Case law updates

COVID-19 – automatically unfair dismissal: There have been two more reported employment tribunal cases looking at whether dismissals are automatically unfair under section 100 of the Employment Rights Act 1996 where individuals are dismissed for taking steps to protect themselves or others from a serious and imminent threat to health and safety. Although in both cases the tribunal was satisfied the claimants reasonably believed that COVID-19 posed a serious and imminent danger to their health and safety at the time, the cases turned on whether the employer acted reasonably in trying to accommodate concerns and reduce the risks. In Accattatis v. Fortuna Group, the employer acted reasonably in suggesting an employee, who did not want to commute to work, take holiday or unpaid leave in circumstances where working from home was not feasible and furlough inappropriate, and so did not unfairly dismiss him when he refused either option. In contrast, in Gibson v. Lothian Leisure, an employer who took a robust ‘shut up and get on with it’ attitude when an employee raised concerns about the lack of PPE or COVID-secure measures prior to returning from furlough, in circumstances where he had concerns for his medically vulnerable father. Although these two cases turn on their facts, and arise from very early in the pandemic when the government was referring to the virus in the most serious of terms, they serve as a useful reminder that the reasonableness of an employer is significant when they are faced with employees who are reluctant to attend the workplace, something which will become more relevant as employers gear up to getting people back into work in the coming weeks and months.

Discrimination – philosophical belief: Overturning the employment tribunal’s decision, the EAT has held that the claimant’s gender critical views, including that sex is unable to be changed and not to be conflated with gender or gender identity, is a belief capable of protection under the Equality Act 2010. Whereas the tribunal had denied this protection on the basis that the belief failed the test of needing to be “worthy of respect in a democratic society, not be incompatible with human dignity, nor conflict with the fundamental rights of others” (one of five tests to be overcome), the EAT disagreed saying that beliefs of this nature did not deny trans persons their rights, and (perhaps controversially) suggested that only beliefs tantamount to Nazism or totalitarianism should fail this limb of the test. It is currently unclear if the EAT’s judgment will be appealed. The judgment makes clear that the EAT was not expressing any view on the transgender debate, nor that it denied trans persons protection from discrimination and harassment under the Equality Act 2010. Employers remain potentially liable for such acts against their trans workforce, but will also need to be mindful not to unlawfully discriminate against those employees who have gender critical views. This is an area where there is a clear potential for a conflict of opinion and belief, and employers should focus on creating a workplace which encourages staff to respect the views of others. [Forstater v. CGD Europe & others]

Discrimination – indirect sex discrimination: The EAT has held that it was appropriate to consider the concept of ‘childcare disparity’ (i.e., that the current societal norm is that women have greater childcare responsibilities than men) when assessing whether women were disadvantaged by a particular policy, in this case a policy to change working days from being fixed to flexible. The claimant was personally disadvantaged by the changes due to her childcare commitments, but the tribunal found there to be no group disadvantage because none of her team or colleagues were similarly disadvantaged. The EAT considered that the principle of childcare disparity should have been taken into account. However, the EAT also made it clear that although taking account of childcare disparity might be appropriate (as in this case), it will not always mean that group disadvantage is made out, and will instead depend on the policy, criteria or practice in question. [Dobson v. North Cumbria Integrated Care]