Employment Law Alert UK April 2024

Diversity, Equity & Inclusion

Christian actor who refused to play lesbian role did not suffer religion or belief discrimination. The EAT has upheld the decision of the ET that steps taken by a theatre company and agency to terminate their contracts with the Claimant following a social media storm did not discriminate against her. The Claimant grew up in a Christian family. She posted on Facebook in 2014 that she did not believe that a person could be born gay and that homosexuality is not right. In 2019, when she was offered the role of Celie (who has a lesbian relationship) in The Colour Purple the Claimant's previous Facebook post came to light. Following social media controversy, the Claimant's contracts with the theatre and her agency were brought to an end. The EAT upheld the conclusions of the ET that the Claimant's beliefs were not the reason for the decisions taken, rather commercial decisions were taken driven by the impact of negative publicity, funding and potential disruption on the viability of the production. The EAT also upheld a costs award made against the Claimant, taking account of the fact that the Claimant admitted, shortly before the hearing, that she had not read the script at the time she was offered the role and would not have played the role of Celie in any event. (Omooba v Michael Garrett Associates Ltd and anor)

EAT finds that employer's decision to dismiss employee for posting racist "joke" fell within the band of reasonable responses. Although the ET at first instance found that the Claimant had been unfairly dismissed given his otherwise unblemished record and immediate apology, the EAT was clear that the decision to dismiss the Claimant fell within the band of reasonable responses. The Claimant worked for the Respondent as a coin processor. The Claimant posted a joke on the Respondent's intranet which was quickly reported and a disciplinary process was initiated. The Respondent gave consideration to the Claimant's long service, clean disciplinary record and profuse apologies and requests for diversity training, but concluded that no sanction other than dismissal would reflect its zero tolerance approach to discrimination. The EAT found that the dismissal fell within the band of reasonable responses and that the ET had fallen into the territory of substituting its own view of the gravity of the conduct in light of the various mitigating factors. The conclusion may have been different if the Respondent had not shown that it had considered the mitigating factors, but given that was not the case it was perverse to suggest that dismissal was not reasonable. The case serves as a helpful reminder that employers have a wide discretion when determining sanctions, so long as the outcome of a disciplinary process is not perverse. (Vaultex UK Ltd v Mr Robert Bialas)

EAT agreed that the Respondent in race discrimination claim had presented an actual comparator, unlike those suggested by the Claimant. The Claimant (born Black British) was employed as an English teacher at the Respondent and had a history of lateness. On one occasion this lateness caused a delayed start to an English exam being sat by sixth form students. As a result, the Claimant, together with a fellow teacher, Mr White (born white European) who oversaw the college's exams, were investigated for breaches of the Respondent's absence policy. Two other members of staff (also white European, who the Claimant later sought to rely on as comparators) were not subject to disciplinary proceedings, despite in one case bearing partial responsibility for the fact that clean copies of the English text were not available on time, and in the other, also being late on the day of the exam. The Claimant resigned immediately following the disciplinary hearing, and brought claims of direct race discrimination and constructive unfair dismissal. The ET found that the Claimant had not been treated less favourably than Mr White and therefore did not uphold his race discrimination claim. The Claimant appealed the decision on a number of grounds, including specifically in relation to the ET's reasoning with respect to comparators. The EAT concluded that there was plenty of evidence to justify the Claimant and Mr White being treated the same, including in particular that both were guilty of persistent lateness. In contrast there was no history of lateness with the Claimant's proposed comparators. (Martin v Board of Governors of St Francis Xavier 6th Form College)

