Employment Law Alert UK – September 2024

Diversity, Equity & Inclusion

EHRC actively addressing issues of discrimination and inequality across various sectors in the UK. August has seen a flurry of activity and developments from the EHRC. Key developments include:

1. Racial Discrimination Report to the UN: On 12 August 2024 the EHRC submitted a report to the UN Committee on race and ethnicity disparities across employment, justice and healthcare. The report found significant unemployment and pay gaps, especially among Pakistani, Bangladeshi, and Black groups compared to White British workers. Recommendations to the UK and Welsh governments include improving data on employment gaps and introducing mandatory monitoring and reporting on ethnicity in recruitment, retention, and progression for larger employers.

2. Army Discrimination Case: The EHRC provided support and funding to former Corporal Kerry-Ann Knight in a race and sex discrimination claim against the Ministry of Defence (MoD), resulting in an apology and a substantial financial settlement from the MoD, without an admission of liability. Knight's case, which involved allegations of racial and sexist abuse, underscores one of the EHRC's strategic priorities for 2024-2025 to tackle discrimination, harassment, and victimisation in the armed forces.

3. Gender Pay Gap Reporting: The EHRC named six organisations for failing to report their gender pay gap data for the 2023-24 period. This action is part of the EHRC's enforcement efforts to ensure transparency and accountability in addressing pay disparities between genders. The decrease in organisations failing to report, from 28 in 2022 to six in 2024, indicates the effectiveness of the EHRC's enforcement approach.

4. Landmark tribunal case: The EHRC supported the Claimants with their claim against British Airways (see further below) which affirms protection against indirect associative discrimination. Following the dismissal of BA's appeal Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, said: "The protections from indirect associative discrimination afforded by Section 19A of the Equality Act are important, and it's right that we challenge any legal action which could weaken them."

Indirect discrimination claims can be brought by those who are disadvantaged alongside a group with a protected characteristic, even if they do not themselves share that protected characteristic. In an important decision which may increase the number of indirect discrimination claims, the EAT  held that section 19 of the Equality Act 2010 should be interpreted in line with the European Court of Justice's jurisprudence. As such it allows for indirect discrimination claims to be brought by individuals who do not share the same protected characteristic as the disadvantaged group but suffer the same disadvantage due to a provision, criterion or practice (PCP) applied by their employer. Claims were brought by British Airways Heathrow-based cabin crew, who argued that scheduling changes brought about by a restructuring exercise disproportionately disadvantaged non-British nationals commuting from abroad and women with caring responsibilities. Crew without the same protected characteristics were similarly disadvantaged (e.g. a British national commuting from France, and a man with caring responsibilities).

At first instance, the ET interpreted section 19 so as to allow the claimants without the protected characteristic of the disadvantaged group to bring the claims. BA appealed the decision arguing that dispensing with the requirement for claimants to share the relevant protected characteristic gave rise to a radical extension of section 19. This appeal was resisted by the Claimants, and by the Minister for Women and Equalities acting as an intervener. The EAT had to consider whether adopting a broader interpretation of the protection offered by section 19 fell on the right side of the boundary between interpretation (going with the "grain" of the legislation) or constituted an amendment (effectively "turning the scheme inside out"). The EAT dismissed the appeal: the ET made no error of law in concluding that it had jurisdiction to consider indirect discrimination claims under section 19 where claimants do not share the protected characteristic of the disadvantaged group but suffer the same particular disadvantage.

