Employment Law Newsletter August 2024

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Six organisations named for not reporting gender pay gap data

The Equality and Human Rights Commission (EHRC) has named six organisations that failed to provide gender pay gap data for 2023/24 by the 30 March deadline.

Public sector employers in England are required to publish their gender pay gap data by 30 March, with private and voluntary sector employers across Britain and some public sector bodies in England required to publish by 4 April.

The six organisations that missed the deadline :

• Alpenbest Limited
• Apex Prime Care Ltd
• Care Quality Services Limited
• Drug Development Solutions Limited
• Norchem Healthcare Limited
• Ultra Electronics Limited

Where contributory fault is found, the ET does not have to reduce the compensatory award

In Notaro Homes Ltd v Keirle and others [2024] EAT 122, the Claimants were employed by Notaro Ltd (Notaro), which operates registered care homes. They were all dismissed for breaching Notaro’s social media policy. Claims were brought in the Employment Tribunal (ET), based on arguments that the employees had been unfairly dismissed for making multiple protected disclosures.

The ET concluded that the disclosures were protected and the breach of social media policy was used by Notaro as a cloak for the dismissals. The ET agreed that the Claimants had breached the company’s social media policy but held that making the protected disclosures was the principle reason for the dismissal.

In an unfair dismissal case, the basic and compensatory award can be reduced if the Claimant’s conduct is found to be contributory. However, when deciding on compensation, the ET concluded that it would not be just or equitable to reduce the amount on the grounds of contributory fault. It was noted by the ET that Notora “seized” the opportunity to dismiss the Claimants because they had blown the whistle and the person that did the firing admitted that breaching the social media policy did not amount to gross misconduct or warrant dismissal.

On appeal, the Employment Appeal Tribunal (EAT) agreed. It stated that the only way the Claimants’ conduct contributed to the dismissal was to provide a pretext to fire them for whistleblowing.

Although this decision clarifies that the ET has total discretion when reducing an unfair dismissal award on the grounds of contributory negligence, it would be unusual for it not to do so. This case very much turned on its facts.

Interim injunction for former employee who sent threatening messages to his employer and other staff

The High Court continued an interim injunction against a former employee of an asset management business, restraining him from approaching or communicating with the business’s founder (the Claimant) and from carrying out his threat to publish material to third parties. The Court deemed the Defendant’s conduct was likely to amount to harassment under the Protection from Harassment Act 1997 when the case eventually went to trial.

After being dismissed for complaints about his conduct, the former employee sent WhatsApp messages to the Claimant and other staff, asserting the business committed fraud and that he had “the power to destroy” the organisation. He also threatened to “fight dirty” he was not paid money. He alluded to covert surveillance and recordings he had made of the Claimant, and stated he would “hound [the business] like a rabid dog”, and “completely destroy” certain people’s credibility “along with their fragile mental health”, and to “light so many fires around [the business] that you … will only be able to watch it all burn to the ground”.

Finding that the former employee’s comments were deliberate, unacceptable, oppressive, highly objectionable, and likely criminal under the Protection from Harassment Act 1997, the Court found that the former employee’s right to freedom of expression under Article 10 of the ECHR would not carry much weight and therefore the injunction should continue.

‘This newsletter does not provide a full statement of the law and readers are advise to take legal advice before taking any action based on the information contained herein’.

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