Case law updates

Discrimination – gender reassignment: A transgender woman has succeeded with parts of her claim for gender reassignment discrimination after being subjected to transphobic abuse and having been asked questions which the ET considered a cisgender woman would not have been asked. The case raises an interesting question about the correct comparator in direct discrimination cases of this nature (and we could perhaps expect an appeal over whether a cisgender woman was the correct comparator in this case). (V v. Sheffield Teaching Hospitals)

Discrimination: The Employment Appeal Tribunal (EAT) has dismissed claims for disability discrimination and indirect sex discrimination arising from an employer’s policy during the COVID-19 pandemic, on the basis that there was neither any ‘unfavourable treatment’ nor any ‘disadvantage’. The policy in question allowed employees to receive paid leave on an indefinite basis if they were unable to work because they were shielding or for childcare reasons, subject to them having first exhausted any accrued annual leave or time off in lieu (TOIL). The claimants argued that the inability to choose when to take annual leave or TOIL time was discriminatory, but the EAT concluded that the conditions for entitlement to the special leave did not detract from the favourable nature of the policy. (Cowie and others v. Scottish Fire and Rescue Service)

Recruitment: An individual who successfully worked as a CEO for over 10 years after lying about his qualifications and experience has had a confiscation order for some of his earnings from that role reinstated by the Supreme Court. He had pleaded guilty to obtaining a pecuniary advantage by deception and fraud over five years ago (resulting in a two-year prison sentence), but recovery of some or all of his earnings has worked its way through the court system, with an original confiscation order revoked by the Court of Appeal before being reinstated by the Supreme Court. The confiscation order is for approximately £100,000, a fraction of his net earnings over his time in post but considered to be the proportionate amount after factoring in what he might have earned if the fraud had not occurred. This is an extreme example of the consequences of an applicant being dishonest during a recruitment exercise and highlights the importance of employers having robust vetting processes in place to validate the accuracy of a candidate’s purported qualifications and experience. (R v. Andrewes)

Tribunal procedure – anonymity: The EAT has ordered indefinite anonymity of a claimant’s former female colleague who was neither a party to nor a witness in the proceedings, but against whom the claimant had made allegations of sexual misconduct that had been found to be untrue. The claimant was neither credible nor reliable as a witness, and he had demonstrated a malicious intention to destroy his colleague’s reputation. In all the circumstances, her right to a private life was engaged and outweighed principles of open justice and the claimant’s rights to freedom of expression. The order not only anonymises her in the judgment but also controls public access to documentation and prevents any disclosure of her identity by the claimant or by anyone else. (Piepenbrock v. LSE)

Tribunals – unconscious bias: In an unusual appeal case considering the conduct of the employment tribunal panel, the EAT concluded that there had been a real risk that the ET panel had been unconsciously influenced by their negative view of the claimant when dismissing his claim for victimisation. The panel was heavily critical of the way the claimant (a litigant in person) conducted his claim, referring to difficult and challenging behaviour in strong and personal terms. While ETs have to make findings of fact – of which credibility of a witness forms a part – in this case, the EAT expressed concern at the unkindness shown to the claimant at the ET hearing, and, recognising too that litigants in person can lack objectivity and emotional distance from their case, felt that the early poor impression the ET panel had formed of the claimant had influenced their judgment. The case has been remitted for a rehearing by a different tribunal panel. (Laing v Bury and Bolton Citizen’s Advice)

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