WATCH THIS SPACE VERY SOON

We told you in the February newsletter about learning points arising from the 2023 Top Employment Tribunal decisions. Costly decisions for some employers and some employees!

And things won’t stand still in 2024 - some important employment law case decisions are coming down the track very soon.

They feature household names including Tesco, Uber Eats and the Environment Agency. An  actor and professional football referees will also be in the courts. Even Artificial Intelligence (AI) and facial recognition get a mention below in our round up of what’s coming soon.

Some of  the questions to be answered this year by the courts include:-

• Can you be disciplined for taking industrial action?

• When is permanent permanent?

• Does football match day = tax day?

• Is it race discrimination to use facial recognition software to verify      identity?

• Can you hold gender critical beliefs in the workplace?

• Is there a requirement to express their beliefs "nicely" in social      media posts?

• Should an actor have been fired from the play “The Colour      Purple”?

• Are you allowed not to hold feminist philosophical beliefs?  

Here’s a preview of what’s coming very soon.

1. Collective bargaining - Mercer v Alternative Future Group Ltd  

Are striking workers protected from a detriment short of dismissal?

Some employers  impose a detriment short of dismissal on employees who take part in industrial action. For example, withdrawing discretionary benefits. The Employment Appeal Tribunal (EAT) cast doubt on the legality of such practices in 2021. However, in 2022 the Court of Appeal  confirmed that UK legislation does not prevent an employer taking action short of dismissal in response to an employee's participation in industrial action. Yet, the Court did comment that the UK legislation may possibly be in breach of Article 11 of the European Convention on Human Rights (freedom of association).

In December 2023, the Supreme Court considered a further appeal on this issue. This is a highly important appeal for employers with a unionised workforce. Will the Supreme Court agree with the EAT and read words into the existing legislation or agree with the Court of Appeal that it would be impermissible saying  judicial legislative drafting is an issue for Parliament alone?

Watch this space!

1. Fire & Rehire - USDAW & others v Tesco Stores Limited  

When is permanent, well, permanent? On 23 April, the Supreme Court is set to consider the power of a contract clause. In February 2022, the High Court granted an injunction restraining Tesco from 'firing and rehiring' employees in order to remove a contractual entitlement to enhanced pay known as 'Retained Pay'. The entitlement, which was negotiated as a retention incentive, was stated to be 'permanent' and was intended to last for as long as the employee remained in the same role. In these unusual circumstances, the High Court held that it was appropriate to imply a contractual term preventing Tesco from exercising its contractual right to terminate on notice for the purpose of removing or diminishing the employee's entitlement to the Retained Pay.

However, in July 2022, the Court of Appeal held that as the express terms of the contracts also included a standard termination on notice clause, Tesco was free to give notice in the ordinary way. The employees' entitlement to 'Retained Pay' would only last as long as the particular contract remained in force, rather than the employment (in a colloquial sense) lasted.

Will the Supreme Court agree with the High Court that in these unusual circumstances the ability of an employer to terminate a contract on notice should be restricted? Or will it agree with the Court of Appeal that something more is needed to limit an express termination on notice clause?

Watch this space!

1. Employment tax status - HMRC v Professional Game Match     Officials Ltd  

Does match day = tax day?

In June 2023, the Supreme Court considered whether HM Revenue and Customs(HMRC) were right to have determined that match referees should be taxed as employees in HMRC v Professional Game Match Officials Ltd. The case has been referred to them by the Court of Appeal.

In this case, the Court of Appeal had held that whether an individual's contract is a contract of employment for tax purposes is not dependent on there being an overarching or umbrella contract existing between assignments. As such, an individual engagement (in this case a match) could give rise to working under a contract of employment. The question is whether there is sufficient mutuality of obligation and control in relation to each assignment?

This long-awaited judgment has implication for all off-payroll workers. It is hoped that this judgment will provide some much-needed guidance on the level of control, as well as how to interpret the issue of mutuality of obligation within individual contracts when determining the status of engagements. Businesses will need to ensure that their assessment processes are updated to reflect the outcome of this case.

Watch this space!

1. Artificial intelligence - Manjang & Raja v Uber Eats UK Ltd  

Is it race discrimination to use facial recognition software to verify the identity of platform workers?

This case illustrates  how modern work practices mean modern employment law issues.

One of the biggest is the increased use of Artificial Intelligence. Uber Eats operates a facial recognition system for its drivers, As the facial recognition system is significantly more error prone when used by black and minority ethnic workers, does Uber's usage of the system without appropriate safeguards amount to indirect race discrimination? Time will tell.

The case is taking considerable time going through the tribunal process. So far Uber's attempts to have the claims struck out at preliminary hearings has failed. A full merits hearing will hopefully be listed for some time this year. While employment tribunal decisions are non-binding, they can be a barometer of upcoming trends.

Watch this space!

Religion or Belief discrimination

The clashing of rights in the workplace looks set to continue as a theme for 2024 so we turn next to a batch of cases to look out for which all fall under this heading.

Some relatively new terms and/or concepts of belief are used in the five court summaries below. These are firstly profiled and defined next:-

• Gender identity belief = one that considers everyone has a gender      that could be different from their birth sex and effectively overrides      sex. Someone who holds this belief sees trans men as men and      trans women as women.

