Case law updates 

COVID-19 – pregnancy discrimination: The employment tribunal has dismissed a pregnant worker’s claim of discrimination and victimisation after being sent home from work by her employer at the start of the pandemic over concerns for her and her unborn baby’s health. A risk assessment, informed by government and public health guidance at the time, had been completed appropriately and it was reasonable for the worker’s employer to act as they had in response to the risks identified. The worker was also not left out of pocket financially. Although an unbinding decision, the case is a useful reminder of an employer’s duty to carry out risk assessments on pregnant staff and that in certain circumstances it will be appropriate to medically suspend them from duties without this being discriminatory. (Prosser v. Community Gateway Association)

Discrimination – sexual orientation: In an interesting case highlighting the challenges where two protected characteristics conflict, and overturning an earlier decision, the Court of Appeal has held that an independent fostering agency who restricted carers to Evangelical Christians were unlawfully directly discriminating on grounds of sexual orientation by including rules that carers also refrain from homosexual behaviour. While the evidence was that homosexuality is generally incompatible with the Evangelical Christian faith, the court was clear that this did not mean that religious discrimination and sexual orientation discrimination could be equated – as sexual orientation was an independent protected characteristic, the discrimination issues should be looked at separately.  The Court also considered that the rules restricting homosexual behaviour could not, on the facts, be objectively justified. (R (Cornerstone Fostering) v. Ofsted)

Employment tribunals – anonymity orders: An EAT decision confirms that anonymity orders should be considered on application by anyone named in a judgment even if they are neither a party nor a witness in the proceedings. In this case, the individual was named in relation to allegations of misconduct, and the EAT concluded that the individual’s right to a private life and protection of her reputation under article 8 of the European Convention of Human Rights was engaged to the same extent as if she had been a party or witness. Although anonymity orders can be difficult to obtain, this case is helpful to confirm that applications of this nature should be considered on their merits irrespective of the role the applicant plays in the proceedings. (TYU v. ILA Spa)

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