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Employment law update – July

Manifestation of belief

In the recent case of Higgs v. Farmor’s School, the Employment Appeal Tribunal (“EAT”) offered some useful guidance as to the importance of proportionality in cases where an employer could be said to have interfered with the employee’s right to freedom of belief and expression.

Mrs Higgs was a pastoral administrator and work experience manager for the respondent; a secondary school in Gloucestershire. Following a series of posts to the claimant’s Facebook account, a parent of one of the students at Farmor’s School reached out to the Head Teacher by email to express their concern about the content of the posts; namely that they implied that Mrs Higgs held discriminatory views and was therefore unfit to work with vulnerable LGBTQIA+ students. The posts in question referred to gender fluidity as a “perverted vision” and claimed that “the LGBT crowd with the assistance of the progressive school systems (were) destroying the minds of normal children by promoting mental illness”.

Mrs Higgs was suspended and subject to a disciplinary process despite her claims that she did not hold homophobic or transphobic views. The investigation that followed resulted in her dismissal. She brought claims of direct discrimination and harassment on the grounds of her belief in marriage as a union between one man and one woman and her “gender-critical” beliefs. While the Employment Tribunal (“ET”) accepted that these were protected beliefs and were therefore worthy of protection, it still dismissed her claim. Her dismissal was a result of the “florid and provocative language” used in the Facebook posts which could reasonably have led people to believe that she held discriminatory views regardless of whether or not that was in fact true.

Mrs Higgs appealed the ET’s decision and the EAT upheld her appeal. The ET had not properly engaged with the question of whether Mrs Higgs’ posts were a manifestation of her beliefs. They had not applied the test in Eweida and others v United Kingdom [2013] ECHR 37 to determine whether there was a “sufficiently close and direct nexus” between the posts and her beliefs. Therefore, they hadn’t determined whether the posts, as a form of manifestation, were sufficiently objectionable to allow the school to dismiss her. The case was remitted to the ET for reconsideration.

The EAT clarified that while the freedom to one’s beliefs is an essential right, it is also a qualified right that may, in some circumstances, be limited where: (i) there is an objective important enough to justify the limitation; (ii) the limitation is genuinely linked to that objective; (iii) there is no less-intrusive means of interference; and (iv) the objective is more important than the right of manifestation.

The following factors may be relevant: –

i. the content of the manifestation;
ii. the tone used;
iii. the extent of the manifestation;
iv. the worker’s understanding of the likely audience;
v. the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business;
vi. whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk;
vii. whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon;
viii. the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; and
ix. whether the limitation imposed is the least intrusive measure open to the employer.

Whether or not Mrs Higgs’ dismissal was a reasonable response to the Facebook posts remains to be seen. However, the EAT decision provides a useful framework against which to make that decision and other decisions like it going forward.

Holiday pay

For those in the Employment Law and HR sphere, holiday pay is something of a hot-button issue. In the recent case of Connor v Chief Constable of the South Yorkshire Police [2023] EAT 42, the EAT considered whether a ‘relevant agreement’ could result in an employee receiving a lower payment for his accrued holiday on termination than he would have for regular holiday taken in the course of his employment.

The claimant was employed by the Chief Constable of the South Yorkshire Police. He worked 27-hour weeks and was paid the same for a week of holiday as he was for a week of work. However, his contract stated that on termination of employment, a payment for accrued but untaken annual leave would be based on “1/365th of annual salary for each day’s leave”.

Holiday pay is calculated in accordance with the Working Time Regulations 1998 (“WTR”) which state that the amount taken will be either: –

a. such sum as may be provided in a relevant agreement; or

b. where there is no relevant agreement, a sum equal to the amount that would be due to the worker using the formula set out in the WTR.

The above contractual term was a relevant agreement for the purposes of the WTR and as such, the ET at first instance dismissed his claim. Mr Connor appealed on grounds that a so-called relevant agreement could not reasonably result in him being paid less than the usual amount that he would have been paid in the course of their employment.

The EAT disagreed with Mr Connor’s calculation, stating that both parties had over-complicated the matter, but nevertheless agreed that a relevant agreement could not provide for a calculation which would result in an individual being “paid less than the usual amount they would have been paid for working when holiday pay is calculated”.

