key case law developments that are expected.

Accattatis v Fortuna Group (London) Ltd

COVID-19 | automatic unfair dismissal | health and safety

In Accattatis v Fortuna Group (London) Ltd ET/3307587/20, the employment tribunal held that an employee was fairly dismissed after refusing to attend work and giving his line manager an ultimatum that he should either be furloughed or allowed to work from home. 

Mr Accattatis appealed the tribunal decision. The Employment Appeal Tribunal (EAT) delivered its decision on 29 February 2024. In Accattatis v Fortuna Group (London) Ltd [2024] EAT 25, the EAT held that the tribunal had failed to consider all the circumstances when considering whether Mr Accattatis' ultimatum was an appropriate step to protect himself from perceived danger. The EAT said it was not clear from the tribunal's judgment that it had evaluated the significance of what Mr Accattatis knew about some colleagues being permitted to work from home, and the advice that he had received from the HMRC helpline concerning furlough. The EAT remitted the case to the tribunal to determine this issue. 

Charalambous v National Bank of Greece

unfair dismissal | disciplinary hearing | decision-maker | appeal

In Charalambous v National Bank of Greece [2023] EAT 75, the EAT upheld the tribunal decision that the employee's dismissal was fair even though the manager who made the decision to dismiss had not attended the disciplinary hearings.

Ms Charalambous is appealing the EAT decision. The Court of Appeal is due to hear the appeal by 14 October 2024.

Higgs v Farmor's School

religious discrimination | philosophical beliefs | social media

In Higgs v Farmor's School ET/1401264/19, an employment tribunal held that a Christian school worker's belief opposing gender fluidity did amount to a philosophical belief under the Equality Act 2010. However, the tribunal dismissed her discrimination claim as it found that the school's disciplinary proceedings against her were not motivated by her beliefs but by the school's concern that, by reason of the content in her Facebook posts, she would be perceived as holding unacceptable views in relation to gay and transgender people.

Mrs Higgs appealed the tribunal's decision. The EAT allowed the appeal in Higgs v Farmor's School and another [2023] EAT 89. The EAT held that the tribunal had erred in its approach as it had failed to consider if the school's actions were because of, or related to, the manifestation of the school worker's beliefs, or were in fact due to a justified objection to the manner of that manifestation. The EAT remitted the case back to the tribunal for a rehearing of that issue. 

On 18 January 2024, the Court of Appeal granted leave to appeal the EAT decision. The Court is due to hear the appeal by 7 October 2024.

Mercer v Alternative Future Group Ltd and others

trade union activities | industrial action | detriment | human rights

In Mercer v Alternative Future Group Ltd and others EAT/0196/20, the EAT held that s.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 breaches art.11 (freedom of assembly and association) of the European Convention on Human Rights as it does not protect against detriment for participating in industrial action. However, the EAT found that it does not go against the "grain of the legislation" to read s.146 as encompassing that protection.

The Secretary of State for Business, Energy and Industrial Strategy intervened in the proceedings and appealed the EAT's decision. On 24 March 2022, the Court of Appeal published its judgment in Mercer v Alternative Future Group Ltd and another [2022] EWCA Civ 379. Allowing the appeal, the Court of Appeal held that s.146 cannot be read as providing protection against detriment for participation in industrial action.

Ms Mercer, supported by Unison, appealed the Court of Appeal's decision. On 17 April 2024, the Supreme Court delivered its decision in Secretary of State for Business and Trade v Mercer [2024] UKSC 12. The Supreme Court held that subjecting employees to a detriment for participating in industrial action is not a breach of s.146. However, the Court found that this lack of protection under s.146 breaches art.11 and, as the Court does not have the authority to interpret s.146 in a way that gives effect to an individual's art.11 rights, the Supreme Court made a declaration of incompatibility. This means that it is now a matter for Parliament to decide whether to legislate to resolve the incompatibility.

The Royal Parks Ltd v Boohene

indirect race discrimination | contract workers | pay

In The Royal Parks Ltd v Boohene and 15 others [2023] EAT 69, the EAT overturned a tribunal decision that a group of outsourced toilet cleaners were subjected to indirect race discrimination after it compared their pay with the pay of employees who were directly employed by the Royal Parks. The EAT found that the tribunal had wrongly identified the pool for comparison and had improperly excluded all other outsourced workers undertaking work for the Royal Parks. 

Mr Boohene and his colleagues appealed the decision to the Court of Appeal. The Court heard the appeal on 21 February 2024 and will deliver its judgment in due course. 

USDAW and others v Tesco Stores Ltd

implied term | injunction | firing and rehiring

In USDAW and others v Tesco Stores Ltd [2022] EWHC 201 (QB), the High Court implied a term into the employment contract that prevented Tesco from exercising its right to terminate the contract on notice for the purpose of removing or diminishing the right of employees to enhanced "retained" pay. The High Court granted an injunction stopping Tesco from firing and rehiring employees with this contractual pay protection.

Tesco appealed the High Court's decision. On 15 July 2022, the Court of Appeal delivered its judgment in USDAW and others v Tesco Stores Ltd [2022] EWCA Civ 978. Allowing the appeal, the Court overturned the injunction as it could not accept that it had been the mutual intention of the parties to limit the circumstances in which Tesco could bring the contracts to an end.

USDAW is appealing the Court of Appeal's decision. The Supreme Court is due to hear the appeal on 23 and 24 April 2024.