High bar for demonstrating that it is reasonable not to offer an alternative role on a trial basis. The EAT has upheld the decision of the ET that the Respondent should have offered the Claimant an available alternative role on a trial basis in order to discharge its duty to make reasonable adjustments. The Claimant worked as a pest controller. His role was predominantly in the field and required him to work at heights (about 40% of his role). In March 2017 he was diagnosed with multiple sclerosis. Various adjustments were made to the Claimant's role over time, but by early 2019 the Respondent no longer considered that the Claimant could carry out his field role. The Claimant applied for an alternative role at the Respondent as an administrator, but was unsuccessful, and shortly afterwards was dismissed. The Claimant brought a claim alleging that the Respondent had failed to make reasonable adjustments by failing to offer him the administrator role on a trial basis. Both the ET and the EAT upheld the Claimant's claim. Given that the Claimant could no longer carry out his role in the field, giving him a trial in the alternative role was a reasonable adjustment. The EAT considered that the Claimant had demonstrated that the role was potentially appropriate and suitable and the Respondent had not been able to demonstrate that it was unreasonable to put the Claimant in that role on a trial basis. An employer's assessment of the suitability of a role, whether the employee has the essential requirements for it and the prospects of a successful trial are relevant considerations but will not necessarily be treated as decisive - this is an objective question for the ET. This case highlights the extent of the duty on employers to engage with possible adjustments for a disabled employee, and in particular to give proper consideration to where a trial period may be suitable. (Miller v Rentokil)

Government publishes Inclusion at Work Panel report on improving workplace diversity and inclusion. On 20 March 2024 the government published the Inclusion at Work Panel report which considers how organisations can improve diversity and inclusion practices. The report was prepared by an independent panel chaired by Pamela Dow. The panel gathered evidence from the private, public and third sector with a view to presenting a framework for employers to use to undertake D&I activities in a more rigorous, evidence-driven way. The report contains three key areas of recommendations: government endorsement of a new framework setting out criteria employers might apply to their D&I practices; government funding for a digital tool for employers to assess the rigour, efficacy and value for money of D&I practices; and clarification of the legal status for employers in relation to D&I practice from the EHRC.

Presidents of Employment Tribunals publish update to Vento bands. On 25 March 2024 the Presidents of the Employment Tribunals published an addendum to their guidance on employment tribunal awards for injury to feelings and psychiatric injury. For claims presented on or after 6 April 2024 the bands will be as follows:

• lower band: £1,200 to £11,700 (less serious cases);
• middle band: £11,700 to £35,200 (cases that do not merit an award in the upper band); and
• upper band: £35,200 to £58,700 (the most serious cases), with the most exceptional cases capable of exceeding £58,700.

Employee relations

Automatic unfair dismissal claims stands for employee who "sought" to take parental leave. The EAT has upheld the decision of the ET not to strike out a claim for automatic unfair dismissal brought by the Claimant who sought to take a period of unpaid parental leave, but had not yet made a formal notification. The Claimant began working for the Respondent in March 2019. In late 2019 and early 2020 the Claimant had some informal discussions with the Respondent about taking some unpaid parental leave. The Claimant mentioned his intention to take parental leave to the Respondent's Managing Director, and was met with a negative response. Shortly after that the Claimant was made redundant. The Claimant brought an Employment Tribunal claim alleging automatic unfair dismissal. The key issue for the Tribunal was whether the Claimant "took or sought to take" parental leave in the absence of a formal written application for parental leave. The Respondent sought to strike out the Claimant's claim, but was unsuccessful in the ET and again in the EAT. The EAT held that the Claimant had expressed an intention to take parental leave on more than one occasion and that if Parliament had intended protection only to apply to those who had given formal notice, the statutory provisions would be drafted using that terminology. As a result, a wide and purposive approach should be taken to the interpretation of the Maternity and Parental Leave Regulations. The case serves as a reminder that when contemplating a redundancy exercise you should take note of employees who have informally expressed an intention to take parental leave, as well as those who have made formal applications to do so, when assessing potential legal risk. (Hilton Foods Solutions Ltd v Wright)

