Read on for our monthly digest for employers on upcoming employment law changes and key, recent employment tribunal cases.
Employment Tribunal Procedures
Ridley and others v HB Kirtley t/a Queen’s Court Business Centre
Three claimants sought to appeal decisions made by the Employment Tribunal, under the provisions of the Employment Appeal Tribunal (EAT) Rules 1993. While the claimants submitted their notices of appeal within the required 42-day period, they failed to include the grounds of appeal as mandated by rule 3(1). The EAT informed the claimants of this omission, prompting them to submit the necessary documents, albeit after the 42-day deadline. Consequently, they applied for an extension of time, which was denied by the Registrar, and a subsequent appeal to a judge was also refused.
The claimants then appealed the EAT’s refusal to extend the time limit to the Court of Appeal.
The Court of Appeal determined that the EAT has broad discretion under rule 37(1) to extend time limits. The Court noted that time limits should only be relaxed in ‘rare and exceptional cases’ with a ‘good excuse’ for the delay (United Arab Emirates v Abdelghafar). The Court clarified that these guidelines were meant to assist in exercising discretion, not to impose rigid rules, and that a mistake might constitute a valid reason for a delay.
The Court also highlighted the importance of distinguishing between a claimant who submits a notice of appeal along with most required documents within the time limit and one who submits nothing until after the deadline.
The Court allowed the appeals. The EAT is reconsidering the extension of time.
Employer Takeaways
The EAT has a broad discretion to extend time limits, but this is generally reserved for rare and exceptional cases. While mistakes may be considered a good reason for delays, this will be evaluated on a case-by-case basis.
As such, it remains important to ensure all necessary documents are submitted within the stipulated time frame when appealing to the EAT, including the grounds of appeal as required by rule 3(1) to avoid procedural delays.
Discrimination & Gender Critical Beliefs
Bailey v Stonewall Equality Limited and others
The claimant, a tenant of Garden Court Chambers (GCC), was part of the Diversity Partners programme run by Stonewall. She expressed gender-critical views and tweeted against what she perceived as Stonewall’s ‘trans-extremism’, supporting the LGB Alliance, which promotes gender-critical principles. These tweets led to complaints to GCC, including one from Stonewall, alleging that her views were incompatible with trans rights. GCC publicly announced an investigation and subsequently concluded that two of the claimant’s tweets should be deleted.
The Employment Appeal Tribunal (EAT) examined section 111 of the Equality Act 2010, which prohibits instructing, causing, or inducing someone to discriminate against, harass, or victimise another person, or attempting to do so. The tribunal determined that the investigation and its outcome were detriments suffered by the claimant due to her protected gender-critical beliefs. However, it did not find Stonewall liable for inducing the discrimination.
The claimant appealed this decision regarding Stonewall’s liability. The EAT dismissed the appeal and clarified the requirements for causing or inducing claims under section 111 of the Equality Act: that the claimant must demonstrate that, without the intervention of person A (Stonewall), person B (GCC) would not have committed the act of discrimination, and that it must be fair, reasonable, or just to hold person A (Stonewall) accountable for the discrimination, considering all relevant facts.
The EAT concluded that responsibility for the discriminatory handling of the complaint rested solely with GCC. Although Stonewall’s complaint triggered the situation, and there was a connection between the claimant’s protected views and the complaint, it would not be reasonable to hold Stonewall liable for the discriminatory outcome.
Employer Takeaways
This decision emphasises that liability for discriminatory actions primarily lies with the entity making the decision, and not necessarily with those who make complaints or raise concerns.
As case law in the area of gender critical beliefs continues to emerge, employers are advised to ensure they understand the provisions under Section 111 of the Equality Act 2010 against instructing, causing, or inducing discrimination, harassment, or victimisation, and what these mean in practical terms. This means recognising that gender-critical views are protected under the Equality Act, and any actions taken against individuals holding such views must be carefully considered.
When receiving complaints, especially involving protected beliefs, ensure that the investigation process is fair and non-discriminatory. Ensure that investigations into complaints are conducted impartially and that outcomes are based on fair and reasonable assessments.
