Case law updates

Disability discrimination – long Covid: An Employment Tribunal (ET) has found an employee suffering with long Covid to be disabled for the purposes of the Equality Act 2010. Although not all long-Covid sufferers will be disabled, it is a reminder that the associated symptoms are potentially capable of meeting the definition. In this case, it is also noteworthy that the tribunal was satisfied that the test of disability was made out, notwithstanding that two occupational health reports obtained by the employer suggested otherwise. (Burke v. Turning Point Scotland)

Discrimination arising from disability: The Employment Appeal Tribunal (EAT) has concluded that the decision to dismiss a disabled employee after a period of prolonged sickness absence was discrimination arising out of disability, with the dismissal being a disproportionate response to the circumstances. The claimant suffered from chronic migraines, anxiety and depression which she claimed were exacerbated by bullying and harassment by a colleague. Although she trialled working at a different location, the EAT was critical that her employer failed to implement the trial properly or evaluate its success before moving to dismiss, and could not objectively justify its decision to dismiss. This case acts as a reminder that before moving to dismiss employees protected by UK disability law, alternatives to dismissal should be considered, and employers must be in a position to justify how their decisions meet any legitimate aims relied upon. (DWP v. Boyers)

Discrimination – philosophical belief: What amounts to a protected ‘philosophical belief’ under the Equality Act 2010 can often be difficult to ascertain. Supporting previous decisions, a recent London Central ET case has confirmed that a belief in ethical veganism can amount to a protected belief. However, it ruled that the claimant was not discriminated against when she was dismissed from her work as a veterinary nurse after a rescued sick turkey was found at her flat. The ET decided that a belief that there was a moral obligation to take positive action to reduce animal suffering, including trespass on property and removal of animals, was not a protected ‘philosophical belief’. (Miles v. Royal Veterinary College)

Discrimination – philosophical belief and transgenderism: In an important philosophical belief claim this month, the EAT has held that a Christian doctor’s belief that a person cannot change their biological sex, and who did not believe in transgenderism, was protected under the Equality Act 2010. However, his employer’s actions in response to his refusal to use the preferred pronouns of service users were found not to be acts of direct or indirect discrimination, nor harassment. His employers had considered ways to accommodate the doctor’s beliefs, and could objectively justify their actions on the basis that they provided a service promoting equal opportunities, and wanted to ensure transgender service users were treated with respect. (Mackereth v. DWP)

Constructive unfair dismissal: It is well established law that in an unfair dismissal claim, the employee’s resignation can be in response to the employer demonstrating an intention not to comply with a term of the contract of employment which is so serious that it goes to the root of that contract. The EAT has provided a useful reminder that once a fundamental breach of contract is established, whether the employer intended to commit a fundamental breach and why the employer breached the contract is irrelevant. In this case, the claimant was denied company sick pay in circumstances where the employer was suspicious that absence was to avoid disciplinary proceedings, but where there was no investigation into the employer’s suspicions. The non-payment was deemed a fundamental breach of contract, and it was not relevant that the employer’s reason for withholding pay was to encourage the claimant to take part in the internal process, rather than ending the contract of employment. (Singh v. Metroline West)

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