BA tried to use the express introduction of this protection through the Equality Act 2010 (Amendment) Regulations 2023 (which was not effective at the relevant time) to support its argument that section 19 should not be interpreted to allow the claims. The EAT did not agree focussing instead on the key aims and drivers of the Equality Act to promote equality and prevent discrimination in the workplace. Although it is worth noting that the new s19A of Equality Act 2010 (effective from 1 January 2024) now enshrines associative indirect discrimination. (British Airways plc v Rollett and ors (Minister for Women and Equalities intervening)

Positive Action Progression Scheme directly discriminated against the Claimants. The ET found that the decision to promote an Asian officer without considering other candidates constituted positive discrimination and was not a proportionate means of achieving a legitimate aim. The Claimants were three white British police officers who were not given the opportunity to apply for a Detective Inspector role. This role was given to an Asian officer without a competitive process. The Claimants brought claims of direct race discrimination and harassment (although this was withdrawn during the hearing) against the Respondent. The Respondent had in place a Positive Action Progression Scheme. As part of this scheme it offered a Detective Inspector role to one of the candidates of the scheme Miss Sidhu. The three Claimants were interested in the post but were not given the opportunity to apply. The ET found that appointing PC Sidhu as Detective Inspector without a competitive process went beyond mere encouragement and rather disadvantaged officers who did not share the protected characteristic of race and were therefore denied the opportunity to apply for the role. This was not a proportionate means of achieving a legitimate aim. The ET noted that the role was not advertised, contrary to the Respondent's own policies, and criticised the Respondent for not carrying out an Equality Impact Assessment before making the decision. It also noted that those taking the decisions had not been given any specific equality and diversity training. The Tribunal's judgment emphasises the importance of equal opportunity and the careful application of positive action schemes to avoid direct discrimination. (Turner-Robson & ors v Chief Constable of Thames Valley Police)

High Court upholds teaching ban against teacher who refused to use requested pronouns. The High Court has upheld the decision of the Teacher's Regulation Agency to impose a prohibition order on the Claimant preventing him from teaching having found him guilty of unacceptable professional conduct. The Claimant was a teacher and evangelical Christian, and held strong views on gender identity and homosexuality, which he expressed by deliberately using female pronouns to refer to a transgender male pupil and declaring that homosexuality a sin in class. This caused significant distress to the pupils concerned. The High Court upheld the findings of the Teacher's Regulation Agency, concluding that the Claimant's actions violated the requirement to treat pupils with dignity and respect. While acknowledging the Claimant's rights to freedom of thought and expression under Articles 9 and 10 of the ECHR, the High Court emphasised that these rights were qualified and secondary to the professional obligation to safeguard student wellbeing. Although this case arose in an educational context, it has wider implications. Whilst an individual's beliefs may be protected, disciplinary actions or dismissal can be justified where those beliefs are manifested in an unacceptable way. It is worth noting that the Claimant has indicated plans to appeal to the Court of Appeal. (Sutcliffe v Secretary of State for Education)

Next sales consultants successfully argue that they should be paid the same as warehouse employees. In a landmark equal pay case, the ET ruled that Next Retail Ltd unlawfully paid its predominantly female sales consultants a lower wage than its mostly male warehouse employees. The tribunal found that over 3,500 sales consultants were right to claim that their work was of equal value to that of warehouse workers and should have been compensated equally. The ET concluded that Next's pay policy constituted indirect sex discrimination due to its disproportionate impact on women, who were significantly overrepresented among sales staff and part-time workers, and did not accept the higher market rate for warehouse staff justified the pay disparity. The ruling, which could result in Next paying around £30 million in back pay, is hugely significant for similar ongoing equal pay claims in the private sector. It is reported that Next plans to appeal the decision. (Thandi and others v Next Retail Ltd)

Employee relations

SRA updates warning notice on NDAs. On 6 August 2024 the SRA updated its warning notice on the use of NDAs. The majority of changes are fairly minor, and include slight wording changes and re-ordering the existing content. However a new section "Improving how you deal with NDAs" has been added, which draws out key themes from the Thematic Review into the use of NDAs carried out by the SRA. This new section highlights that practitioners should be considering various factors when advising on an NDA including whether an NDA is necessary in the specific circumstances, internal training, over-reliance on precedents/templates, unreasonable time limits and funding and duties owed to clients. The notice applies to all solicitors, law firms, and other entities regulated by the SRA, regardless of the context or purpose of the NDA.

