Top 5 recent workplace developments – July 2021

This is our selection of 5 recent developments which we think will impact on HR practice.

1. Discrimination: Philosophical belief

In a decision which has generated strong feelings on each side of the transgender debate, the Employment Appeal Tribunal has found that a belief that sex is immutable is a protected philosophical belief.

Researcher, Ms Forstater, worked for the Centre for Global Development. When her contract was not renewed, she claimed that she had been discriminated against because of her “gender critical” belief. She had become engaged in the debate about the UK government’s proposed amendments to the Gender Recognition Act 2004 which would permit people to self-identify their gender. She believed that sex is a material reality and should not be conflated with gender or gender identity, and expressed her views on social media, which some people found offensive and “transphobic”.

The tribunal found Ms Forstater’s belief was not a valid “philosophical belief” which qualified for protection under the Equality Act. It concluded that she was an "absolutist" in her view of sex, and that it was a core component of her belief that she would refer to a person by the sex she considered appropriate, even if it violated their dignity or created an intimidating, hostile, degrading, humiliating or offensive environment. That approach was not worthy of respect in a democratic society.

The EAT disagreed, finding that a belief will only be unworthy of respect in a democratic society where it is the kind of belief the expression of which would be akin to totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms. Her belief might be offensive to some, and potentially may result in the harassment of trans persons in some circumstances. But hers was not a belief that sought to destroy the rights of trans persons. The EAT noted the evidence that Ms Forstater’s belief was widely shared and consistent with the law.

The case was referred to a new tribunal to determine whether the treatment complained about was because of, or related to, that belief.

Practical point

The EAT did not say that those with gender-critical beliefs can “misgender” trans persons with impunity – they are still subject to the law like everyone else, so whether or not their conduct amounts to harassment or discrimination will be for a tribunal to decide at the relevant time.

Furthermore, this judgment does not mean that trans persons don’t have protection against discrimination and harassment; and it doesn’t mean that employers and service providers are not able to provide a safe environment for trans persons.

This case is the latest in a line of cases which have considered whether a person’s beliefs constitute protected philosophical beliefs. What is very clear is that every case is assessed on its facts and there is no blanket approach.

Forstater v CGD Europe & Ors, Index On Censorship

2. Covid-19: Refusal to go to work

An Employment Tribunal considered whether an employee was protected from dismissal for refusing to come into work on health and safety grounds because of expressing concerns about commuting and attending the office during lockdown.

Mr Accattatis worked for Fortuna, which sells and distributes PPE. During March and April 2020, Mr Accattatis repeatedly asked to work from home or be placed on furlough, because he was uncomfortable using public transport and working in the office. Fortuna told him his job could not be done from home, and he could not be furloughed because the business was so busy - but he could take holiday or unpaid leave instead. Mr Accattatis declined and repeated his request for furlough three more times, prompting Fortuna to dismiss him by email the same day his final request was made.

Mr Accattatis did not have sufficient service to claim ordinary unfair dismissal and instead alleged he had been automatically unfairly dismissed for having taken steps to protect himself from danger. Employees are granted protection from dismissal where there are legitimate health and safety concerns - they may be entitled to claim unfair dismissal where they have left work or refuse to return to work and/or have taken appropriate steps to protect themselves and/or others from a situation which they reasonably believed posed a “serious and imminent danger”, and could not be avoided.

The tribunal noted that the government had announced that Covid posed a serious and imminent threat to public health and that Mr Accattatis had expressed concerns about commuting and attending the office, which showed he reasonably believed there were circumstances of serious and imminent danger. However, to be afforded protection from automatic unfair dismissal, Mr Accattitis had to show he had taken appropriate steps to protect himself from danger or had communicated the circumstances of danger to Fortuna.

Fortuna had reasonably concluded that his job could not be done from home and that Mr Accattatis did not qualify for furlough but had instead suggested taking holiday or unpaid leave. Mr Accattatis' response was not only that he wanted to stay at home (which was agreed), but also to demand that he be allowed to work from home or be furloughed. Given that these demands were not appropriate steps to protect him from danger, his claim failed.

Practical point

The claimant had less than two years’ service so had to claim protection from dismissal for refusal to work on health and safety grounds. However, employees with more than two years’ service could also claim ordinary unfair dismissal, and that may have resulted in a different outcome here.

It is worth noting that the law also protects employees (and more recently due to a change in the law, workers too) from suffering a detriment, such as withholding pay, where they refuse to attend work due to a reasonable belief they are in serious and imminent danger.

Accattatis v Fortuna Group (London) Limited

3. Health and safety duties: automatic unfair dismissal

The Employment Appeal Tribunal has ruled that an employee was automatically unfairly dismissed when he was dismissed for causing 'upset' and 'friction' among colleagues when implementing a new safety procedure requested by his employer.

Mr Sinclair was employed as a Track Maintenance Supervisor and responsible for implementing a new safety procedure. After his colleagues, who were not aware he was required to do this, raised concerns about what he was trying to do, and complained about his "overcautious and somewhat zealous" approach, he was dismissed for the “upset and friction” he had caused.

