Frontline UK Employment Law Update Edition 6 2021 - Case Updates

1. Gibson v Lothian Leisure ET/4105009/2020

2. The Independent Workers Union of Great Britain v The Central Arbitration Committee [2021] EWCA Civ 952

3. Dobson v North Cumbria Integrated Care NHS Foundation Trust UKEAT/0220/19

4.Forstater v CGD Europe and others UKEAT/0105/

5.Accattatis v Fortuna Group (London) Ltd 3307587/2020

6.Natwest Markets Plc and another v Bilta (UK) Ltd and others [2021] EWCA Civ 680

1. Gibson v Lothian Leisure ET/4105009/2020 - LINK

In this case, the Claimant was held by the Employment Tribunal ("ET") to have been automatically unfairly dismissed for raising issues related to health and safety at work during the COVID-19 pandemic.

The Claimant was employed as a chef at the "Sun Inn" from February 2019 but was put on furlough from March 2020. His father had health problems making him clinically vulnerable and was therefore shielding during lockdown. 

During furlough, the Respondent asked Mr Gibson to "come in and help out for a bit" in advance of re-opening. The Claimant expressed concerns about his father catching Covid-19 due to his return to work. He was concerned that the Respondent provided no PPE for staff and had no intention of requiring staff to take precautions and make the workplace COVID secure. When the Claimant expressed these concerns, he said that the Respondent's response was very negative, and he was told to "shut up and get on with it". 

Without any notice, the Claimant's employment was terminated via a text from one of the Respondent's directors on 30 May 2020. By way of explanation, the text stated that the business would be run with a smaller team at the end of lockdown. Mr Gibson received no notice pay nor pay in lieu of accrued untaken annual leave.

The ET held that the Claimant's dismissal had been automatically unfair pursuant to section 100(1)(e) of the Employment Rights Act 1996 ("ERA") which states that an employee is unfairly dismissed where the sole or principal reason for the dismissal is that, "in circumstances of danger which the employee reasonably believed to be serious and imminent, he took…appropriate steps to protect himself or other persons from the danger". Alternatively, if, as the text message suggested, he was dismissed by reason of redundancy, his selection for redundancy was because he had taken those steps and his dismissal was automatically unfair pursuant to section 105(3) of ERA, which prohibits selection for redundancy where the reason for selection is as set out above.

The ET held, based on the evidence, that the Claimant had taken reasonable and appropriate steps to raise concerns with his employer over his father's health and a lack of PPE at work. Until the Claimant raised these concerns, he had been valued in his team. After raising them and because he had raised them, he was dismissed. The ET found that the spread of COVID-19 and potential for significant harm to the Claimant's father if he was infected were circumstances of danger which the Claimant reasonably believed to be imminent and serious. 

Claims brought under section 100 of ERA were once few and far between. COVID-19 has changed that: this case is one of two recently reported ET decisions on the application of section 100 to dismissals in the context of the COVID-19 pandemic. We will no doubt continue to see these cases filter through the system for some time to come.

2.The Independent Workers Union of Great Britain v The Central Arbitration Committee [2021] EWCA Civ 952 - LINK

In this case, the Court of Appeal ("CA") found that the right to freedom of assembly and association under Article 11 of the European Convention on Human Rights ("ECHR") did not apply to Deliveroo riders as they were not deemed "workers" within the meaning of Section 296(1) Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA").

The Independent Workers Union of Great Britain (the "Union") applied to the Central Arbitration Committee ("CAC") to be recognised by Deliveroo for compulsory collective bargaining in respect of a group of Deliveroo riders. The CAC rejected the Union's application on the grounds that the riders were not "workers" under Section 296(1) TULRCA (defined as an individual who works, or normally works or seeks to work under either: (i) a contract of employment; or (ii) any other contract whereby they undertake to do or perform personally any work or services for another party to the contract who is not a professional client of theirs. In a 2017 decision, the CAC had held that Deliveroo riders did not have any obligation to perform services "personally" as they were free to provide a substitute to perform their deliveries.

Therefore, the Deliveroo riders were not eligible to collectively bargain nor seek trade union recognition. 

The Union then unsuccessfully applied to the High Court for judicial review of the CAC's decision. The High Court rejected the Union's argument that the definition of worker under Section 296(1) TULRCA should be interpreted in a way that does not exclude Deliveroo riders from exercising Article 11 rights. The High Court found that none of the case law of the European Court of Human Rights extended Article 11 rights outside an employment relationship. 

The Union appealed the decision. The CA dismissed the appeal, holding that the Deliveroo riders were not in an employment relationship with Deliveroo for the purpose of Article 11 given they were under no obligation to provide services personally. They had a virtually unlimited right of substitution, no obligation to work at any particular time, and freedom to work for a competitor.

This decision emphasises the significance of personal service when determining worker status and provides useful guidance on the approach to be taken in determining an employment relationship within the context of Article 11. In his decision, Underhill LJ accepted that there may be other cases where, on different facts and with a broader range of available arguments, a different result may eventuate. For example, in contrast to the Uber decision (reported here), which found Uber drivers were workers, this case concerned quite a narrow point, namely the scope of Article 11 and the personal service obligation (neither of which featured in Uber).

