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Employment Case Law Update June 2021

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Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.

 

Unfair dismissal

Accattatis v Fortuna Group (London) Ltd

Mr Accattatis was employed by Fortuna Group, a UK company distributing PPE.

During the first lockdown, he made a request to work from home due to his concerns for his health when using public transport to travel to work. He also made multiple requests to be put on furlough, which were denied by his employer on the grounds that the business was providing an essential service.

Mr Accattatis then refused to attend work, because of his safety concerns about attending the workplace.

His employer subsequently dismissed him.

Mr Accattatis brought a claim for automatically unfair dismissal, under s100(1)(e) of the Employment Rights Act 1996.

For a section 100 claim to succeed, the employee must have reasonably believed there were circumstances of serious and imminent danger.

The employment tribunal found for the employer, holding that the dismissal was not automatically unfair. Mr Accattatis’ employer had offered him the option to take annual leave or unpaid leave during this time, but he had refused. This meant he had failed to comply with the requirement under the legislation to protect himself from any harm that he believed to exist.

Key takeaway for employers

While this decision is not binding, as case law relating to COVID health and safety dismissals continues to develop, it does provide helpful indication for employers to support with the COVID return to work and handling employee health and safety concerns.

 

Equality Act

Forstater v CGD Europe, Center For Global Development and Ahmed

In Forstater v CGD Europe, Center For Global Development and Ahmed, the Employment Appeal Tribunal made a landmark ruling on the question of whether ‘gender critical’ beliefs qualify as a ‘philosophical belief’ for protection under section 10 of the Equality Act 2010.

Ms Forstater brought a claim for unlawful discrimination on the grounds that her beliefs – that only two sexes exist, that men are adult males and women are adult females, and that it is sex and not gender that is fundamentally important – qualify as philosophical beliefs and as such as are protected under section 10 of the Equality Act 2010.

The case was initially heard by the Employment Tribunal, which decided against the claimant, stating her beliefs were ‘not worthy of respect in a democratic society’, and were therefore not protected.

The claimant appealed.

During a preliminary hearing, the EAT overturned the first tribunal’s decision and held that the claimant’s beliefs are protected. The judgment elaborated that claimant’s beliefs are consistent with the law on sex and gender and also widely shared, including amongst respected academics.

The decision followed the correct application of the Grainger test, which determines whether or not a belief is ‘worthy of respect in a democratic society’. The ruling means that the belief that a person’s sex is an immutable biological fact is protected under the Equality Act 2010.

A remitted hearing will deal with the matter of whether the claimant had in fact been discriminated against.

Key takeaways for employers

What constitutes ‘philosophical belief’ is not defined within the legislation, meaning case law is providing much-needed clarity as to what beliefs are covered and what are outside of its scope.

This decision now makes it clear that holding gender critical beliefs is a protected characteristic under the Equality Act 2010. As such, it is unlawful for employers and coworkers to discriminate against or harass an individual for holding or expressing such beliefs.

However, while the expression of such views may be protected, the decision does not mean those with such beliefs have carte blanche to ‘indiscriminately’ or ‘gratuitously’ refuse to use a trans person’s preferred pronouns, which may still constitute unlawful harassment.

 

Trade union & industrial action

Mercer v Alternative Future Group

Following the decision in Mercer v Alternative Future Group, workers now benefit from increased legal protection from detriment relating to trade union activities and industrial action.

The claimant, Ms Mercer, was the workplace representative for her trade union. She was suspended from work and faced disciplinary action for organising and participating in industrial action.

Ms Mercer brought a claim against her employer with the support of her union, Unison, on the grounds that she had been subjected to a detriment as a result of her trade union activities, contravening legal protections under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

According to the legislation, for protection to apply, the trade union activity must be carried out ‘at an appropriate time’. This effectively imposed a restriction that the employer’s consent was needed where action during working hours were concerned – which, in practical terms, was unlikely to be plausible.

The tribunal at first instance found this historical position to be too restrictive and interfered disproportionately with an individual’s right to Freedom of Assembly under the European Convention on Human Rights.

The tribunal held in favour of the claimant, confirming the protections against detriment as per s146 for workers taking industrial action.

The employer appealed, but the EAT upheld the decision of the first tribunal.

Key takeaway for employers

Employers are advised to ensure their management and handling of industrial relations and trade union activity take account of this ruling which has effectively increased the legal protections of workers to be able to take industrial action without suffering detriment.

 

Equal pay

K and others v Tesco Stores Ltd

In the latest of the wave of equal pay claims against retail giants, the European Court of Justice (ECJ) has made a ruling in favour of the claimants in the case of K and ors v Tesco Stores Ltd.

The case is not too dissimilar to the recent Asda equal pay claim. Tesco shop floor workers, who were predominantly women, were paid up to £3 an hour less than the distribution centre and warehouse workers, who were predominantly male.

Around 6,000 current and former Tesco shop floor workers brought an equal claim against Tesco on the basis of equal pay for work of equal value when compared to colleagues in its distribution and warehouse centres.

Tesco based their challenge on a technical discrepancy between EU and UK law.

Under EU law, Article 157 of the Treaty on the Functioning of the European Union (TFEU) states male and female workers must have their pay and conditions set by a “single source” for comparisons to be relied on for equal pay purposes.

However, under UK law, the Equality Act 2010 requires a more detailed assessment of workers’ contractual terms and conditions of the roles to be used as a comparator.

Tesco argued the workers could not rely on Article 157 because this concerned equal work, while the claimants’ claimed their work was of equal value to their distribution and warehouse comparators – which in effect are different categories.

To seek clarification on whether Article 157 could be relied on, the employment tribunal referred the case to the European Court of Justice (ECJ) prior to Brexit.

The ECJ held earlier this month that where pay conditions can be attributed to a single source, the work and pay of those workers can be compared, even if they work in different establishments. The ECJ also stated that the principle laid down by Article 157 can, post-Brexit, continue to be relied on directly by the UK courts when dealing with work of equal value claims.

The case now reverts back to the UK employment tribunal, to determine whether the work done by the workers and their comparators is in fact of equal value and the reasons behind the pay discrepancy.

Due to its complexity, it is expected to be several years before the case is concluded.

Key takeaways for employers

Following recent equal pay rulings, this case reinforces the position that the roles of shop floor workers can be compared with those of their colleagues in distribution centres.

The case will have a huge impact on UK supermarkets and their finances to meet substantial back pay liabilities and future equal pay levels.

The case also highlights that despite Brexit, the ECJ retains jurisdiction and EU law can continue to be relied on in the UK.

 

Need assistance?

If you have a question about employment case law and the impact of tribunal and court decisions on your business, DavidsonMorris’ experienced employment lawyers can help. Working closely with our specialist human resource colleagues, we offer a holistic advisory and support service for employers encompassing both the legal and people risks of workforce management. Speak to our experts today for advice.

 

Last updated: 23 June 2021

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