He subsequently brought a claim on the grounds that his dismissal was automatically unfair because the reason or principal reason for his dismissal was that he was carrying out health and safety activities he had been required to do. His claim was rejected by an employment tribunal on the basis that it was the manner in which he had carried out his health and safety activities, rather than the health and safety activities themselves, that had caused his dismissal.

However, the EAT allowed his appeal. It found that the upset and friction caused by Mr Sinclair's implementation of new health and safety activities that led to his dismissal, was not properly separable from the carrying out of those activities. The EAT noted that if employers could rely on the upset caused by legitimate health and safety procedures to dismiss employees, this would undermine the protection afforded under the legislation.

Practical point

Employees who are responsible for carrying out health and safety activities and are dismissed for causing upset and friction in the workplace for carrying out those activities will be afforded broad protection from dismissal.

However, employees may not be protected from dismissal in circumstances where their conduct is completely unreasonable, malicious or irrelevant to their designated health and safety activities.

Sinclair v Trackwork Ltd

4. Indirect sex discrimination – ‘childcare disparity’

The EAT has decided that a tribunal hearing an indirect sex discrimination claim should have taken judicial notice of the "childcare disparity" faced by women. Namely that women, because of their childcare responsibilities, are less likely to be able to accommodate certain working patterns than men.

Ms Dobson was employed as a community nurse. She worked fixed days each week under a long-standing flexible working arrangement. Her employer North Cumbria Integrated Care NHS Foundation Trust introduced a new policy which required community nurses to work variable days, including weekends. Ms Dobson was unable to do this because of her caring responsibilities for her three children, two of whom are disabled. She was dismissed. She lost her claims of unfair dismissal and indirect discrimination at the Tribunal.

While the Tribunal accepted the new policy put Ms Dobson at a substantial disadvantage based on her own personal circumstances, when it came to the question of whether women as a group were disadvantaged by the policy, the Tribunal found that no evidence had been produced to support this argument. All the other community nurses in Ms Dobson’s team – both male and female – were able to comply with the new working arrangements. Without this evidence, the Tribunal concluded that Ms Dobson’s indirect sex discrimination failed.

The EAT overturned the Tribunal’s decision and said the Tribunal should have also considered whether group disadvantage could be shown in other ways. There was no requirement for Ms Dobson to produce evidence to support the argument that women were disadvantaged by a requirement to work flexible or variable working patterns, that was just one of the ways that disadvantage could be shown. The tribunal should have also considered whether group disadvantage could be established by other means including by taking judicial notice of the fact that women because of their childcare responsibilities, are less likely to be able to accommodate some working patterns than men.

Practical point

This case provides useful clarification about whether evidence that women bear the greater burden of childcare is necessary in indirect sex discrimination cases. The EAT said that whilst things have progressed somewhat in that men do now bear a greater proportion of child caring responsibilities than they did decades ago, the position is still far from equal and tribunals should still consider the ‘childcare disparity’. However, it is important to note that societal norms and expectations change over time and things are not set in stone.

It is also important to remember that the childcare disparity does not inevitably lead to the conclusion that any form of flexible working puts or would put women at a particular disadvantage. This will depend on the particular provision, criterion or practice (PCP) in question. In this case, the PCP was to work flexibly, including at weekends, as and when required by the employer. The employee had no flexibility under the arrangement to choose working hours or days within certain parameters. As a result, the relationship between the childcare disparity and the PCP in question was likely to result in group disadvantage being made out.

Dobson v North Cumbria Integrated Care NHS Foundation Trust

5. Equality and diversity: Government response to recommendations on gendered economic impact of the pandemic

The government has published its response to the Women and Equalities Committee report on the gendered economic impact of COVID-19. That report found that government policies had consistently overlooked women's caring responsibilities and the employment inequalities experienced by them, and made wide-ranging recommendations.

The government's response to the Women and Equalities Committee report on the gendered economic impact of COVID-19 rejects many of the Committee’s recommendations. This includes recommendations for a review of the adequacy of statutory sick pay, amendments to Form HR1 to capture protected characteristic information, the funding of training schemes aimed at women in certain fields and the publication of a gender equality plan for apprenticeships.

However, it does say:

•     Amendments to the Flexible Working Regulations to remove the 26-week service requirement for making a flexible working request will be considered. The government wants to make it easier for people to work flexibly and is committed to encouraging flexible working. It will consult on making flexible working the default position in due course.

•     The government is committed to bringing forward an Employment Bill "when parliamentary time allows". However, there was no mention of an Employment Bill in the Queen's Speech of 11 May 2021. Consequently, the government will not publish the draft Employment Bill by the end of June 2021 as the report recommends.

•     The government does still intend to extend the redundancy protection period afforded to mothers on maternity leave. This protection will apply to pregnant women and for six months after a mother has returned to work, and will also cover those taking adoption and shared parental leave. The measures will be brought forward "as soon as Parliamentary time allows" - no specific timeframe is given. The government is also considering proposals to require large employers to publish their parental leave and pay policies, and its formal response to a consultation from July 2019 is awaited.

Practical point

On other equality issues, while calls for introducing disability pay gap reporting have been rejected, the government has said that it will respond to the ethnicity pay gap consultation in due course.