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Employment Case Law Update – September 2021

Regular readers will know that here at ViewHR we like to stay up-to-date with the latest employment law cases, so that we can bring you the impacts these may have for you as employers.  Since our last case law update, employment tribunals and the employment appeals tribunal have continued to be busy.  In this blog we look at key recent cases, and their potential implications. 

Forstater v CGD Europe & Others

The case of Forstater v CGD Europe & Others relates to an employee whose contract was not renewed following complaints that she had made allegedly transphobic comments.  The employee complained that she had been discriminated against based on grounds of belief under the Equality Act 2010; namely the beliefs that sex is unable to be changed and is not to be conflated with gender or gender identify. 

The original employment tribunal case considered the requirement of any belief protected under the Equality Act be “worthy of respect in a democratic society, not be incompatible with human dignity, nor conflict with the fundamental rights of others”, and as such found the employee’s beliefs not to be protected.  However, the subsequent employment appeal tribunal disagreed, finding that offensive views may still be subject to protection, and the employee was found to have been discriminated against. 

In giving its judgement, the employment appeals tribunal highlighted that they were not seeking to take sides in any debate regarding gender identities, or undermine the protections for people with the protected characteristic of gender reassignment under the Equality Act. 

This case demonstrates that it is not always easy to determine if a belief is protected under the Equality Act, and also that views that many may regard as unpalatable may still be protected.  There is the potential that this question will arise again in relation to beliefs people may hold leading to their refusal of Covid vaccination. 

Somerville v Nursing and Midwifery Council 

In the case of Somerville v Nursing and Midwifery Council (NMC), the NMC sought to argue that because Somerville did not have a minimum degree of obligation (i.e. did not have to accept a minimum amount of work, and could withdraw from work accepted), that they did not qualify as a worker, and therefore were not eligible for statutory holiday.  However, the employment appeals tribunal found that there was an overarching agreement for the provision of the claimant’s services, and that they did qualify as a worker (and, therefore, for the rights of a worker).  This case has implications for employers seeking to determine the status of potential workers and their entitlements. 

Accattatis v Fortuna Group and Gibson v Lothian Leisure

And finally, further to our recent blog on the impacts of Covid on employee relations matters, in which we reported on the case of Katun v. Winn Solicitors Ltd, further Covid-related cases have been making it through the employment tribunals. 

There have now been judgements in the cases of Accattatis v Fortuna Group, and Gibson v Lothian Leisure.  Both of these cases relate to the question of employees protecting themselves from a serious and imminent threat to health and safety.  In both cases, the tribunals agreed that each employee had believed that Covid was such a threat.  However, the tribunals found differently regarding the reasonableness of the employers’ actions in accommodating these concerns. 

In the case of Accattatis v Fortuna Group, Mr Accattatis was concerned about commuting to work, and so the employer explored a range of options including holiday and unpaid leave for times when working from home or furlough was not appropriate.  Mr Accattatis refused these options, and it was therefore found that he was not unfairly dismissed.  However, in the case of Gibson v Lothian Leisure, when the employee raised concerns about PPE and Covid-secure measures, the employer behaved with a “shut up and get on with it” attitude. 

These cases have been heard by employment tribunals only at this time, and therefore may be subject to appeal.  However, as employers continue to reckon with the impacts of Covid-19, it is useful to understand how tribunals are viewing the decisions employers have made during those exceptional times.  It is notable that in both of these cases, even though the employees were found to have valid concerns, this did not in itself lead to a judgement of unfair dismissal – rather, the facts of the case were considered to determine the reasonableness of the actions of each employer. 

If you are an employer and would like to discuss the implications of these outcomes on your practices, View HR will be pleased to discuss with; please contact us today for an initial conversation.