3.Dobson v North Cumbria Integrated Care NHS Foundation Trust UKEAT/0220/19 - LINK

In this case, the Employment Appeal Tribunal ("EAT") held that an Employment Tribunal ("ET") must take judicial notice of the "childcare disparity" in cases of indirect sex discrimination. In particular, the ET should note that women are less likely to be able to take on certain flexible working arrangements than men because of their childcare responsibilities.

The Claimant was employed as a community nurse by the Respondent and following a successful flexible working request, she worked 15 hours per week over two fixed weekdays. The Claimant has three children, two of whom are disabled, and had childcare responsibilities on her non-working days. The Respondent carried out a working pattern review in 2016 pursuant to which the Claimant was asked to work an occasional weekend.

The Claimant rejected the proposed changes due to her childcare commitments and raised a grievance, however the grievance was rejected, as was the Claimant's appeal. The Claimant was subsequently informed that the Respondent had no option but to dismiss her and re-engage her on new terms. The Claimant did not accept the new terms and the Respondent terminated her employment, dismissing the Claimant's subsequent appeal against her termination.

The Claimant brought claims for unfair dismissal, victimisation and indirect sex discrimination, claiming that as women disproportionately bear the burden of childcare responsibilities, a requirement to work weekends puts them at particular disadvantage compared to men and also placed her at a disadvantage personally. The ET dismissed all of her claims. In relation to the indirect sex discrimination claim, it held that the Respondent had a Provision, Criterion or Practice ("PCP") that its community nurses work flexibly, including weekends, that this applied equally to men and women and that it did not place women at a disadvantage. The Claimant appealed. The charity, Working Families, was given permission to intervene on the question of whether the ET should have taken judicial notice of the greater childcaring responsibilities of women.

The EAT allowed the appeal and remitted the issues of indirect discrimination and unfair dismissal to be reconsidered by the same ET. The EAT held that the ET had been wrong to determine the pool for comparison by reference only to the small number of employees working in the Claimant's team instead of the Respondent's employees as a whole. It also held that the ET ought to have taken judicial notice of the fact that women were (or would be) disadvantaged by the requirement to work flexibly, including at weekends, and had also failed to consider whether the PCP "would put" women at a particular disadvantage compared to men.

This case serves as a timely reminder of the potential impact of changed working arrangements, given that COVID-19 has prompted many employers to look at such changes. It emphasises the need to take into account childcare disparity when considering whether changes are indirectly discriminatory. It is worth noting that the EAT's conclusion that this case would not necessarily mean that the childcare disparity would always render any requirement for women to work flexibility discriminatory: depending on the appropriate pool for comparison, women may not be placed at a disadvantage by a PCP; or the relevant PCP may be justified as a proportionate means of achieving a legitimate aim. 

4.Forstater v CGD Europe and others UKEAT/0105/ - LINK

In this case, the Employment Appeal Tribunal ("EAT") reversed an Employment Tribunal's ("ET") decision, and held that a gender-critical belief is capable of amounting to a "philosophical belief" for the purposes of the Equality Act 2010 ("EqA"). 

The Claimant was contracted by the Respondent as a visiting fellow in January 2015. In 2019, the Claimant expressed her belief on social media (in relation to possible reforms to the Gender Recognition Act) that it is impossible for a person to change their sex and that trans women are men. Some of the Claimant's colleagues deemed the Claimant's comments to be offensive and following an investigation by the Respondent into the Claimant's conduct, the Claimant's contract was not renewed in March 2019. The Claimant claimed the non-renewal of her contract was unlawful discrimination because of her gender-critical beliefs. 

The ET considered the case of Grainger plc v Nicholson (2010) in which the EAT set out five criteria for the establishment of a protected belief (the "Grainger Criteria") as follows:

  1. the belief must be genuinely held;
  2. it must be a belief, not an opinion or viewpoint based on the present state of information available;
  3. it must be a belief as to a weighty and substantial aspect of human life and behaviour;
  4. it must attain a certain level of cogency, seriousness, cohesion and importance; and
  5. it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. 

The ET found that whilst the Claimant's "absolutist" beliefs satisfied the first four criteria, it did not satisfy the fifth. Namely, the belief was not worthy of respect in a democratic society. The ET held that a person cannot expect their belief to be protected if it involves violating the dignity of others and/or created an intimidating, hostile, degrading, humiliating or offensive environment for them. 

