HomeInsightsWorked Up, your monthly employment law lowdown – August 2022

Welcome to the August edition of Worked Up, a veritable lollapalooza of employment law news.

From strikes to sunshine to England’s first football triumph in most people’s lifetimes, this certainly has been a summer for the record books. As temperatures continue to soar across the UK, things have also been heating up in the courts as several key judgments have been handed down in the Court of Appeal this month which we’ll touch on in this edition.

Speaking of rising heat, perhaps in comradery with those employees who tamper with office air cons to bring the temperature down to a sensible 20 degrees Celsius, unions have called for a legal limit for the maximum temperature in the workplace. While there is no maximum temperature enshrined in the law, the Workplace (Health, Safety and Welfare) Regulations 1992 does place a legal obligation on employers to provide a “reasonable” temperature workplace, which may vary based on the particular circumstances of the work environment.

In this month’s edition, we cover the importance of documenting the reason for dismissal in whistle-blower cases, discuss the application of the “fifth element” (sans Bruce Willis, sadly) when considering whether a religious or philosophical belief is protected, examine the latest Court of Appeal decision in the ongoing Tesco case concerning retained pay and look at the widely reported case of Bailey v Stonewall and others and its impact on the protection of gender critical beliefs.

If you would like to discuss any of the below updates, please do get in touch. Alternatively, if you would like to receive these updates directly to your inbox, please subscribe here.

Kong v Gulf International Bank (UK) Ltd [2022] EWCA Civ 941 (CA)

The third instalment of Kong vs Gulf(zilla) is finally here as, following our last update on this case in October 2021, the Court of Appeal has recently weighed in on the EAT’s decision on this whistleblowing case.

The Claimant, Ms Ling Kong, had made protected disclosures to the Respondent’s Head of Legal (Ms Harding) and later talked with Ms Harding about her protected disclosure. After this conversation, Ms Harding complained to HR that her professional integrity had been questioned during this meeting and that she could no longer work with Ms Kong. The Respondent later dismissed Ms Kong on the grounds that her behaviour, manner and approach when interacting with her colleagues made others not want to work with her. Ms Kong subsequently brought claims for ordinary unfair dismissal, automatically unfair dismissal by reason of protected disclosures, detrimental treatment by reasons of having made protected disclosures and wrongful dismissal.

The EAT upheld that Ms Kong had been unfairly dismissed but rejected her protected disclosure detriment and dismissal claims. While the tribunal held that her conduct when making the protected disclosures had been broadly reasonable, Ms Kong’s claim that her dismissal had been automatically unfair could not succeed as the Respondent’s decision-makers believed that she had acted unreasonably.

On appeal, the Court of Appeal (“CoA”) agreed with this decision. The main issue for the CoA was whether Ms Kong was subjected to a detriment on the grounds that she made a protected disclosure. The critical question was, therefore, what was the reason in the mind of each relevant decision maker when deciding to dismiss Ms Kong. In determining this question, the CoA held that the tribunal was correct in finding that the reason for dismissal in the minds of the decision-makers (i.e., the manner in which Ms Kong made the protected disclosures) could be properly separable from the making of the protected disclosures.

The CoA’s decision has widespread implications on the protections for whistle-blowers, so much so that Protect, the UK’s whistleblowing charity, intervened in this case as a third party. Employers may be able to defend an automatically unfair dismissal claim even if an employee’s conduct when making a protected disclosure is not objectively unreasonable, provided that the employer’s decision-makers subjectively believed that how the disclosures were made was unreasonable. In this case, the employer was able to evidence its reasons for Ms Kong’s dismissal, which were found to be unrelated to the specific protected disclosure, and Ms Harding was not involved in the decision to dismiss Ms Kong. While taking steps to treat protected disclosures as a separate issue when deciding to dismiss or treat whistle-blowers detrimentally is helpful, whistleblowing cases are highly fact specific. It is therefore recommended that employers seek legal advice when taking action against an employee who has made protected disclosures.

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Mackereth v DWP [2022] EAT 99

In this case, the Employment Appeal Tribunal (“EAT“) held that a Christian doctor was not discriminated against for refusing to use the preferred pronouns of transgender service users.

The Claimant, Dr Mackereth, applied to work as a health and disabilities assessor at the Department for Work and Pensions (“DWP“). This role involved assessing claimants for disability-related benefits, including conducting face-to-face assessments and preparing written reports. During his induction course, Dr Mackereth was informed that it was DWP’s policy to always refer to transgender individuals by their presented gender and preferred name. While Dr Mackereth did not object to using an individual’s preferred name, due to his religious belief, he could not use pronouns or titles inconsistent with birth gender. His employer considered potential accommodations for his beliefs, but none were deemed practicable. Dr Mackereth subsequently left his employment and brought claims for direct and indirect discrimination and harassment, relying upon the protected characteristic of religion or philosophical belief under section 4 of the Equality Act 2010.

