employment tribunal

Philosophical belief discrimination

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The Equality Act 2010 protects people from discrimination based on their philosophical beliefs. In order to be protected, the belief must be:

  • Genuinely held;
  • Be a belief not an opinion or viewpoint;
  • Concern a weighty or substantial aspect of human life;
  • Have attained a certain level of cogency, seriousness or importance (in a similar way to a religion);
  • And must be worthy of respect in a democratic society.

In the high profile case of Forstater v CGD Europe, an employment tribunal has looked at whether the philosophical belief that humans cannot change sex is protected by the Equality Act 2010. The employee was a consultant charity worker. She tweeted extensively (in a private rather than work capacity) on proposed changes to the Gender Recognition Act 2004 (GRA). One tweet read ‘men cannot change into women’. Other employees complained and her contract was not renewed. She brought a discrimination claim, saying her contract was not renewed because of her belief about sex change.

The employment tribunal found that the belief met the thresholds set out above save for one aspect: her ‘absolutist’ belief was incompatible with human dignity and the fundamental rights of others. Her belief meant that she would refer to someone by their birth sex even if that violated their dignity or created an intimidating or hostile environment for them. This belief was not worthy of respect. She did not get protection under the Equality Act 2010 and could not bring a discrimination claim.

The judge in this case said that campaigning against changes to the GRA and calling for spaces for women assigned female at birth is one thing but insisting on calling transwomen men is something else entirely. It is this violation of someone else’s dignity that stopped her belief being protected in law. This case is an employment tribunal decision and not binding on other courts. It is likely to be appealed though and any binding decision could have a significant impact on freedom of speech.

Astons Solicitors
18th January 2020

Unfair dismissal and extensions of time

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Most employment claims should be brought within a three-month time limit. If it is not ‘reasonably practicable’ for an employee to present his claim within the three-month time limit, an employment tribunal has the discretion to extend the time limit. There are two questions the tribunal must ask: was it reasonably practicable to lodge the claim within the time limit? If not, was it then lodged within a reasonable period? The ACAS early conciliation process provides a potential one-month extension of time following the conclusion of early conciliation. However, this only applies if ACAS were contacted within the initial three-month time limit. The EAT has looked at this issue in Pearce v Bank of America Merrill Lynch.

The employee was employed as Managing Director Head of Sterling Credit. He had been off sick since July 2017. He said his absence resulted from being treated badly because he blew the whistle on poor practice. He contacted solicitors in November 2017, two and a half months after the last ‘detriment’. The time limit for lodging a claim expired later in November. ACAS early conciliation started in December, outside the three-month time limit. Conciliation ended in January 2018. The employee didn’t lodge a tribunal claim until February 2018, a month after ACAS conciliation had ended.

Three month time limit

The employment tribunal accepted that it wasn’t reasonably practicable for the employee to lodge his claim within the initial three months due to illness. However, he did not lodge his claim within a reasonable period after that. The EAT agreed. Although the employee had been unwell within the relevant period, he had instructed solicitors. There was no reasonable explanation for the delay in contacting ACAS. There was no additional extension of time because the initial contact with ACAS had not been made within the normal three-month time limit. The month-long gap between ACAS conciliation ending and the claim being lodged was relevant. The employee’s solicitors were clearly relying on an extension of time which did not exist. There was no other explanation for the delay.

This is a win for the employer who now doesn’t have to face a legal claim (though the employee’s solicitors probably will). It is comforting for employers to see the strict test applied by the tribunals in granting extensions of time. Without a reasonable explanation for any delay, tribunals are entitled to reject a claim, even if it looks like a good one.

Astons Solicitors
November 2019

Employment Tribunal can hear discrimination complaints by a doctor against the GMC

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In Michalak v General Medical Council the Supreme Court held that it is permissible for employment tribunals to hear discrimination claims against qualification bodies such as the GMC.

Dr Michalak had been employed by an NHS Trust but was found to have been unfairly dismissed. Before the unfair dismissal was determined she had been referred, by the Trust, to the General Medical Council (GMC) which began fitness to practice proceedings. Dr Michalak then complained, in a separate tribunal claim that the GMC had discriminated against her.

Section 120(7) of the Equality Act 2010 prevents employment tribunal claims agains qualification bodies when “by virtue of enactment” their decision is subject to “proceedings in the nature of an appeal”.

The Supreme Court found that the employment tribunal did have jurisdiction to hear the claim as, in the context of this case, judicial review was not “in the nature of an appeal”. Discrimination complaints cannot be answered by looking at the reasons why a discriminator acted in a discriminatory manner and then deciding whether that then lay within the range of reasonable responses. It also found that as judicial review was originally a common law procedure it was, therefore, not a solution provided “by virtue of enactment”.

Written by

Lorraine Emery
16th November 2017

Reductions to basic and compensatory awards

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Was it unacceptable to reduce a compensatory award by 35% but not to also reduce the basic award?