The Claimant appealed the decision and the EAT upheld the appeal, concluding that the Claimant's belief was a protected philosophical belief under Section 10 of the EqA. The EAT held that the interpretation of Section 10 of the EqA should be informed by Article 9 (right to freedom of thought, conscience and religion) and Article 10 (right to freedom of expression) of the European Convention on Human Rights ("ECHR"). The EAT also stated that "a person is free in a democratic society to hold any belief they wish, subject only to some modest, objective minimum requirements". It held that a philosophical belief would only be excluded for failing the fifth limb of the Grainger Criteria if it was akin to Nazism or totalitarianism and therefore capable of exclusion under Article 17 of the ECHR (which clarifies that the ECHR does not permit activity aimed at the destruction or unlawful limitation of a person's ECHR rights). The EAT has remitted the case to a freshly constituted ET to determine whether the Claimant had suffered discrimination in relation to her belief.

This case highlights to employers that employees with gender-critical views are entitled to protection from discrimination and harassment, and at a broader level serves as a reminder that opposing beliefs should be tolerated within the employment context. The EAT was at pains to make clear that its judgment does not mean that those with gender-critical beliefs can "mis-gender" trans people with impunity; nor that trans persons do not themselves have protections against discrimination; nor that employers and service providers will not be able to provide a safe environment for trans persons. Employers continue to be liable for acts of harassment and discrimination against trans persons committed in the course of employment. Employers must strike a balance between the rights of individuals to hold particular beliefs, and the rights of people with protected characteristics to whom those beliefs relate. This balancing act may sometimes be difficult.

5.Accattatis v Fortuna Group (London) Ltd 3307587/ - LINK

In this case, the Employment Tribunal ("ET") held that the dismissal of an employee who had expressed concerns about commuting and working in the office during lockdown and had repeatedly asked to be furloughed was not automatically unfair under section 100(1)(e) of the Employment Rights Act ("ERA") 1996.

In March and April 2020, the Claimant explained to the Respondent that he was uncomfortable using public transport and working in the office due to COVID-19 and he asked the Respondent if he could either work from home or be placed on furlough. The Respondent told the Claimant that his job could not be done from home, and that furlough was not possible because the business was so busy, but that he could instead take holiday or unpaid leave. The Claimant declined and after three more requests of the same nature, he was dismissed for general ongoing failure to support and comply fully with company policies and guidelines. The Claimant claimed automatic unfair dismissal under section 100(1)(e) of the ERA. He did not have the two years' qualifying service required to bring a claim of "ordinary" unfair dismissal. 

The ET found that although the Claimant reasonably believed that there were circumstances of serious and imminent danger, he had not taken appropriate steps to protect himself from danger nor had he communicated the circumstances of danger to the Respondent. The Claimant's demands that he be allowed to work from home on full pay, or in the alternative be furloughed on 80% pay were not appropriate steps to protect himself from danger in the circumstances. The ET found that the real reason for the Claimant's dismissal was to prevent him from achieving protection against unfair dismissal because he was perceived to be a difficult employee who had been demanding to be furloughed or to work from home in "impertinent" terms. The claim was therefore dismissed.

This case provides an interesting contrast with the Gibson case, reported elsewhere in this update. It underlines that the pandemic may not on its own justify a refusal to attend work under section 100(1)(e) of ERA if the employer has reasonably tried to accommodate the employee's concerns and reduce transmission risk, and if the employee's actions are not appropriate steps to protect him or herself from danger.

6.Natwest Markets Plc and another v Bilta (UK) Ltd and others [2021] EWCA Civ 680 - LINK

In this case, the Court of Appeal ("CA") held that both the original employer and “host” employer of two seconded employees could be found vicariously liable for the employees' alleged dishonest assistance and knowing participation in fraudulent trading.

The High Court ("HC") had held that during a VAT fraud in 2009 relating to the purchase and sale of carbon credits, which cost HMRC over £44 million, two traders had deliberately ignored the risk of VAT fraud when trading with another company. The two traders were seconded from one company to another at the time, so had employment contracts with one entity (their original employer) but performed their day-to-day duties for the other (the host). The HC had concluded that the facts of the case were a paradigm for dual vicarious liability, making both the original employer and the host employer during secondment vicariously liable for the traders' misconduct. The original employer appealed against that decision, arguing that the loan of the employees was so comprehensive that only the host employer should be held liable.

The CA dismissed the appeal. The CA agreed with the HC's finding that in relation to both the original employer and host employer, the traders were "so much a part of the work, business or organisation… that it would be just to make both companies liable for any wrongs that the Traders committed to third parties". In dismissing the argument, the CA also noted that it would be very rare for liability to shift entirely to a host employer where it is seconded away from its original employer. This would depend on the circumstances of the case, but there have been no reported cases to date in which liability has been found to have shifted entirely in this way.

This case provides a helpful reminder to employers that they remain exposed to the risk of vicarious liability in respect of their employees' actions, even where they have been loaned or seconded to another organisation. Such cases are highly fact-sensitive and will depend on the individual circumstances of the employment relationship, but a total transfer of liability is very rare. However, the CA also acknowledged in this case that "the law of vicarious liability is on the move". As such, employers should stay abreast of legal developments in this area. Where employers are loaning their employees, it is crucial for the agreement with the host to address the risk of vicarious liability and allocate the financial costs in an appropriate way.

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