The Law in 4: Employment and Immigration news 28/02/2023

Every other week we give you the run-down on 4 updates from the world of employment and HR. Whether it be a tribunal case, government decision or anything else for that matter – we’ve got it covered.

1. ‘Friendly and talented’ barber receives justice after unfair dismissal case

I know that we bang on all the time about the importance of following a process and here’s yet another case to highlight that. In this case, Celine Thorley was sacked by salon owner Christian Donnelly with no formal warnings following her repeatedly calling in sick over her 4 year employment. Mr Donnelly claimed that he had told Thorley not to ‘let him down’ after she confessed that she was having friends round on a Saturday night. She then proceeded to call in sick the following Monday claiming that she ‘had a stomach ache and could not get out of bed,’ which was the catalyst that led to her being sacked. Mr Donnelly had had enough.

The tribunal judge rejected Ms Thorley’s disability discrimination claims but did rule that she had been unfairly dismissed because there had been no process followed and no warnings given. The judge stated that Mr Donnelly should have warned her about her absence and given her time to improve her attendance. If she had not then done so, a dismissal could have been fair.

As an aside, Ms Thorley was also compensated for not having an employment contract and for a shortfall in wages.

2. Welsh Rugby strike averted

Following the Welsh Rugby Union’s delay in awarding contracts, players have grown angry at the uncertainty over their position next season. This issue has escalated to such an extent that they were threatening to strike (a shame for rugby fans, although as an England fan, I was hopeful because I wasn’t sure England would win, but that’s another topic).

This was a particularly bold move, even bolder than some of their set pieces on the pitch: for the strike to be legal, there would have to be a ballot with over 50 per cent in favour, and a two-week notice period. Without these conditions being met, their strike action would be unlawful. Thankfully though, the strike will not go ahead, but this is far from over. For the good of Welsh Rugby, let’s hope it can be sorted out.

3. Should diplomatic immunity restrict individuals from receiving a fair trial?

In a fascinating case a woman was given the right to a tribunal in the UK after she lost her job in Dubai while on maternity leave. Ana-Maria Beldica previously worked as equality team manager at The British Council in Dubai but was told that her job no longer existed less than two months before she was meant to come back from maternity leave. Following this, Ms Beldica was told that she could apply for a job in a new structure, but this never came about. She was understandably unhappy with this and has since attempted to get the assistance of the UK tribunal.

The British Council told her that this case was covered by UAE law, so she could make her complaints there. Red tape and the diplomatic immunity of her employers meant that Ms Beldica found no success in her complaints within the UAE.

However, Ms Beldica has since had more luck. Employment Judge Pavel Klimov has given her the right for her case to be heard in the UK, stating that ‘immunity does not extinguish liability’ and that the British Council has attempted ‘to effectively put itself beyond the reach of law’ by resisting Beldica’s attempt to have the matter adjudicated in the UK.

4. Justice costs

On an increasingly worrying note, there is a rising employment tribunal backlog.

The Law Society of England and Wales has warned that the Tribunal backlog is leaving employees and businesses in a limbo for far too long. After employment tribunal fees were cancelled in February 2021, the number of outstanding cases has grown extensively. In December 2021 there were 47,041 outstanding cases, which has since increased to 50,518 in December 2022.

This is putting pressure on court systems with their already-stretched resources. Law Society President Lubna Shuja has said that ‘people and businesses are facing prolonged periods of uncertainty, which is likely to take a high toll both personally and financially, with the cost-of-living crisis hitting businesses and individuals hard.’ The central issue that is not helping this problem is the lack of judges available. President Shuja has said that in order to solve this problem ‘the government needs to ensure Employment Tribunal claims can be heard in a reasonable timeframe to enable individuals and businesses to resolve their issues and move on.’ In other words, a fair resolution to the issue that can only be achieved with more government funding.