Employers may want to be pragmatic in their approach to calculating holiday pay and entitlement, considering legislative changes in this area may well be on their way. While mainly concerned with holiday entitlement for part year workers, it’s possible any new legislation governing holiday entitlement will also deal with payments in lieu on termination of employment giving all parties welcome clarification when it comes to tricky holiday pay calculations.

Discimination and harassment

In Greasley-Adams v Royal Mail Group Limited [2023] EAT 86, the EAT considered whether it might be possible to be a victim of harassment if you aren’t aware of the harassing conduct later complained of.

Mr Greasley-Adams was an autistic individual employed by Royal Mail as a delivery driver. Over time, his working relationships with two of his colleagues, Mr Knox and Mr McEwen, deteriorated to such an extent that the two men made bullying and harassment complaints against him. These complaints were upheld by the respondent and recommendations were subsequently made as to what should be done to manage the relationship going forward.

As a result of information that came to light during the investigation process, Mr Greasley-Adams submitted a grievance which included complaints of harassment against Mr Knox and Mr McEwan. He alleged that the men had engaged in unwanted conduct in the form of gossip and disparaging remarks about his disability. His grievance was not upheld and he subsequently brought an Employment Tribunal claim against the respondent, Royal Mail Group Limited.

According to Section 26(1) of the Equality Act 2010 (“the EA 2010”), a person (A) harasses another person (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. In deciding whether the conduct that effect, the following factors in Section 26(4) of the EA 2020 must be taken into account: –

  • The perception of B;
  • The other circumstances of the case; and
  • Whether it is reasonable for the conduct to have that effect.

The parties were in agreement that Mr Greasley-Adams’ autism was a protected characteristic. The question was whether the unwanted conduct of Mr Knox and Mr McEwan could reasonably be said to amount to harassment, given Mr Greasley-Adams was not aware of it at the time that it was happening.

The EAT said it could not. The EA 2010 Section 26(4) specifically states that the perception of B must be taken into account. This reading of the Act is consistent with Pemberton v Inwood [2018] EWCA Civ 564 which states that “if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect”.

Not only does this case provide an answer to an obscure and interesting question, it should also reassure employers that they can feel confident undertaking investigations without concern for tit-for-tat complaints that may arise when staff speak freely about their complaints.

Legal priviledge in investigations

And finally, in the University of Dundee v Prasun Chakraborty [2023] CSIH 22 XA17/23, we were delighted to have been instructed by Dr Chakraborty and proud to have successfully opposed the University of Dundee’s appeal to the Court of Session. In this appeal, the Inner House of the Court of Session considered whether legal advice privilege could retrospectively apply to the original version of a report which the University amended following advice from their solicitors.

Dr Chakraborty was employed by the University of Dundee, from 28 January 2013 to 30 December 2021 and raised a grievance on grounds that he had been subject to racial abuse, discrimination, harassment, and bullying.

The University commissioned a report on the substance of Dr Chakraborty’s allegations which was subsequently amended and re-issued four times by the University’s own admission. When Dr Chakraborty expressed his concerns and sought disclosure of the original report, the University refused on grounds that disclosure of the original would reveal the nature of the advice from their solicitors; advice that they contended was protected by privilege.

It’s an interesting question: can the application of legal advice to a document make the original version confidential? The Employment Tribunal, the Employment Appeal Tribunal, and now the Inner House of the Court of Session have all confirmed that it cannot in the circumstances of this case.

In its judgment dated 1 June 2023, the Inner House confirmed the position of the Employment Appeal Tribunal; that while ‘the terms of any advice given by the solicitor’ and ‘any amended version of the original document created for the purpose of the litigation’ will be protected by privilege, the original un-amended version which importantly was not created on the advice of a solicitor (and was, indeed, created prior to the solicitor’s involvement) will not.

Perhaps the most important take-away from the Chakraborty case pertains to employers; legal advice privilege is not a catch-all protection in instances where grievance/disciplinary procedures have been conducted poorly. If you have any doubts or concerns, it is prudent to consult your solicitor sooner rather than later.

As always, the Employment Law team at Balfour+Manson are on hand to provide guidance on all HR and Employment Law issues. Whether you are an employer or an employee – please do get in touch to discuss your requirements.