Siobhan Murphy
Posted on 8 Sep 2020

First COVID-19 related Employment Tribunal case sets a precedent for future claims

BREAKING: this is the first COVID-19 related Employment Tribunal case which we have seen since the pandemic began, and could set a precedent for future claims. Following the dismissal of an employee who disagreed to vary his contract following the pandemic, the Employment Tribunal granted interim relief on the basis that the employee was likely to establish at a full hearing that his trade union membership was the principal reason for dismissal.

An Employment Tribunal has granted interim relief to an employee who was likely to establish that his trade union membership was the reason for his dismissal during the coronavirus pandemic.

Morales v Premier Fruits (Covent Garden) Ltd ET/230294520

The Claimant had been employed by Premier Fruits (Covent Garden) Ltd (Premier), a company who sourced and supplied fruit and vegetables, since August 2018. In March 2020, the business suffered due to the outbreak of Covid-19. Premier consequently proposed that, in order to protect the long-term sustainability of its business, all staff members should take a 25% pay cut and take one week's unpaid leave per month. It was Premier's understanding that all staff, including the Claimant, agreed to this variation to their contracts.

However, in May 2020, the Claimant's trade union representative lodged a grievance on his behalf. The grievance set out allegations that the wage reductions had caused him detriment and that the health and safety of staff was being endangered by a lack of personal protective equipment (PPE).

In the days following the grievance submission, a meeting was held with staff, but the Claimant was not invited. A colleague recorded the meeting at the Claimant's request. During the meeting, Premier made comments that, 'one particular person in the firm has decided to go to a union’… and that person ‘is not obviously backing the company’. A member of Premier's senior management team went on to state that ‘I will not be dictated to by a union. What they did to the firm 12 years ago was disgusting’.

At a later meeting on 14 May 2020, the Claimant was asked to sign a document stating formally that he would agree to accept a pay reduction, but he refused. At the conclusion of the grievance process in July 2020, the Claimant was dismissed, purportedly on the ground that the company was unable to sustain his full salary. The Claimant brought proceedings for automatic unfair dismissal under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) (dismissal because of his trade union membership and/or activities) and on grounds that he had made protected disclosures related to health and safety under section 128 the Employment Rights Act 1996 (ERA 1996). He applied for interim relief.

When is interim relief ordered?

Interim relief is rarely sought and even more rarely granted. In certain types of automatically unfair dismissal cases, primarily whistleblowing claims and trade union membership claims, an Employment Tribunal (ET) can grant an employee interim relief. The relief may be an order that the employer continue employing the employee (or, if it is unwilling to employ them, to continue paying their salary) until the case is determined.

An ET can only grant interim relief if it decides that the claimant is "likely", i.e. has more than just a "reasonable prospect of success", to establish at a full hearing that the prohibited reason was the principal reason for dismissal. Therefore, in this case, the ET needed to consider whether it was likely that the Claimant would establish at the full hearing that either (i) he was dismissed because of his trade union membership; or (ii) he was dismissed because of making a protected disclosure.

What did the ET hold at the interim hearing in Morales v Premier Fruits (Covent Garden) Ltd?

The ET considered that it was likely that the Claimant would be able to show that he was dismissed because he had sought the assistance of a trade union to bring a grievance. The ET heard the recording of the staff meeting at the interim hearing, during which the manager in question had shown strong hostility to trade union involvement in the grievance. It transpired that he had also dismissed the employee who had recorded the staff meeting called to discuss the union's involvement. In that instance, an order for reinstatement was made.

The claim for interim relief, on the basis that the Claimant had made a protected disclosure relating to health and safety, was less persuasive and the ET declined to order interim relief under the ERA 1996 on this ground.

What can employers take from this?

This case is one of the first which scrutinises a business's decisions in response to the pandemic. A huge number of companies have faced difficulties because of Covid-19 and variations to employee contracts, for example a reduction in salary, have been a common response. When done in accordance with the contract or, in the absence of a relevant clause, agreed with employees, these decisions are not contrary to law. The issues in this case instead surround the process of the variation and the subsequent dismissal.

Whilst interim relief is particularly rare, employers should be mindful that it is often considered in trade union membership claims. Employers and employment agencies must not treat an employee unfairly because they decide to join, decide to leave, refuse to leave or refuse to join a trade union. In this instance, the covert recording of the meeting made it fairly clear that the Claimant's union membership was unwanted by Premier. In some cases, covert recordings may not be permitted as evidence. However, where such evidence goes to the core issues of the case, a Judge will often allow it.

Employers should therefore be conscious that technology makes it easier than ever for covert recordings to be made by employees and should refrain from making remarks such as those heard in this case.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy to discuss any issues you are facing.