Our August update considers the employment law impact of the Labour government’s landslide victory on 4 July in the UK general election, as well as updates on the new statutory code on fire and rehire practices, and the draft guidance on the upcoming duty on employers to prevent sexual harassment in the workplace.
Case law updates
Religion and belief discrimination: An employee with gender-critical beliefs was neither unfairly dismissed nor discriminated against after his employment was terminated when he refusing to remove ‘deliberately provocative’ preferred pronouns from his email signature. His employer introduced an optional policy inviting staff to share their preferred pronouns as part of their email signatures, although no explicit list of acceptable pronouns was provided. The claimant added “XYchromosomeGuy/AdultHumanMale” to his signature and refused to remove it despite several management instructions to do so. The Employment Tribunal (ET) concluded that his eventual dismissal was fair and not discriminatory, as it was in response to an inappropriate manifestation of beliefs – not because he held those beliefs. It was relevant that the claimant held a public-facing role, and there was a high risk of reputational damage and his employer’s public sector equality duty. The ET commented that the circumstances created more risk than if the claimant had shared views on social media. While it was only at the ET level, this is another case demonstrating the delicate balance to be drawn when employees make their beliefs known publicly. (Orwin v. East Riding of Yorkshire Council)
Religion and belief discrimination: A job applicant has succeeded with a direct-belief discrimination claim after his conditional offer of employment as a support worker was withdrawn when the employer found homophobic content on his social media. The applicant was invited to a further interview and was given the opportunity to discuss his religion and his beliefs and how these might affect his work with the LGBTQI+ community (a key part of the role he was applying for). Although he failed to provide satisfactory reassurance to the employer at that time, it was the withdrawal of the job offer before this meeting which was the basis for a successful claim. However, as it is likely that the employer could have fairly withdrawn the offer after the second interview, compensation will be limited. (Ngole v Touchstone Leeds)
Religion and belief discrimination: In another gender-critical beliefs case, the Employment Appeal Tribunal (EAT) has been considering an appeal against a decision that an LGBTQI+ campaign charity caused or induced the claimant’s barrister’s chambers to discriminate against her when the charity complained to the chambers about the content of the claimant’s social media posts which suggested the charity supported trans-extremism. Action then taken by her chambers in respect of the posts was found to have been discriminatory (and was not subject to this appeal), but there was no finding that the charity had caused or induced that discrimination. The EAT did not overturn this decision. (Bailey v. Stonewall, Garden Court Chambers and others)
Disability discrimination: A claimant who initially succeeded with an indirect disability discrimination claim has had it remitted for reconsideration after the EAT criticised the ET’s analysis of the objective justification defence. The claimant has a visual impairment, and the case involved the font size used by her employer in published documents. The ET found in her favour, saying “there is simply no objective justification for this. There is no legitimate aim, and it cannot be proportionate when the simple thing to do would be to provide documents in larger font. It is unfortunate that the Claimant simply did not explain her difficulty with documents in small font size to the Respondent at the time of the events in question”. However, contrary to the ET’s statement that there was no legitimate aim, the employer had put one forward (management efficiency), and the EAT was critical of the reasoning provided by the ET in reaching its conclusion. It is worth noting that the EAT acknowledged that as a matter of common sense, there is nothing objectionable in providing documents in a standard format provided it is made clear that they can be provided in any other reasonable format on request. (Hilton-Webb v. Minis Childcare)
Part-time discrimination: The EAT has been considering an appeal against the decision of an ET to dismiss a part-time discrimination claim by a part-time private-hire taxi driver that he was treated less favourably by having to pay the same flat-rate fee as his full-time colleagues to get access to a database. The ET concluded that there was no less favourable treatment as everyone had to pay a fee, but the EAT disagreed; the claimant received proportionately less take-home pay than his full-time colleagues after the fee was deducted. However, the EAT agreed with the ET’s overall finding that this was not discriminatory treatment as part-time status was not the sole cause of the unfavourable treatment. There is conflicting case law about whether part-time status needs to be the ‘sole’ cause of the differing treatment, or the ‘effective’ cause. While the EAT considered the latter to be correct, it was not an error of law by the ET to have used the sole-cause test and to conclude that this test had not been made out. (Augustine v. Data Cars)
Injunctions: The High Court has granted an injunction against a former employee who, after being dismissed in his probationary period, subjected the company’s owner to a series of emails and WhatsApp messages containing serious threats of harm if he was not financially compensated. The court found that these threatening communications were likely to amount to harassment and blackmail, sufficient to amount to criminal acts. (RBT v YLA)
National minimum wage (NMW): An employer who allowed workers to voluntarily pay money, deducted from their wages, into a ‘holiday fund’ and to withdraw that money at any time has been found to be in breach of the NMW. Overturning the ETs decision (which took into account the employer’s good intention), the EAT expressed sympathy for the employer, but as contributions into the scheme took wages below the NMW, there was a breach of law. Interestingly, HMRC and the EAT judge conceded that if the contributions had been held in a separate third-party account, there would have been no such breach. (Revenue and Customs Commissioners v. Leeds of Scotland Ltd)
Unfair dismissal: Care workers who were dismissed during the COVID pandemic for refusing to be vaccinated under their employer’s policy – before vaccination was mandated by the government – were fairly dismissed. The EAT, agreeing with the ET’s decision, concluded that the dismissals had been handled fairly under employment law, and that there was no breach to the workers’ human rights. While the specific facts of this case are now unlikely to arise, the case is helpful for looking at how the ET should balance human rights arguments with unfair dismissal principles. (Masiero v. Barchester Healthcare)
ET procedure – deposit orders: In determining whether a respondent’s defence had any reasonable prospect of success for purposes of making a deposit order, the EAT has concluded that an ET is entitled to consider the outcome of previous litigation against the same respondent relating to the same arguments and identical facts. This case involved the employment status of drivers; previous litigation had concluded that a different set of drivers working for the respondent were ‘workers’, the present claim being further litigation by another set of claimants on the same issue. The respondent sought to defend the claim, and in the circumstances, it was not disproportionate to make a deposit order. (Addison Lee Ltd v. Afshar and others)
ET procedure – postponement: The EAT has concluded that an ET was wrong to deny a claimant a postponement on day two of a 10-day hearing in circumstances where her representative was not able to continue representing her due to a deteriorating medical condition. The claimant had made an application for a postponement the previous day for other reasons which was rejected, but the ET had been too hasty in rejecting the application a second time – there had been a material change in circumstances, and consideration should have been given to whether the claimant, who had several disabilities, was able to represent herself. (Bennett v. London Borough of Islington)
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