“The Judgment of the majority of the Tribunal, Employment Judge dissenting, is as follows…”
So begins the judgment of Davies v Blackburn BC in the Manchester Employment Tribunal.
I had to read that twice! I usually try not to overthink how panel members’ deliberations might go and simply wait for the white smoke to emerge. But this case will be gold dust for those who are keen on a window into what they imagine to be the drama and intrigue of panel deliberations.
I am often asked whether the lay members of the panel matter. Employment judges are usually in the driving seat, not least because they have to write the judgment. But not always.
In Davies v Blackburn BC, majority judgment is found at paragraphs 142-156 and 163 – 172, and the minority judgment at paras 157-162 and 173-177.
THE CLAIM
Mr Davies made the following claim against his employer, a local authority:
(a) Unfair dismissal, pleaded in the alternative that the claimant was dismissed by the respondent in accordance with section 95(1)(a) or that he was entitled to terminate his employment without notice by reason of the employer’s conduct in accordance with section 95(1)(c) of the Employment Rights Act 1996;
(b) That the claimant was subject to unfavourable treatment because of something arising in consequence of his disability;
(c) Failure to make reasonable adjustments pursuant to section 20 of the Equality Act 2010;
(d) Direct age discrimination;
(e) Indirect age discrimination;
(f) Wrongful dismissal.
Among other things, the claimant alleged that Mr Addison of his employer withdrew his hybrid role to increase stress on him at a difficult time, such as fundamentally to breach the duty of trust and confidence.
DISAGREEMENT IN THE PANEL
At paragraph 141, it is explained that there were “differences in further factual conclusions reached by the Tribunal” which were “significant in terms of the overall conclusions reached by the panel on the application of the law on the question of whether there had been a fundamental breach of the implied term of trust and confidence” and whether the employer without reasonable and proper cause conducted itself in a manner likely to destroy or undermine that relationship.
MAJORITY REPORT
The two lay members, in the majority, found that the claimant’s evidence to be credible and reliable, preferring his evidence to Mr Addison’s. They found that Mr Addison acted deliberately in sending an email of 15 March 2022 to increase stress on the claimant, knowing that he was suffering from stress and anxiety. The majority concluded that a request by the claimant that day asking for confirmation or clarification of certain matters, was a reasonable request, and Mr Addison failed to provide that clarification during the next four weeks. Where Mr Addison responded on the next day citing a “lack of response” and thus “confirm[ing] that the offer of a hybrid working arrangement is off the table”, the majority concluded that Mr Addison was deliberately seeking to blame the claimant for not responding when he clearly had, and acted vindictively in withdrawing the hybrid role, deliberately trying to unnerve the claimant following his request for clarification. They found that the claimant clearly wanted to return to his position of principal building surveyor but was fearful of the extra work that would land at his door in view of Mr Addison’s promotion, and would exacerbate his anxiety stress leading to further breakdown. Mr Addison’s equivocation did not assure a safe working environment given the fragility of the claimant’s state of mind. The respondents failed to provide a safe working environment, and that was a fundamental breach.
MINORITY REPORT
Employment Judge Cookson, in the minority, concluded that Mr Addison acted unfairly and unreasonably but had not been vindictive. Rather, she concluded that Mr Addison lost patience, and the claimant was not interested in the hybrid role in any event. The stress from having to manage two teams was only relevant to the hybrid role which the claimant had no intention of accepting in any event. By taking the hybrid role off the table, Mr Addison also removed the issue of managing both teams. The alleged failure to provide a safe system of work had to be seen in that context. The claimant’s anticipation of a future possibility of having to manage both teams was insufficient to amount to a breach of the duty to provide a safe working environment. Mr Addison’s conduct was not so unreasonable as to amount to a fundamental breach. She took into account the guidance of Justice Langstaff in Frenkel Topping that the Malik test is a demanding one: a manager acting unreasonably is not sufficient to create such a breach.
Since October 2024 changes have been made so that fewer cases are being heard by a full panel, so there might be fewer cases like this one.
What do you think?