EAT allows claim for "detriment of dismissal" following Court of Appeal in Timis v Osipov, over recent EAT decision in Wicked Vision Ltd v Rice. The EAT has held that a Claimant can claim that their employer is vicariously liable under section 47B(1B) of the ERA 1996 for the "detriment of dismissal" by a co-worker. The Claimant, an events manager, was dismissed by the Respondent by one of its directors. The Claimant alleged that her dismissal was due to her making protected disclosures, thus constituting automatically unfair dismissal. She later sought to amend her claim to include a claim of vicarious liability for various detriments, including her dismissal. The EAT, referencing the Court of Appeal decision in Timis and Sage v Osipov, allowed the amendment, clarifying that an employee can bring a claim against an individual co-worker for the detriment of dismissal and a vicarious liability claim against the employer - the only claim excluded by section 47B(2) is a claim against the employer in respect of its own act of dismissal. It is worth noting that HHJ Barklem commented in his judgment that in reaching his decision he was bound by Osipov as a Court of Appeal decision, and that in contrast the courts are not bound to follow Wicked Vision "nor even to regard it as persuasive authority". However he also added that in practical terms re-labelling the claim is likely only to be relevant to the value of any injury to feelings award if the Claimant were successful, and that given that the EAT's decision in Wicked Vision has been appealed to the Court of Appeal, which should hopefully resolve the underlying uncertainty in this area, it would be sensible to (if necessary) postpone any relevant remedy decision until that appeal has been heard. (Treadwell v Barton Turns Development Ltd)

ET should only have considered employer's conduct when assessing claim of repudiatory breach. The EAT has overturned the decision of the ET, finding that it had erred in law by not focusing solely on the employer's conduct when assessing the merit of the Claimant's claim that there had been a repudiatory breach of the implied term of mutual trust and confidence. The Claimant, a teacher, raised a grievance in relation to the conduct of the school's head teacher (the head teacher was accused of acting in an aggressive and intimidating way). The Claimant later resigned, having lost faith in the grievance process (due to apparent bias and the approach to evidence), which she felt was mishandled by the Respondent. Although the Claimant participated in the first two stages of the grievance process, she did not exercise her right to appeal, but rather resigned with immediate effect. At first instance the ET dismissed the Claimant's claims, finding that there was a reasonable expectation that an appeal would have righted the wrongs of the earlier process and therefore the relationship between the parties had not been damaged to the extent necessary for the constructive dismissal claim. However, the EAT, following established authority, held that only the Respondent's conduct should be considered, and that consideration of the Claimant's conduct had clouded the ET's ability to assess whether the threshold for repudiatory breach had been reached. The EAT highlighted that the ET should not have considered the Claimant's conduct when assessing the impact of the Respondent's actions on the relationship of trust and confidence between the parties. The case was remitted to the ET for reconsideration. (Nelson v Renfrewshire Council)

Litigation procedure

Tribunal Procedure Committee (TPC) launches consultation on provision of written reasons for decisions. On 30 July 2024 the TPC launched a consultation on potential changes to the procedural rules for the First-tier Tribunal and employment tribunals, particularly focusing on the provision of written reasons for decisions. Key proposals include differentiating between 'short-form' and 'full' written reasons for decisions given orally at hearings in employment tribunals, and limiting the right to request written reasons to the unsuccessful party, unless a judge deems full written reasons necessary for justice. This initiative, prompted by Senior President of Tribunals Sir Keith Lindblom, aims to streamline the process by which tribunals communicate their decisions, enhancing efficiency while considering the impact on access to and the principles of justice. Whilst the proposals are supported by the Presidents of the Employment Tribunals, they have also queried whether it is appropriate to limit the right to full written reasons to the "unsuccessful party" and that there could be practical difficulties in some cases with identifying the "successful" and "unsuccessful" party. The consultation closes on 22 October 2024.