Case law updates

Gender reassignment discrimination: A transgender woman with a gender recognition certificate (GRC) was not unlawfully discriminated against when she was excluded from a female pool competition following a reversal of the pool organisation’s self-identity policy. The court concluded that pool is a sport which can lawfully be separated into gender-based competitions, and treating men and women differently in the organisation of tournaments was a proportionate way to promote the integrity of the game through fair competition and diversity. Given the Supreme Court’s recent ruling on the definition of sex under the Equality Act, the claimant’s GRC was not relevant – she was biologically male, and therefore under the Equality Act the appropriate comparator was a man without the protected characteristic of gender reassignment. As that comparator would also have been excluded from the female competition, there was no differential treatment. (Haynes v. The English Blackball Pool Association)

Race discrimination – language: An English care worker has won a claim of racial discrimination and harassment arising from a meeting with three managers where they conversed in Polish, a language which she did not understand. The meeting was to discuss issues relating to the claimant’s conduct and performance. Although the employment tribunal (ET) found it was not the intention of the managers to intimidate or humiliate the claimant when they interacted in their native language, it was not unreasonable in the context of a sensitive and important meeting for the claimant to have felt this way. The ET differentiated this from where the three managers spoke Polish together in the claimant’s company, but as part of general interactions and not with the claimant specifically, which would not have passed the threshold to be considered harassment. The case highlights the need for employers with a multinational workforce to be mindful of where different languages may be spoken throughout the working day. (Kellington-Craword v. Newlands Care Angus Ltd)

Legal advice privilege: Legal advice given by a solicitor to their client is exempt from being disclosed to another party or the court under privilege rules. The public policy underlying legal advice privilege is that when a client consults a lawyer, the client must be confident that what passes between them will never be revealed without the client’s consent. However, there is an exception for “iniquity”, which is where the legal advice forms part of a dishonest plan or criminal enterprise. The scope of this iniquity exception was recently considered by the Employment Appeal Tribunal (EAT) in a case where confidential email correspondence between an employer and their solicitor about how to handle the claimant’s future dismissal was mistakenly sent to the claimant. The claimant argued she was entitled to rely on the emails in support of her claim on the basis that the email exchange demonstrated underhand behaviour by fabricating a false position before her dismissal, amounting to iniquity. The EAT dismissed the claimant’s appeal. In its view the emails were not fabricating a false position and did not demonstrate anyone was acting in an underhand or iniquitous way amounting to a sham. The email communications were within the normal scope of advice which employment lawyers routinely give to clients, with no suggestion of an ulterior motive if the employer decided to dismiss. Whilst clearly fact-specific, the case is reassuring to employers and their advisors that there is a high threshold for the iniquity exception. It also serves as a cautionary reminder of the possible consequences of inadvertent disclosure. (Shawcross v. SMG Europe Holdings)

Whistleblowing: A claimant who was dismissed for a breakdown in trust and confidence when he (i) refused to engage in a performance improvement plan because he believed it to be a punishment for making protected disclosures and (ii) continued to accuse his employer of fraud despite his allegations having been fully investigated and dismissed, was not automatically unfairly dismissed for whistleblowing. Whilst his initial allegations of fraud were a protected disclosure, subsequent allegations of the same nature were not protected as it was either unreasonable for him to continue holding that belief following the investigation, or the disclosures were not being made in the public interest. Further, on the facts, the reason for his dismissal was not the making of the protected disclosure, but his behaviour which followed. The case has been returned to the ET to determine whether the dismissal was unfair under ordinary unfair dismissal principles. (Argence-Lafon v. Ark Syndicate Management Ltd)

Disability discrimination: An epileptic prison officer has been awarded £445,000 for disability discrimination after being dismissed from his role, the judgment acting as a reminder of the importance of following proper process, obtaining medical evidence, consulting with the employee and considering alternatives to dismissal. In this case, there was no dispute that the claimant’s epilepsy was a disability, but following his diagnosis there were security risk concerns if he were to have a seizure and so the claimant was placed on restricted duties (occupational health advice being that he needed to be seizure-free for six months before returning to full duties). The claimant had some periodic sickness absence but was dismissed (without prior warnings) for his high sickness record and the unlikelihood of being able to return to full duties. The ET was critical that there had not been a proper enquiry into the claimant’s medical position, leading to unreasonable assumptions being made about what he could and could not do, and a lack of understanding about when symptoms may have stabilised with medication, allowing him to return to full duties. As well as finding that the employer had failed to properly follow the attendance management policy, the ET was critical of the employer for not exploring alternatives to dismissal or properly consulting with the claimant before dismissing him, finding that redeployment would have been a reasonable adjustment. (Mullinger v. Ministry of Justice)

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