In University of Sunderland v Drossou the Employment Appeal Tribunal held that Yes, it was unacceptable.

In this case the Claimant, a Senior Lecturer and Programme Leader, was dismissed following a restructure. The reason for dismissal was an irretrievable breakdown in working relationships for which the Respondent University said she was primarily to blame. As a result, she brought a claim of unfair dismissal (and other claims of race and disability discrimination).

The unfair dismissal claim was upheld by the employment tribunal, however, it was decided that the Claimant was not entirely blameless – she was somewhere between partly and equally to blame. Consequently, the compensatory award was reduced by 35%, but no reduction was made to the basic award. The University appealed and the Employment Appeal Tribunal upheld the appeal, and reduced the basic award by 35%.

In reaching its decision the EAT relied on the Court of Appeal case of RSPCA v Cruden, where it held that although the tests for reducing the basic and compensatory award were different, a differentiation between them would only be justified in exceptional circumstances. The EAT found that as the Tribunal had reduced the compensatory by 35% it was perverse not to also reduce the basic award by the same amount.

Written by

Edward Aston
4th August 2017

Update on Employment Law Reforms

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The following commencement dates for reforms under the Enterprise and Regulatory Reform Act 2013 have been confirmed.

25th June 2013

  • Many of the provisions relating to whistleblowing come into force (in particular, sections 17, 18 and 20). These provisions are significant because if the principal reason for a dismissal is that a worker made a protected disclosure, then the normal two year qualifying period and the cap on the compensatory award do not apply.
  • All hearings in the Employment Appeal Tribunal will be heard by a judge alone unless the judge directs otherwise.
  • The two-year qualifying period for unfair dismissal will not apply where the reason for the dismissal is, or relates to, the employee’s political opinions or affiliation.
  • The date for the annual index-linked increase in the compensatory award will change from February to 6th April, which means that the next increase will be 6th April 2014.
  • The Secretary of State will have the power to reduce the cap on the compensatory award, from the current £74,200 to the lower of a year’s earnings or the national annual median wage (currently approximately £28,000). If the employee’s annual earnings are more than £74,200, then the £74,200 cap will still apply.

29th July 2013

  • Fees will be implemented into the Employment Tribunal and Employment Appeal Tribunal and from this date, subject to the necessary Parliamentary approvals, all Employment Tribunal claims and Employment Appeal Tribunal appeals will be liable under the Fees Order and supporting rules to pay a fee or provide an application for fee remission against that fee under the HM Courts & Tribunals Service remissions scheme.
  • Mr Justice Underhill’s Tribunal procedural reforms come into force and are contained in The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. These new procedural rules stem from the major review carried out last year by Mr Justice Underhill of Employment Tribunals.

On or after 25th October 2013

  • The provisions relating to financial penalties on employers come into force in respect of any Tribunal claim submitted on or after 25th October 2013. In circumstances where an Employment Tribunal decides that an employer has breached any worker’s rights and considers that the breach has any “aggravating factor” then it may order the employer to pay a penalty of between £100 and £5,000 to the Secretary of State. If the penalty is paid within 21 days of the Tribunal’s decision being sent to the employer the penalty is halved.

The commencement dates for ACAS Early Conciliation and confidential pre-termination negotiations are still unknown but I will provide a further update on these dates in due course.

Written by Edward Aston 7th June 2013

Constructive Dismissal

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In the recent case of Logan v. Celyn House Limited the EAT considered whether the “principal reason” for the resignation needed to amount to a fundamental breach of contract for the claim of constructive unfair dismissal to succeed.

In summary, the Claimant was a veterinary nurse who resigned in response to a grievance decision which she found unsatisfactory. The grievance involved a number of matters, including bullying and a failure to pay contractual sick pay. The ET found that the bullying was a figment of her imagination but found that the failure to pay contractual sick pay was a fundamental breach of contract. The ET held that there was a breach of her contract and that it was a repudiatory breach. Notwithstanding this finding, the ET did not find that the Claimant had been constructively dismissed as the ET held that the “principal reason” for the resignation was not the non-payment of contractual sick pay but the complaints of bullying.

The Claimant appealed against the Tribunal’s decision. The appeal was allowed to proceed on one ground only, namely, that the ET approached the question of constructive dismissal in the wrong way by looking at the “principal reason” for the resignation.

The EAT held that the ET had been wrong to look at the “principal reason” for the resignation. The ET should have considered whether there was a repudiatory breach of contract in failing to pay the sick pay and if so, whether it was a reason for the resignation, not whether it was the “principal reason”.

The EAT held that as the Claimant resigned in part because of the failure to pay sick pay and as it was a repudiatory breach, her claim of unfair constructive dismissal succeeded.

Written by
Edward Aston
8th September 2012