• Gender critical belief = the belief that sex is immutable and not to      be conflated with gender identity'.

• Woke = the phrase “woke” and to “stay woke” is not new — it     began appearing in the 1940s and was first used by African     Americans to “literally mean becoming woken up or sensitised to     issues of justice”. In broad terms, Woke” is currently used by the     political left to refer to progressiveness and social justice, while     those on the political right have weaponised it as a way to     denigrate those who disagree with their beliefs.

• Feminism = belief in and advocacy of the political, economic, and      social equality of the sexes expressed especially through      organised activity on behalf of women's rights and interests

• Antifeminism = the countermovement of thought and action that is      opposed to feminism. Its thematic range is as extensive as the      fields of feminism's intervention, and has evolved over time to      oppose the rights gradually won by women.
  

1. Gender identity beliefs - Bailey v Stonewall Equity Ltd

 Lawful protest or unlawful inducement?

In 2022, a barrister succeeded in her claim against her chambers that she had been discriminated against for holding gender critical beliefs and further because of her belief that gender theory, as articulated by Stonewall, is severely detrimental to women (including that it denies them female-only spaces) and to lesbians (in that it labels them as bigoted for being same-sex attracted). However, she failed in her claim against Stonewall Equity Ltd for instructing, causing or inducing that discrimination. The tribunal found that the communications from Stonewall critical of Ms Bailey were just a protest and not sufficient to amount to an inducement, or attempted inducement, of any particular course of against her by the chambers.

On 14 May, the EAT will consider when and whether the line between lawful protest and unlawful inducement was crossed. Should Ms Bailey's appeal succeed, this could have wide ramifications for Stonewall's workplace campaigns.

Watch this space!

1. Gender identity beliefs – Higgs v Farmor's School

Acceptable or unacceptable manifestation of belief?

While those holding a gender-critical belief are protected under the Equality Act 2010 (as are those holding a gender identity belief), the manifestation of such a belief may, depending on the circumstances, be restricted.

In Higgs v Farmor's School, a tribunal found that a Christian employee was not discriminated against due to her gender critical beliefs as her dismissal was not due to her holding of those beliefs, but the inflammatory language used in social media posts. However, in 2023 the Employment Appeal Tribunal (EAT) allowed Mrs Higgs appeal on the basis it was not enough for the tribunal to find that the employer was motivated by a concern that Mrs Higgs could be perceived to hold "wholly unacceptable views"; it needed to consider whether the employers motives had arisen out of Mrs Higgs' manifestation of belief and so protected under the Equality Act 2010, or by a justified objection to that manifestation of belief, and so not protected. The employer has now obtained permission to appeal. We can look forward to Court of Appeal guidance on this difficult issue. To what extent is there a requirement that individuals need to express their beliefs "nicely" in social media posts?

Watch this space!

1. Religious beliefs - Omooba v Michael Garrett Associates Ltd

Acceptable or unacceptable manifestation of belief take two?

This time regarding religious homophobic beliefs. In December 2023, the Employment Appeal Tribunal( EAT) considered  the lower tribunal's rejection of an actor's claims for direct and indirect religion or belief discrimination and harassment against a theatre and her agent. The actor was fired from the play 'The Color Purple' and dropped by her agency over a social media storm caused by a historic allegedly homophobic Facebook post that was shared on Twitter. Other members of the play's cast and production team strongly expressed concerns about working with her and the director felt the posts would have an adverse impact on the production (cast trust, audience connection, reduced sales, protests).

It will be interesting to see how the EAT decides this case on the line between acceptable and unacceptable manifestation of beliefs.

Watch this space!

1. Anti-'woke' beliefs – Corby v Advisory, Conciliation and     Arbitration Service

Is an opposition to 'woke' politics a protected philosophical belief?

Another case centred around an increasingly polarised public discourse played out over social media posts. This time the employee's posts were highly critical of what he described as "woke" or "critical theory" approach to racism, which he argued was divisive. Instead, he suggested the better approach to anti-racism were anti-racist beliefs based on the ideas of Martin Luther King Jr where people are judged by their character rather than the colour of their skin, and emphasising what people of all races have in common.

At a preliminary hearing in September 2023, the tribunal agreed that the employee's particular anti-racist views were a protected belief under the Equality Act 2010. Simply articulating views another employee finds offensive, does not amount to harassment but drawing the line between a legitimate expression of (potentially unpalatable) views and harassment is not always easy. It will be interesting to see how the tribunal addresses the issues in this case.

Subject to a pending application for permission to appeal to the Employment Appeal Tribunal, the substantive hearing should take place sometime in 2024.

Watch this space!

1. Anti-feminist beliefs – Legge v Environment Agency  

Is anti-feminism a protected belief?

On 15 January, the Watford tribunal began to hear a 13-day hearing of a claims by a male employee alleging he was discriminated against because he does not hold a feminist philosophical belief. The prevailing theme to his claims is that the employer's management were pursuing a feminist agenda, seeking to appoint or promote women rather than men to management positions to which he objected. Again, it will be interesting to see how the tribunal addresses the issues raised.

Watch this space!

Who said employment law was boring!