High hurdle for employees in bonus cases
The House of Lords has refused Mr Keen’s application to appeal against the Court of Appeal’s decision in his bonus claim against Commerzbank. The Court of Appeal said that the burden of establishing that the bank had acted irrationally or perversely in exercising its discretion in relation to Keen’s bonuses was a very high one. However, it also said that employers must give reasons for any exercise of discretion. A failure to do so could result in a constructive dismissal claim.
Keen v Commerzbank
Range of reasonable responses to investigate a grievance
How an employer investigates a grievance will not amount to a breach of trust and confidence if it is within a range of reasonable responses. The EAT said that the question to ask was whether the employer had reasonable and proper cause for its conduct, and that involves asking whether the employer’s handling of the grievance was within a range of reasonable responses.
Abbey National v Fairbrother
No guarantee of confidentiality in tribunal proceedings
Evidence given in confidence during a grievance investigation is not protected from disclosure at a subsequent tribunal hearing by reason of confidentiality alone. The test is whether disclosure of the information is necessary to dispose fairly of the proceedings. In making its decision, the tribunal must consider issues of confidentiality and public interest, and whether the information can be disclosed in such a way to preserve confidentiality, but the key question is whether disclosure is necessary for the fair disposal of proceedings.
Arqiva Limited v Sagoo
Where an employee alleges that their dismissal amounted to an act of discrimination, there is no requirement to bring a separate grievance in relation to the discrimination complaint. The EAT said that an allegation that a dismissal was an act of disability discrimination should be dealt with under the statutory dismissal procedures pursuant to Regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004.
Lawrence v HM Prison Service