Part-Time Worker Rights
Augustine v Data Cars
The claimant, a part-time taxi driver, was required to pay a flat weekly circuit fee of £148 to the respondent, the same amount paid by all drivers regardless of hours worked. The claimant alleged discrimination against part-time workers, arguing that paying the full fee each week was unfair to part-time workers like himself.
The tribunal dismissed the claim, ruling that the claimant had not demonstrated less favourable treatment compared to full-time workers, as both were subject to the same fee.
The tribunal also concluded that even if the claimant had established less favourable treatment, the circuit fee was not charged solely because he was a part-time worker, and therefore his claim would still fail.
The Employment Appeal Tribunal (EAT) disagreed with the tribunal’s reasoning but upheld the decision. The EAT noted that by charging a flat fee to all drivers, the respondent was not treating part-time and full-time employees equally. The claimant, being part-time, was effectively earning less than his full-time counterparts after deducting the fee from his take-home pay.
The EAT also considered whether the less favourable treatment was due to the claimant’s part-time status. Although the EAT believed the correct test should be whether part-time status was an effective cause of the treatment, it was bound by the judgment in McMenemy v Capita Business Services. This case established that less favourable treatment must be solely on the grounds of being a part-time worker for a claim to succeed.
As such, the tribunal had correctly applied the ‘sole reason’ test, despite an error in its application, and this did not change the outcome: the claim failed.
Employer Takeaways
Employers are required by law to ensure that part-time and full-time workers are treated equitably, particularly regarding deductions and fees, to avoid unintentional discrimination. Fundamentally, this requires an understanding of the legal standards for part-time worker discrimination claims. The ‘sole reason’ test requires that less favourable treatment must be solely because of part-time status for a claim to succeed.
Also, regularly review and adjust policies to ensure they do not inadvertently disadvantage part-time workers. For example, charging uniform fees to all workers, regardless of hours worked, may result in proportionately less pay for part-time workers, potentially leading to claims of less favourable treatment.
Unfair Dismissal – Covid Vaccinations
Masiero & Others v Barchester Healthcare PLC
AIn early 2021, Barchester Healthcare PLC introduced a policy mandating staff vaccination against Covid-19, before it became a legal requirement.
The claimants, who refused vaccination, were dismissed for Some Other Substantial Season (SOSR). Their appeals centred on Human Rights considerations and the tribunal’s approach to SOSR dismissals.
The Employment Appeal Tribunal (EAT) noted that Barchester’s policy did not enforce mandatory vaccination (i.e., forced medical treatment). Instead, the policy aimed to protect residents’ right to life under Article 2 of the European Convention on Human Rights (ECHR). The tribunal was justified in finding that the interference with the claimants’ Article 8 rights—the right to a private and family life—was warranted. The policy did not deprive the claimants of ‘free and informed consent’ to medical treatment, as they were not forced to undergo vaccination.
The tribunal was also correct to consider case law on Human Rights objections to vaccination, acknowledging the ‘clash of rights’ between the right to life and the qualified rights under Article 8. It was within its rights to conclude that even a small reduction in the risk to life from the vaccination policy could outweigh the claimants’ Article 8 rights, meaning the dismissals did not breach Article 8.
In terms of SOSR dismissals, the tribunal determined that the employer acted reasonably in dismissing the claimants. The tribunal must consider all relevant factors specific to each case, rather than following a predetermined ‘checklist’ of factors, as the claimants argued. The tribunal did not err by failing to consider a particular range of factors, thus deciding the dismissals were fair.
Employer Takeaways
This decision confirms that while implementing health policies, employers must balance the right to life with employees’ qualified rights under Article 8. Interference with these rights can be justified if it serves a significant protective aim. This means employers can implement vaccination policies to protect the health and safety of their workforce, even before legal requirements are established, provided they are justified and proportionate.
However, policies should respect employees’ right to free and informed consent regarding medical treatments, avoiding mandatory enforcement.
Employers must ensure that dismissals for refusing to comply with health and safety policies are reasonable, considering all relevant factors specific to the case.
Tribunals will consider case-specific factors rather than a fixed checklist when assessing the fairness of dismissals, and employers should prepare to demonstrate the reasonableness of their actions in each individual case.
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Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
