Insights Worked up, your monthly employment law lowdown – July 2021

Welcome to a really Worked Up edition of Worked Up. Whether it’s the recently announced relaxation in UK Covid restrictions, the release at long last of the next instalment in the Marvel Cinematic Universe or some genuine reasons for a bit of national cheer with recent performances during Wimbledon and the Euros, there has been lots to get excited about. And that’s before we even talk about the rip-roaring developments in the employment law sphere. Hold onto your seats.

In this edition, we consider the tax status of TV and radio presenters, brief you on the recent guidance on Right to Work checks and look at a number of pieces of recent case law covering Covid-related dismissals, protection of gender critical beliefs under the Equality Act 2010 and the strike out of a claim brought by a difficult claimant.

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At long last, HMRC have published their guidance on the employment status for tax purposes of TV and Radio Presenters, which can be accessed here.

While any guidance in this area is helpful, it’s disappointing that the materials published don’t seek to provide general assistance in this area, unlike the previous guidance released for behind the camera roles and actors / performers. Instead, HMRC have sought to set out a series of examples which will not always prove a neat fit for a particular engagement.

To make matters worse, while HMRC say they have drawn on cases decided in the courts and tribunals, the position taken in the examples in fact goes far beyond this, incorporating HMRC’s view of the most likely outcome of a couple of critical cases currently under appeal (Kickabout Productions Ltd and Atholl House Productions Ltd).

Production companies and broadcasters will therefore need to determine whether to follow the current case law or rely on these new worked examples. HMRC have, however, helpfully confirmed that those who seek legal advice when assessing their presenters’ tax status in the coming months should not face any penalties should they get it wrong.

We’ve already spoken to a number of you grappling with assessments in this area so do let us know if there is anything we can do to assist.

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Employers will no doubt be relieved to hear that everyone’s favourite yo-yo, namely the Covid-19 adjustments to right to work checks, have been extended yet again until 31 August 2021 reversing the previous decision to bring these to an end on 21 June.

Up to and including 31 August 2021, employers can carry out right to work checks over video calls and can accept scanned copies or photographs of documents rather than originals. From 1 September 2021 the usual rules will apply so employers will need to check an applicant’s original documents or check their right to work online.

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Forstater v CGD Europe and others UKEAT/0105/20

This somewhat controversial case considered whether gender critical beliefs, in particular, the belief that sex is biologically immutable and that there are only two sexes (male and female) amounted to a philosophical belief capable of protection under the Equality Act 2010.

The Claimant was a visiting fellow who had made a number of comments on Twitter regarding her views on gender identity. Her colleagues complained about these tweets and, following an investigation, it was decided that her fellowship would not be renewed. The Claimant brought a claim that she had been discriminated against because of her belief but at first instance the Employment Tribunal held that her belief did not qualify for protection as it was not worthy of respect in a democratic society.

In what was probably a difficult decision, the Employment Appeal Tribunal (“EAT”) allowed the appeal holding that “it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection”. The EAT therefore held that the Claimant’s belief did qualify for protection, although stressed that that didn’t mean they endorsed the Claimant’s views. They also made clear that the judgment did not mean in any way that trans persons were not protected by the Equality Act 2010.

This case emphasises the need for employers to carefully balance competing protected characteristics and highlights the broad scope of beliefs that may perhaps surprisingly find protection under the Equality Act 2010, however objectionable they may be.

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A v B [2021] UKEAT/0042/19

The EAT recently considered whether it was appropriate to strike out a case because of the aggressive manner in which the Claimant had been corresponding with potential witnesses and the Respondent’s solicitor.

Following an initial unsuccessful strike out application brought by the Respondent, the Tribunal had ordered the Claimant to correspond professionally and in a polite manner, not to repeat certain allegations and not to attempt to contact any witnesses before a witness list had been agreed. After the Claimant ignored this order and continued to send inappropriate emails, the Respondent made a further strike out application which was granted by the Tribunal on the basis that certain emails sent by the Claimant were “scandalous, unreasonable and vexatious” and had made a fair trial impossible.

While the facts of this case were extreme, we all know that it’s not uncommon to be on the receiving end of a particularly belligerent ex-employee. It’s therefore a helpful example of the recourse available to employers when dealing with such pugnacious litigants.

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Mr F Accattatis v Fortuna Group (London) Ltd ET3307587/2020

In this case, the Tribunal considered whether an employee who had been dismissed after asking to work from home or be furloughed during the pandemic had been automatically unfairly dismissed.

The Respondent in the case sold and distributed PPE so business was naturally booming at the start of the pandemic. Its employees were allowed to remain at home by taking unpaid leave or using their holiday entitlement but the employer chose not to furlough any staff given its workload and the fact that there was clearly no anticipated reduction in work. The Claimant had requested to work from home but this had been denied as he didn’t have access to particular software that he needed for his role and he was also required to work from the employer’s premises to deal with deliveries on a daily basis. The Claimant had also requested to be furloughed on a number of occasions without any joy.

Shortly before the Claimant reached two years’ service, he was dismissed by the Respondent meaning he could not bring an ordinary unfair dismissal claim. The Claimant therefore alleged that he had been automatically unfairly dismissed as the principal reason for his dismissal was that he proposed to take appropriate steps to protect himself in circumstances of serious and imminent danger.

The Tribunal held that while the Covid pandemic did constitute circumstances which an employee could reasonably have believed to be serious and imminent, the Claimant had not actually proposed to take appropriate steps to protect himself by demanding that he be furloughed or allowed to work from home. In order to protect himself, the Claimant simply needed to remain at home and the Respondent had permitted this, just not on the basis the Claimant requested. In any event, the Tribunal found that the principal reason for his dismissal was not because he proposed to take those steps but because he was perceived to be a difficult and challenging employee so the Respondent wished to dismiss him before he qualified for ordinary unfair dismissal protection.

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Mr B Gibson v Lothian Leisure ET/4105009/2020

This case examined whether an employee who had been dismissed after raising concerns about PPE had been automatically unfairly dismissed.

The Claimant had been employed by the Respondent as a chef in a pub. During the first lockdown he had been placed on furlough but the pub contacted him to say that he would need to return to work in the run up to their re-opening at the end of the first lockdown. The Claimant’s father had a number of medical issues and was shielding. The Claimant therefore raised concerns about his father catching Covid from him but, on the Claimant’s evidence, the Respondent provided no PPE and had no intention of requiring staff to take precautions or to create a Covid-secure environment.

The Claimant was subsequently dismissed on 30 May 2020, allegedly because the Respondent planned to have a smaller team after lockdown. However, the Tribunal found that until the Claimant had raised his concerns, he had been a successful and valued member of staff and that nothing else had occurred during his employment to alter that position. The Tribunal therefore found that the Claimant was either dismissed because he reasonably believed his father to be in serious and imminent danger and took appropriate steps to protect him (the appropriate step being raising the issue of PPE) or that the Claimant had been selected for redundancy because of the same.

If in any doubt, this case emphasises that Covid-19 can constitute a circumstance of serious and imminent danger. But in order to bring a claim for automatically unfair dismissal, an employee will need to have taken appropriate steps to protect themselves or others from such danger. That won’t always be easy and it’s worth noting that the Respondent in this matter did not enter a response to the claim or attend the hearing – so perhaps the result is not that surprising.

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