Reed Smith Newsletters

Welcome to our monthly newsletter, with a summary of the latest news and developments in UK employment law.

Case law updates

Disability discrimination: A claimant who alleged that his disabilities (dyslexia, symptoms of Asperger’s syndrome, neurodiversity, and some hearing loss) affected his interactions at work, with stress, anxiety, and conflict causing him to display mannerisms which could be seen as aggression, has unsuccessfully appealed the court’s rejection of his ‘something arising in consequence of disability’ discrimination claim after he was disciplined following a number of incidents with colleagues. The Employment Tribunal (ET) had dismissed his claim, finding that his conduct did not arise from his disabilities but rather from habit or because he had a short temper and did not like being told what to do. He appealed, arguing that his disability did not need to be the main reason for the ‘something’ (i.e., his conduct), as long as it had more than a trivial influence. However, although critical of the structure of the ET’s judgment, the Employment Appeal Tribunal (EAT) concluded that its rationale was not fundamentally flawed – the ET was aware of the medical evidence, and the court had found no error in law or principle in concluding that the conflicts he was disciplined for had not arisen in consequence of his disabilities and, having reached that conclusion, did not have to consider whether any unfavourable treatment had been “because of” something arising in consequence of his disabilities. The EAT provided some helpful guidance on how to approach issues of this nature, stating that the questions to ask are: (1) what are the disabilities; (2) what are their effects; (3) what unfavourable treatment is alleged in time and proved; and (4) was that unfavourable treatment ‘because of’ an effect or effects of the disabilities? Alternatively, the questions could be reversed: (1) what unfavourable treatment is alleged in time and proved; (2) what was the reason for that unfavourable treatment; (3) what were the effects of the disabilities; and (4) was the reason for the unfavourable treatment an effect or effects of the disabilities? (McQueen v. General Optical Council)

Discrimination – conflict of protected characteristics: The ET has again been considering the issues where there is a conflict between different protected characteristics. The claimant, a Christian chaplain at a private school, alleged religion and belief discrimination following the school’s treatment of him after he delivered sermons which furthered his Christian views, his beliefs opposing same sex marriage and sex outside marriage, and his ‘gender critical’ views. The ET was satisfied that the school had not harassed or discriminated against the claimant – their treatment of him was not because of his beliefs, but his manifestation of them, and it was not unreasonable for the school to object to that manifestation in circumstances where the school had received numerous complaints, had vulnerable LGBT+ students coming to terms with their sexual identity, had safeguarding obligations, and where they promoted difficult topics being discussed in a classroom context. The decision is only ET level and does not alter the law in this area, but is interesting as part of the ongoing debate and case law development in this area. (Randall v. Trent College)

Tribunal litigation – mitigation of loss: Claimants are expected to take reasonable steps to reduce financial losses arising out of alleged wrongdoing by their employer, and compensation can be reduced where a tribunal finds that there was an unreasonable failure to carry out such mitigation. In considering an appeal against a tribunal’s decision to award a 50 per cent reduction in compensation for a failure to mitigate, the EAT reminds us that the burden of proof is on the respondent employer to show that there was an unreasonable attempt to mitigate, and that the issue for the tribunal to determine when considering any reduction in compensation is when the claimant would have, if acting reasonably, found new employment and at what level of income. (Edward v. Tavistock and Portman NHS Trust)

Tribunal procedure – ‘unless’ orders: Last month we reported a case (Mohammed v. Guy’s and St Thomas’ NHS Foundation Trust) where the EAT held that it was wrong for the ET to have made an unless order that had the consequence of a claimant’s entire claim being struck out if she failed to provide information about certain parts of her claim. This month, in a different case (Rojha v. Zinc Media Group), the EAT has reached a different conclusion, saying that it was necessary and proportionate to make an order that her entire claim would be struck out if she failed to provide further particulars in respect of just some of her claims. It was perhaps relevant that her claims were assessed as having no reasonable prospects of success and the claimant had failed to attend some of the hearings, highlighting that the individual circumstances of each claim can be relevant to the fairness of case management decisions, rather than there being any blanket rule. In light of these recent decisions, it is timely that in a different case again (Minnoch v. Interserve FM Ltd), the EAT has provided some guidance and key points (see paragraph 33 of the judgment) when considering unless orders, setting out key considerations when making one, the importance of giving notice of non-compliance, and a careful assessment of the consequences of non-compliance. Each case will of course depend on its own facts, but this judicial guidance will be a helpful reference for parties and for the tribunals.

Tax – IR35: IR35 is a tax rule designed to stop the avoidance of tax and NICs by using an intermediary and requires that if, but for that intermediary, the contractor would be an employee of their client for tax purposes, tax and NICs must be made. In what is thought to be the first appeal decision looking at whether the contract for services was direct or through an intermediary, the first-tier tribunal (tax chamber) concluded that notwithstanding a partnership being an ‘intermediary’, there was a direct contract between the contractor and his client by virtue of the contracts being signed by him in his capacity as a partner. As such, IR35 did not apply. It is anticipated that HMRC will appeal this decision. Employers engaging contractors and considering IR35 should note that there is some new guidance (see below). (Linekar v. HMRC)

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