Member Article

This article discusses the key employment law cases since October 2023 and what employers can learn from them. This follows our previous article in which we discussed relevant cases that arose during the summer months.

Policy and procedural failures in terms of gender reassignment

The case of Miss AB v Royal Borough of Kingston upon Thames related to a trans woman who succeeded in her claim for discrimination on the grounds of gender reassignment, after her employer failed to respond to her transition appropriately. Anonymised in the Employment Tribunal judgment as Miss AB, the Claimant had given her employer eight months’ notice of her transition. The Employment Tribunal found that Kingston Council had treated Miss AB less favourably; there were several policy failures including (1) a failure to update her details (including her name) on their internal system; and (2) delays to rectify the issue (over almost two years). The Claimant also raised safety concerns about highway lighting schemes as part of her work but was reprimanded in a way that the Employment Tribunal considered to be ‘derogatory’ and ‘unprofessional’. There was also an incident in which the Claimant received a Post-it note which had been attached to her locker, with her old-name crossed out and replaced with her subsequent name following her transition. This was, according to the Claimant part of the ‘witch-hunt’ she had faced in the workplace, including having her duties reduced. The Employment Tribunal awarded her £25,400 (being a middle-band Vento award) as compensation for her injury to feelings. Notably, Miss AB remained employed with Kingston Council at the point of judgment. 

In reaching its finding, the Employment Tribunal noted that:

• a series of Kingston Council’s policies relating to Equality & Diversity and Dignity at Work had not been updated for several years and were not compliant with current legislation
• there had been a severe lack of action from Kingston Council (as a local authority) in regards to this matter
• Kingston Council had failed to support the Claimant which was considered to be incongruous given the size and scale of the council as an employer of 4,500 people, with an HR team of 60 people
• Kingston Council had failed to apologise to Miss AB or acknowledge any wrongdoing

This case is a helpful reminder that employers must remain complaint with current legislation and ensure that policies and procedures are reviewed and updated to reflect any changes. Employers will also do well to act promptly when receiving complaints, either informal or formal, and are obliged to investigate matters promptly and thoroughly.

Holiday Pay in the Supreme Court

The notoriously complex subject of holiday pay has reappeared again, this time in the Supreme Court with the case of Chief Constable of the Police Service of Northern Ireland (“PSNI”) and another v Agnew and others (Northern Ireland). Over 3,000 PSNI staff brought a claim for a series of underpayments of holiday pay. The PSNI accepted that they had paid holiday pay at basic rate, but this case hinged on the period of underpayments for which employees could claim. This case journeyed through the Industrial Tribunal in Northern Ireland, to the Northern Ireland Court of Appeal (NICA), finally reaching the Supreme Court in December 2022, with the judgment being given on 4 October 2023. The Supreme Court held that PSNI staff were entitled to claim holiday pay provided such underpayments were linked factually as a series of deductions. This removes the previous precedent set by Bear Scotland v Fulton, which indicated that a series of unlawful deductions can be broken by a three-month period during which either no holiday is taken, or holiday is paid at the correct rate. Employees in Great Britain can back claim for such underpayments from the previous two years, but employees in Northern Ireland can potentially claim for underpayments dating back to 1996, when the Working Time Directive should have been introduced. 

The Government has since produced draft regulations for further changes to the holiday pay system which go some way to limit the impact of this decision for employers in Great Britain. For more detail on this, please see our recent article.

Protected philosophical beliefs: an update

Employers should be aware of the potential ramifications arising from the way employees manifest their philosophical beliefs. The case of Corby v Advisory, Conciliation and Arbitration Service concerned a Claimant who was employed as a senior mediator at ACAS. The Claimant opposed the Black Lives Matter movement and claimed that it portrayed white people as racists. He published several posts on a private workplace forum that suggested that racism could be tackled by learning from Martin Luther King’s proposal to consider character, rather than race. ACAS requested that the Claimant remove these posts to which the Claimant averred he held a genuine opposing view to the critical race theory.

The Employment Tribunal held that this belief satisfied the Grainger test (as set out in the decision of Grainger plc v Nicholson), which established that to be a protected belief, a belief must be:

• Genuinely held
• A belief rather than a mere opinion or view based on the present state of information available
• A belief relating to a weighty and substantial aspect of human life and behaviour
• Have a certain level of cogency, seriousness, cohesion and importance
• Be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others

While the Claimant’s claim also included his views on feminism in the context of male suicide rates, the Employment Tribunal determined that his beliefs with regard to critical race theory qualified for protection as a protected belief. It was, in the view of the Employment Tribunal, well-informed; the Claimant was married to a black woman, he had read widely about racial discrimination, and had considered his position in relation to ethnocentrism and ethnonationalism, neither of which he considered applicable to his belief.

This case highlights that beliefs held by employees and aired on public platforms may be protected by existing case law and legislation relating to discrimination. Although this was a first-instance decision made at the preliminary hearing stage, employers must be careful to consider all beliefs held by employees and how this may affect them at work, no matter how polarising they may appear to be in the current social context.

Trade union membership in the gig economy

The Supreme Court has given their judgment on collective bargaining in the gig-economy in the case of Independent Workers Union of Great Britain v Central Arbitration Committee. This case was established following Deliveroo’s rejection of a formal request from the Independent Workers Union of Great Britain (IWGB) to recognise Deliveroo riders as union members in Camden and Kentish Town in London. The IWGB subsequently appealed to the Central Arbitration Committee (CAC) under the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”), in which one of the conditions is that the individuals in question must be considered workers under TULRCA. The CAC established that Deliveroo riders were not workers within the TULRCA definition, and also rejected the IWGB’s argument that if such individuals were not recognised as union members, their rights relating to freedom of peaceful assembly and association were breached under Article 11 of the European Convention on Human Rights (ECHR). The IWGB appealed by way of judicial review, and the case in relation to Article 11 rights journeyed through the High Court and the Court of Appeal before reaching the Supreme Court. The Supreme Court has dismissed the IWGB’s appeal in their judgment of 21 November 2023; Deliveroo riders do not benefit from Article 11 collective bargaining rights and are therefore not entitled to trade union membership. The Supreme Court’s reasoning centred on the following facts:

• there was no genuine employment relationship between Deliveroo and the riders;
• their contracts contained substitution clauses in which there was no requirement for personal performance;
• riders could freely accept and refuse work according to when was convenient for them; and
• riders could work for Deliveroo’s competitors should they choose.

While this case follows a series of cases in relation to those working in the gig-economy, it is notable that this judgment appears to deviate somewhat from previous discussions. Employers operating in this sector must remain alive to updates with regard to employment status and ensure that they remain compliant with their obligations in a changing legal landscape.

 

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