Case law updates

Discrimination – philosophical belief: The Employment Appeal Tribunal (EAT) has allowed an appeal against a tribunal’s finding that a claimant was not discriminated against when she was dismissed after a series of personal Facebook posts criticising the teaching of gender fluidity in schools. The respondent, a school, successfully argued in the employment tribunal (ET) that the claimant was not dismissed because of her gender-critical views (accepted to be a protected belief), but rather because of concerns arising from the perceptions created by the posts. However, the EAT has remitted the case for re-determination as the ET had failed to properly consider, in a context where there was a close connection between the posts and the beliefs, and when applying a proportional approach, whether objection could justifiably be taken to the way in which the claimant manifested her beliefs. The EAT was reluctant to lay down explicit guidelines for cases like these, although it did set out some basic principles underpinning the approach to proportionality where rights of freedom of expression, religion and belief collide (see paragraph 94). (Higgs v. Farmor's School)

Discrimination – philosophical belief: Another philosophical belief case this month is a useful reminder that simply because an individual asserts a protected belief does not necessarily give rise to protection – there are several considerations, including an assessment of whether the belief is genuinely held. In this case, a vegan care worker who was dismissed when she refused to have a Covid-19 vaccine failed with her claim. Whilst ethical veganism is a protected belief, on the facts, the claimant’s beliefs and practices were insufficient to meet the threshold of holding a genuine belief in ethical veganism. (Owen v. Willow Tower Opco 1 Limited)

Harassment: In an appeal against an ET’s finding that a claimant had not been subjected to harassment, the EAT has considered the extent to which awareness of the unwanted conduct is required and the test of reasonableness. In this case, the claimant, who has Asperger’s Syndrome, was the subject of a bullying and harassment investigation, following complaints made against him by two colleagues, out of which he became aware of comments made by them about him that formed the basis of his harassment complaint. On the issue of awareness, the EAT was clear that derogatory comments could only have the potential of amounting to harassment once the claimant became aware of them, as the perception of the person claiming harassment is key and that perception cannot arise without awareness. Further, in the factual context of this claim, it was not deemed reasonable for the comments to have had the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment to meet the test of harassment. It was inevitable that in the course of an investigation into him, issues and comments may come up that he did not like. (Greasley-Adams v. Royal Mail Group)

Investigation reports – legal advice privilege: The Scottish Court of Session has upheld an EAT decision (see our September 2022 newsletter) that an investigation report will not retrospectively attract legal advice privilege simply by virtue of having legal advice on its content. By way of reminder, in this case, a grievance investigation report was prepared by an independent member of staff but subsequently amended and reissued following external legal advice. Only the final version was disclosed as part of legal proceedings, although the claimant sought an application for disclosure of the original, unamended report, which promoted the argument about privilege. Neither the EAT nor the Court of Session accepted that the initial report was subject to privilege on the facts. This appeal decision consolidates the earlier judgment and further highlights the importance of working alongside legal advisors on an investigation plan, establishing in advance what legal advice is needed and preparing documentation with that plan in mind, as without careful consideration, draft reports may become disclosable. (University of Dundee v. Chakraborty)

Post-termination restrictions: The High Court has refused to grant an interim injunction to enforce a 12-month non-compete clause, despite there being a serious issue to be tried, because of the employer’s delay in issuing proceedings. The employee resigned in March 2022 and was placed on garden leave. His employer knew of his intention to join a competitor in July 2022, and negotiations had not resolved matters by November. Notwithstanding this, the claim form was not issued until April 2023. The High Court was critical of the unreasonable delay on the employer’s part, indicating that proceedings issued in November 2022 could have seen the dispute resolved. (Jump Trading International v. Couture)

For more information about non-compete clauses, and particularly the intention for reform in this area, see our Employment Law Watch blog.

Subconscious discrimination: The EAT has been considering whether the tribunal should always expressly and/or separately consider the possibility of subconscious discrimination, concluding that this is only necessary where there is evidence on which an inference of subconscious discrimination could be based (i.e., there is no universal obligation for them to do so). In this case, on the facts, there was no suggestion that subconscious discrimination or stereotypical assumptions about the claimant’s race played any part in the reason for her treatment, so there had been no error by the tribunal in failing to consider it as a possibility. (Kohli v. Department for International Trade)

Tribunal procedure: A word of caution for respondents acting against litigants in person not to rely solely on agreed lists of issues. In this case, the EAT has found an ET to have erred in not making a determination on a discriminatory dismissal claim despite this not being included in the list of issues. The claimant had, in the EAT’s view, included sufficient information on this point that it was, or should have been, evident to both the respondent and ET that it was part of her claim. (Moustache v. Chelsea and Westminster NHS Foundation Trust)

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