The EAT dismissed the appeal and upheld the employment tribunal’s decision, finding no discrimination (whether direct or indirect) or harassment on the facts. However, the EAT held that the tribunal had erred in finding that Dr Mackereth’s beliefs were not protected by the criteria set out in Grainger PLC & Others v Nicholson EAT/0219/09. Notably, the tribunal had imposed too high a threshold in relation to the fifth element, which states that “it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others”. Case law in this area has demonstrated that the threshold must be set at a low level to allow the protection of minority beliefs in society. The EAT cited that, for a belief to qualify for protection, it need only be established that “it does not have the effect of destroying the rights of others“. The fact that Dr Mackereth’s beliefs were likely to cause offence therefore did not justify their exclusion from protection.

However, the distinction between belief and manifestation is a crucial one. The EAT held that, in appropriate cases, it is possible to dissociate a protected belief from its manifestation where everyone would be treated the same way, regardless of their beliefs. Here, Dr Mackereth’s views could be severed from how he chose to express them, that is, by not addressing transgender patients by their preferred pronouns. Despite his beliefs being protected, it was not unlawful for his employer to disallow this particular manifestation and adopt necessary and proportionate measures to meet their legitimate aim (focussing on the needs of potentially vulnerable service users).

This decision recognises that, whilst minority beliefs can be protected, employers are not required to accommodate or allow all manifestations of these beliefs in the workplace, particularly if it conflicts with its other obligations or policies. As Mrs Justice Eady DBE concluded, cases like these “give rise to difficult questions that can only be answered by a careful appraisal of the facts of the individual case“.

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USDAW and others v Tesco Stores Ltd [2022] EWCA Civ 978

 In this case, the Court of Appeal (“CoA“) overturned an injunction that prevented Tesco from using fire-and-rehire practices to withdraw a collectively agreed contractual benefit.

Loyal subscribers to Worked Up may recall that we previously reported on this case in our March 2022 edition when it reached the High Court. By way of a brief summary of the facts, between 2007 and 2009, Tesco agreed to pay employees affected by a substantial reorganisation of its distribution centres an enhancement known as “Retained Pay”, which was stated to be “guaranteed for life“. In early 2021, Tesco announced its intention to remove this benefit. It offered employees a lump sum payment of 18 months’ Retained Pay in advance in return for giving up any future entitlement, failing which individuals would be faced with dismissal and offered new terms excluding Retained Pay. The High Court granted an injunction which prevented Tesco from either withdrawing the benefit or using the fire-and-rehire practices to remove it completely.

At the CoA, this injunction was overturned. The court did not accept, even when taking into account wording such as “permanent” and “guaranteed for life“, that it was the mutual intention of the parties that the contracts would continue indefinitely or that the circumstances in which Tesco could bring the contracts to an end were limited. The language was too vague and unclear to give rise to an implied term. Instead, the contractual wording should be given its natural and ordinary meaning. Namely, that Tesco would have the right to provide notice in the usual way and that the entitlement to Retained Pay would only last as long as the particular contract endured.

In any event, the CoA held that an injunction was not justified. In this case, there was no clear argument about what Tesco could or could not do. It also could not point to any previous case in which a court had granted a final injunction to prevent a private sector employer from dismissing an employee for an indefinite period.

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Bailey v Stonewall and others ET/2202172/2020

From JK Rowling to Maya Forstater, many individuals have received backlash for tweeting about their gender-critical beliefs over the past few years. The recent case of Bailey v Stonewall and others considers the risk of organisations responding to an individual’s gender critical beliefs in an online public space and un-muddies the legal waters in regard to when a gender critical belief amounts to a protected philosophical belief under the Equality Act 2010.

The Claimant, a barrister at Garden Court Chambers (“GCC”), expressed on Twitter that she disagreed with the beliefs of those who say that a woman is defined by her gender, which may be different from her sex and is for the individual to identify. As a result of this view, the Claimant alleged that she suffered discrimination and victimisation by GCC’s barristers and their staff because of her gender-critical philosophical belief. A further allegation that Stonewall instructed, caused or influenced GCC’s discriminatory actions, or attempted to induce or cause these actions, was also raised.

The tribunal held that the Equality Act 2010 protected both the belief that women are defined by their biological sex, not their gender identity, as well as the Claimant’s belief that “gender theory as proselytised by [Stonewall] is severely detrimental” to women and lesbians. It found that the Claimant suffered direct discrimination on the basis that GCC tweeted that it would launch an investigation into complaints made about the Claimant in respect of her gender critical beliefs. The tribunal rejected GCC’s defence that this tweet was to “damp down the Twitter storm” rather than due to the Claimant’s belief as the reason was indissociable from the belief. The Claimant’s indirect discrimination claims and her claim for loss of earnings due to her gender-critical beliefs were dismissed. The tribunal also rejected claims that Stonewall instructed, induced or caused, or attempted to induce or cause detriment to the Claimant.

While the Claimant was successful in her direct discrimination claim, there are obviously reputational factors that need to be taken into account when handling gender-critical views expressed on social media. The debate around transgender and sex-based rights is complex and is increasingly finding its way onto the public stage. This case highlights that careful consideration and risk analysis are required when referring to an individual’s gender-critical beliefs in a public forum, even if this view goes against the company’s policy and is potentially damaging to the company’s reputation.

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