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Employment Case Law Update – September 2021

2 September 2021

Regular readers will know that here at Inspired Legal Services we like to stay up to date with the latest employment law cases, so that we can bring you the impacts these may have for you as employers.  Since our update, employment tribunals and the employment appeals tribunal have continued to be extremely busy. In this blog we look at key recent cases, and their potential implications, especially relating to Covid and following due process correctly.

Forstater v CGD Europe & Others

The case of Forstater v CGD Europe & Others relates to an employee whose contract was not renewed following complaints that she had made allegedly transphobic comments. The employee complained that she had been discriminated against based on grounds of belief under the Equality Act 2010; namely the beliefs that sex is unable to be changed and is not to be conflated with gender or gender identify.

The original employment tribunal case considered the requirement of any belief protected under the Equality Act be “worthy of respect in a democratic society, not be incompatible with human dignity, nor conflict with the fundamental rights of others”, and as such found the employee’s beliefs not to be protected. However, the subsequent employment appeal tribunal disagreed, finding that offensive views may still be subject to protection, and the employee was found to have been discriminated against.

In giving its judgement, the employment appeals tribunal highlighted that they were not seeking to take sides in any debate regarding gender identities or undermine the protections for people with the protected characteristic of gender reassignment under the Equality Act.

This case demonstrates that it is not always easy to determine if a belief is protected under the Equality Act, and that many may regard as unpalatable may still be protected. There is the potential that this question will arise again in relation to beliefs people may hold to their refusal of Covid vaccination. Let’s watch this space!

Somerville v Nursing and Midwifery Council 

In the case of Somerville v Nursing and Midwifery Council (NMC), the NMC sought to argue that because Somerville did not have a minimum degree of obligation (i.e. did not have to accept a minimum amount of work, and could withdraw from work accepted), that they did not qualify as a worker, and therefore were not eligible for statutory holiday. However, the employment appeals tribunal found that there was an overarching agreement for the provision of the claimant’s services, and that they did qualify as a worker (and, therefore, for the rights of a worker). This case has implications for employers seeking to determine the status of potential workers and their entitlements.

Accattatis v Fortuna Group and Gibson v Lothian Leisure

There have now been judgements in the cases of Accattatis v Fortuna Group, and Gibson v Lothian Leisure.  Both cases relate to the question of employees protecting themselves from a serious and imminent threat to health and safety. In both cases, the tribunals agreed that each employee had believed that Covid was such a threat. However, the tribunals found differently regarding the reasonableness of the employers’ actions in accommodating these concerns.

In the case of Accattatis v Fortuna Group, Mr Accattatis was concerned about commuting to work, and so the employer explored a range of options including holiday and unpaid leave for times when working from home or furlough was not appropriate.

Mr Accattatis refused these options, and it was therefore found that he was not unfairly dismissed.

However, in the case of Gibson v Lothian Leisure, when the employee raised concerns about PPE and Covid-secure measures, the employer behaved with a “shut up and get on with it” attitude.

These cases have been heard by employment tribunals only at this time, and therefore may be subject to appeal.

Miss Adrienne Mackie and Parker & Sons Ltd

https://assets.publishing.service.gov.uk/media/612dfb0ad3bf7f037b4bbc02/Miss_A_MacKie_v_Parker___Sons_Ltd_-_4107287.2020_-_Final.pdf

And finally, this is something we hear about a lot within our day-to-day business. This case was brought about that Miss Mackie was unfairly dismissed as a bar attendant. Miss Mackie worked part time at a bar/restaurant. There was a conflict of interest in hours, shift patterns and then Covid. Miss Mackie was placed on furlough. The business went into lock down again due to Covid in October. Due process and policy were not followed by the employer.

The employer had no HR support and to dismiss without any advance warning or consultation is clearly unfair. The employer did complete some research and accepted that she misinterpreted the position. That said, the court found that any employer would be expected to have at least some consultation with an employee before, by letter, intimating dismissal. The Judgment of the Employment Tribunal is that the Claimant was unfairly dismissed.

However, as employers continue to reckon with the impacts of Covid-19, it is useful to understand how tribunals are viewing the decisions employers have made during those exceptional times.

If you need any guidance and would like to discuss the implications of these outcomes on your business, please feel free to contact us on 0191 205 8020 and ask for Julie, for an initial conversation.

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