Employment Case Law Update September 2022

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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.

 

Religious discrimination

Mr E McClung v Doosan Babcock Ltd and others

Mr McClung, from Bonnybidge near Falkirk, had carried out work for energy construction firm Doosan Babcock via recruiters NRL between January to June in 2019. He lost work as a contractor, which he claimed was as a result of prejudice against him because of his support for Rangers Football Club.

He initially brought a claim for unfair dismissal, but the tribunal held he was not technically employed at either company.

He then brought a claim for unlawful discrmination against Doosan Babcock and NRL for £80,000. He claimed that his support for Rangers FC was such a vital part of his existence that it qualifed as a philosophical belief under the Equality Act and as such was a protected characteristic.

The tribunal found against the claimant, holding that following a football team cannot be deemed as a protected characteristic like religion.

The tribunal panel ruled that Mr McClung’s football support did not satisfy four of the five tests under Nicholson v Grainger so as to be considered a true philosophical belief protected under the law.

Instead, Mr McClung’s support for Rangers was found to be “akin to support for a political party” and that previous cases had made clear a particular political affiliation does not constitute a philosophical belief.

Judge Lucy Wiseman ruled that being a football fan is merely “a lifestyle choice” and “does not represent a belief as to a weighty or substantial aspect of human life”.

 

Unfair dismissal

Tijani v The House of Commons Commission

The claimant was dismissed for consistently being late, for which she had received multiple written warnings.

In the dismissal letter, the respondent cited the final, live written warning, and referred to more than 50 instances of lateness since that warning had been issued.

The claimant brought a claim for unfair dismissal, which was rejected at first instance.

The claimant appealed on the grounds that the ET had not identified or tested evidence that the claimant had been treated differently from others in the same material circumstances; and that the ET had not determined the nature and extent of the alleged misconduct and the appropriate reasonable range for sanction.

The EAT agreed with the tribunal that the claimant had been fairly dismissed.

The EAT found no flaw in the ET’s justification that the employer need not prove that persistent tardiness had a particular knock-on effect. However, if they were mistaken, in general, when a person receives an unappealed final written warning due to persistent lateness and is warned that such further conduct may result in dismissal, he or she is clearly on notice as to the consequences, as such rendering the need for any such explanation void.

On the claimant’s second ground, it was obvious that the claimant had been unable to give examples of any individuals with a similar track record of lateness to her own and there was no reason for the claimant to have been singled out for further proceedings.

 

Reasonable adjustments

Gillespie v Guy’s & St Thomas’ NHS Foundation Trust

The claimant, a nurse, took time off work due to a serious illness that kept her from being able to stand for longer than two to three minutes at a time or engaging in physical labour.

A redeployment registration form was sent to the claimant by the respondent.

The claimant failed to send the paperwork back to the respondent, according to the ET’s findings.

A sickness absence meeting was then held in the claimant’s absence.

The claimant subsequently complained by email to the respondent that no communication had been made regarding the potential for redeployment.

The claimant then resigned and brought a claim against the respondent.

The claimant told the ET that the respondent had not spoken with her about the redeployment, which amounted to failing to make reasonable adjustments.

Given the content of the Occupational Health report, which suggested a sedentary, alternative role should be considered, the respondent’s PCP requirement that the employee be fit and well enough to perform the relevant duties placed her at a significant disadvantage in comparison to those who did not have a disability.

If the respondent had actively engaged the redeployment provision in the sickness absence policy, the claimant might have been able to return to work.

The claimant was likely to have been dismissed on the basis that she was unable to execute her duties as a result of the respondent’s refusal to make reasonable adjustments.

The tribunal denied her claim and she appealed.

The appeal was accepted by the EAT and the case has been remitted to the same employment tribunal to determine the claim. The EAT held that the employment tribunal will have to consider whether the PCP of “requiring the Claimant to be fit and well enough to perform her contractual duties” was applied to the claimant, whether it placed her at a substantial disadvantage in comparison with persons who are not disabled and, if so, whether it would have been reasonable to redeploy the claimant to some alternative role because there was a prospect that she would have been able to undertake it.

 

Acas Early Conciliation

Clark & Ors v Sainsburys Supermarkets Ltd and Lloyds Pharmacy Ltd

The claimants, who hold a range of positions, first filed claims for equal compensation in 2015 using multiple claim forms to submit the claims. The Acas Early Conciliation requirements were met by each of the claimants. However, at one of the preliminary hearings in 2020, the respondents raised the issue that each claimant requires an EC number.

As there is only one space on the claim form to input an EC number next to each respondent, the claimants had simply entered one EC number on each multiple form.

The claimants argued that just one EC number must be present on the form in order to comply with Rule 10 of the Employment Tribunal Rules of Procedure 2013.

The claims brought by claimants whose names did not appear on the EC Certificate connected to the EC number on the multiple claim forms were rejected by the tribunal.

On appeal, the EAT determined that the tribunal had made a mistake and reinstated all of the claims that had initially been rejected. It held that the multiple claim forms did not require the EC numbers of each claimant and that it was sufficient to have one EC number on an EC certificate that listed the name of one of the Claimants in the multiple.

However, the EAT also stated that while not a requirement, it is “good practice” to include write all the EC numbers for all claimants on a multiple claim form as it would aid the employment tribunal and lessen the chance of any problem concerning EC.

 

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: 27 September 2022

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

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

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