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Employment Case Law Update – October 2021

Regular readers of our blogs here at ViewHR know that we like to stay up-to-date with the latest Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) outcomes that may offer some interesting learning for employers. In this latest edition, we explore recent judgements relating to part-time workers, discrimination due to pregnancy, and following government guidance in relation to Covid-19. Read on for more details…

Forth Valley Health Board v James Campbell

This EAT case centred around the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, and the difference in treatment between full and part time workers. Mr Campbell, the Claimant, tried to argue that not receiving paid breaks was unlawful as full-time workers received paid breaks, thus constituting unfavourable treatment.

Mr Campbell’s argument was successful at the original ET hearing, who agreed that he had experienced less favourable treatment compared to a full-time counterpart. However, the EAT overturned the decision on the basis that it was not because Mr Campbell worked part time that he did not receive paid breaks but because of the particular number of hours he worked in one shift. The EAT established that a full time worker doing the same length of shift also would also miss out on a paid break.

The EAT held that in claims of this nature, a “but for test” should be applied; “but for” the employee being a part time worker would the same treatment still be received? If the answer is yes, as was the case here, the employee has not experienced unfavourable treatment on account of being part-time.

Ms A Kinlay v Bronte Film and Television Ltd

In this case, Ms Kinlay (the Claimant) had previously played a minor role in a previous instalment of a show produced by Bronte Film and Television. Ms Kinlay had been due to appear again in the same role, but this was to be more pivotal to the plot as the story progressed. Ms Kinlay advised Bronte Film and Television that she was 12 weeks pregnant, and the decision was then made not to cast the Claimant after all.

Ms Kinlay brought a claim for discrimination based upon her pregnancy. Bronte Film and Television refused this, stating that because it was not possible for Ms Kinlay’s character to be pregnant, then a Genuine Occupational Requirement (GOR) for the actor playing the character not to be pregnant applied.  

The Tribunal upheld the claim, finding that the Claimant’s pregnancy could have been concealed through the use of costume, camera angle, props, the positioning of other actors and make up if appropriate.

The employer argued that their actions had been proportionate, giving various reasons such as not constraining the director’s creative vision, additional costs, changes to filming arrangements, and difficulties with insurance. These arguments were all rejected by the Tribunal.

Whilst only an ET case (rather than an EAT case), this judgement nonetheless highlights the importance of employers not making assumptions that a Genuine Occupational Requirement will apply, if they wish to discriminate based on the nature of the job role.

Miss A Prosser v Community Gateway Association Ltd

In other recent case law updates, we have highlighted that ET judgements relating to decisions made by employers during the early days of the first Covid-19 lockdown have started to trickle through.  This month we are able to report on another interesting one.

In this case, Miss Prosser (the employee) informed her employer that she was pregnant ten days before the first lockdown began.  Her employer sent her home, and told her not to come to work, because the government had (at that time) issued guidance specifying that pregnant women were classified as clinically vulnerable. She was on a zero-hour contract but was kept on full pay. She argued that being sent home was direct discrimination.

Miss Prosser’s claim was unsuccessful. The ET found that she did receive less favourable treatment, however there was no direct discrimination because she continued to be paid in full, and the employer acted on the government’s guidance at that time.  

This case is reassuring for employers who sought to act in the best interests of their employees and in accordance with government guidance. However, it should always be remembered that employment tribunal cases are decided on the facts of each specific case, and that employment tribunal decisions are not binding on other tribunal decisions (unlike EAT decisions), and so it cannot also be assumed that similar cases will always receive the same outcome.

Here at ViewHR we support employers with a wide range of HR matters. If you are an employer facing a difficult situation and would like to understand the potential legal risks, please contact is today for an initial discussion.