Litigation procedure

EAT affirms importance of complying with procedural requirements when submitting appeal. The EAT has found that the Claimant's failure to include the grounds of resistance with the notice of his appeal could not be considered a "minor error" and as a result did not give grounds for an extension of time. The Claimant sought to appeal against the ET's rejection of his claims of direct race discrimination and harassment. At the time the Claimant was required to submit "any claim and response" with his appeal. The Claimant included the ET1 and ET3 forms but omitted the Respondent's grounds of resistance. The Claimant corrected the mistake six days after the time limit for doing so. The EAT found that the appeal had not been properly constituted and refused to extend time, finding that in light of the rules in place at the time, the omission of the grounds of resistance was not just a minor error. (Melki v Bouygues E and S Contracting UK Ltd)

Employment Tribunals (Constitution and Rules of Procedure)(Amendment) Regulations 2024 laid before Parliament. On 13 March 2024 the Employment Tribunals (Constitution and Rules of Procedure)(Amendment) Regulations were laid before Parliament. The regulations update aspects of employment tribunal procedure, in particular to provide for the implementation of the digital case management system, by allowing for the filing and delivery of documents through the Reform System. The regulations come into force on 6 April 2024.

Whistleblowing

ET erred in allowing Claimant to add whistleblowing detriment claim where the alleged detriment was his dismissal. The EAT has held that the ET had erred in permitting the Claimant to add an additional claim for whistleblowing detriment (for which the Respondent was alleged to be vicariously liable) arising from actions from one of the Respondent's workers in dismissing him. The EAT held that such a claim was barred by section 47(2) of the Employment Rights Act 1996 ("ERA"), as the alleged detriment in question amounted to dismissal, which is explicitly covered under Part X of the ERA. The Claimant was employed by the Respondent as Head of UK Sales from December 2017 until he was made redundant in February 2021. The Claimant contended that the real reason for his dismissal was that he had made protected disclosures regarding alleged breaches of the Coronavirus Job Retention Scheme. The Claimant brought a claim of automatic unfair dismissal against the Respondent, as well as a claim of ordinary unfair dismissal. The Claimant later sought to amend his claim to include that the act of the Respondent's owner in dismissing him was a whistleblowing detriment for which the Respondent was vicariously liable. This amendment was permitted by the ET, but the EAT overturned this decision, stating that the law is clear that if an employee is dismissed for an alleged protected disclosure the claim they can pursue against their employer is for automatic unfair dismissal. Although the Claimant could have also brought a separate claim for whistleblowing detriment against the Respondent's owner, the detriment claim could not be brought against the Respondent directly. (Wicked Vision v Rice)

AI

Uber settles claim with driver who alleged that its facial recognition software was racially discriminatory. On 26 March 2024 the EHRC announced that Uber Eats driver Mr Manjang has received a financial settlement to settle the claim which he brought in the Employment Tribunal against Uber alleging harassment related to race and indirect race discrimination. Uber were unsuccessful in their application to have the claim struck out, and the final hearing had been scheduled for 17 days in November 2024. The EHRC helped to fund the Claimant's case, and commented in its press release: "More needs to be done to ensure employers are transparent and open with their workforces about when and how they use AI. Every employer should take note of this, even major companies like Uber. When such companies rely on automation to help manage their staff they need to guard against unlawful discrimination." These sentiments were echoed by lawyers representing Mr Manjang: "The current protections are inadequate and the process for challenging decisions involving AI is fraught with difficulty." Pending the UK establishing its own regulatory framework, we anticipate there being significant interest in the implementation of the EU AI Act. See our Insight.

Other interesting things

SRA issues new guidance for in-house lawyers. On Friday 8 March the SRA issued a suite of new draft guidance for lawyers working in-house, following on from the In-house solicitors thematic review last year. The new guidance seeks (amongst other things) to educate in-house lawyers and their employers on navigating their regulatory framework. The guidance also includes information to assist boards and CEOs to understand the roles and responsibilities of the in-house solicitors they work with.  The guidance is a welcome development: in-house lawyers do not benefit from the same clear reporting lines for regulatory issues as lawyers in private practice and scrutiny by the SRA has increased. The guidance has been published in draft form at this stage and comments are invited until 19 April 2024.