Employment Digest Summer Edition – Case law update

Apparent Bias

In Aspect Windows (Western) Ltd v Retter (as representative of the estate of McCrorie):

• Mrs McCrorie had brought (and won) various employment claims.
• Following the decision, a lay member from the tribunal panel posted a link to a report about the decision on her LinkedIn page. Various followers left comments on the post, celebrating the outcome, and her ‘vital role’ in reaching it.
• Aspect Windows appealed the decision and argued that the LinkedIn post and responses gave rise to apparent bias against it. They argued that:
  • The lay member was not an advocate promoting a victory and so should not have posted this type of post. The comments congratulating her on the brilliant outcome were inappropriate as tribunal members should remain neutral and simply assess a case based on the evidence, rather than seeing a particular outcome as positive or negative.
  • The post was self-promotional, and implied that Ms Hewitt-Gray was good at her job because she had been involved in a case which was reported online. This did not give the impression of a fair hearing.

The Employment Appeal Tribunal dismissed the appeal. It noted the following:

• The Employment Appeal Tribunal had to consider the issues from the perspective of a fair-minded and informed observer.
• The fact that the LinkedIn post and comments were published after the decision had been made did not necessarily mean that the informed observer could not regard them as giving rise to a real possibility that Ms Hewitt-Gray was biased. However, having regard to the particular content of the posts, the fair-minded and informed observer, having considered the contents of the post, would not consider that the tribunal member was biased.
• Although various commenters expressed their support for the outcome of the case, Ms Hewitt-Gray had not herself provided an opinion. As such, the impartial and informed observer would not have inferred a possibility of bias towards the claimant from the post, nor would they have inferred that she had pre-judged the matter or come to a decision on the outcome with reference to anything other than the merits of the case.

That being said, Ms Hewitt-Gray’s post was ill advised – tribunal members should avoid commenting on their own decisions outside of the tribunal.

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Take Me There

Interim injunction

In Hine Solicitors Ltd v Jones, an application was made in the High Court for an interim injunction against Ms Jones, a solicitor who resigned from her employment with Hine Solicitors (HSL) in breach of her employment contract:

• The contract of employment provided an obligation to work a minimum employment term of three years prior to the ability to give notice.
• HSL said that Ms Jones, who started with them on 10 February 2022, was not entitled to resign, on 3 months’ notice, as she purported to do on 2 February 2023.
• Ms Jones began working for another firm on 5 May 2023.
• HSL claimed that her employment contract remained in existence as the alleged act of repudiatory breach by Ms Jones had not been accepted by them.
• Ms Jones’ employment contract contained restrictive covenants but only in relation to a “competing business”, and the parties agreed that her new employer did not meet the definition of a “competing business” set out in the contract.
• HSL’s case rested on the implied duty of fidelity and this was said to include a duty not to compete, to act honestly and to preserve the confidentiality of HSL’s confidential information.
• HSL sought an interim injunction to prevent Ms Jones from enticing away or attempting to entice away from HSL any client of HSL until 8 May 2025.

The High Court dismissed the application for injunctive relief:

• There was no suggestion that Ms Jones had acted dishonestly
• The evidence of enticement was “close to non-existent”. Two clients had moved to her new firm but there was no evidence of Ms Jones having taken any improper steps to ‘entice’ the clients and the court found it “perfectly natural that a client may wish to move” in the circumstances.
• On the evidence there was there no serious issue to be tried that Ms Jones had undertaken or intended to undertake any activity which placed or would place her in breach of the pleaded implied term of fidelity.
• In relation to the argument that Ms Jones was not entitled to resign before she had been employed for a period of 3 years, the court did not accept Ms Jones’ argument that the term was unenforceable. The court held that it was arguable that it was a valid and effective clause.
• However, in examining whether the resignation had been accepted, the court found that HSL had acted consistently with having accepted Ms Jones’ resignation. The managing partner became aware of the resignation the day it was given and did not indicate that the firm would rely on the relevant term in her contract. Instead, the firm told Ms Jones they would be recruiting a replacement, gave her instructions to close her existing files during the notice period, arranged an exit interview and handover meeting and organised a leaving dinner which was attended by several colleagues and partners. It was only on 27 April 2023, on her penultimate day at work that HSL advised Ms Jones that it disputed the fact of the resignation.
• It was clear that Ms Jones was justifiably under the impression that her line manager and colleagues all considered, as did she, that she had resigned lawfully. The unexplained delay by HSL allowed her to move employment in circumstances where she did not know that HSL did not accept she was entitled to do so. No injunction could be granted.

If you have any question about any of the cases mentioned in the update, or if you would like to discuss other employment law matters please do get in touch with Katie Adams or another of our expert Employment Law Solicitors.