This month we look at the saga of the ‘fire and rehire’ issue affecting Tesco employees and how whistleblowers can be fairly dismissed depending on their conduct. We also have two interesting cases about how direct discrimination can be viewed – the doctor who refused to address transgender people by their chosen pronouns who had not been discriminated against versus the feminist who expressed beliefs which could not be objected to (as core beliefs) even though they were capable of causing offence, and was discriminated against.
- Fire and Rehire: Court of Appeal overturns injunction restraining termination and re-engagement of Tesco employees
- Whistleblowing: Whistleblower’s dismissal not automatically unfair as decision-makers’ view of conduct when making protected disclosures separable from content or fact of disclosures
- Direct Discrimination: EAT upholds tribunal decision that Christian doctor was not discriminated against for refusing to address transgender people by their chosen pronoun
- Direct Discrimination: Gender critical feminist suffered direct discrimination for expressing her beliefs in a manner that was not “objectively offensive”
Fire and Rehire: Court of Appeal overturns injunction restraining termination and re-engagement of Tesco employees
In USDAW and others v Tesco Stores Ltd  EWHC 201, the Court of Appeal has overturned the High Court’s injunction restraining Tesco from dismissing and re-engaging a group of warehouse operatives to remove a contractual pay enhancement known as “Retained Pay“. This had been incorporated through collective bargaining with the trade union USDAW as a retention incentive during a reorganisation. The collective agreement stated that the enhanced pay would be a “permanent feature” of each affected employee’s contractual entitlement, and could only be changed through mutual consent, or on promotion to a new role.
The High Court had found that there was an implied term not to use termination and re-engagement as a means of removing Retained Pay. However, the Court of Appeal held that such an implied term was not justified. Neither could the employees rely on promissory estoppel since there had been no unequivocal promises related to termination. Furthermore, it was not “unconscionable” to remove a benefit that the employees had already received for over a decade and that far exceeded any redundancy payment to which they would have been entitled had they not accepted the Retained Pay.
In any event, even if there had been a breach, the court held that the injunction was not justified. The court was not aware of any previous cases in which a final injunction had been granted to prevent a private sector employer from dismissing an employee for an indefinite period. Moreover, the terms of the injunction had not been sufficiently clear.
Whistleblowing: Whistleblower’s dismissal not automatically unfair as decision-makers’ view of conduct when making protected disclosures separable from content or fact of disclosures
In Kong v Gulf International Bank (UK) Ltd  EWCA Civ 941, the Court of Appeal has upheld the EAT’s decision that an employment tribunal directed itself properly on the issue of the separability of the protected disclosures made by an employee and the reason in the minds of the decision-makers for her dismissal. The tribunal had properly considered and applied the guidance on the issue set out in authorities such as Martin v Devonshire Solicitors UKEAT/0086/10 and NHS Manchester v Fecitt and others  IRLR 64. Despite the fact that the tribunal had found that the employee’s conduct when making the protected disclosures had been broadly reasonable and she had not, as alleged, questioned her colleague’s professional integrity, her dismissal was not automatically unfair because the decision-makers believed that she had acted unreasonably. The reason for dismissal in the minds of the decision-makers could be properly separable from the fact of the protected disclosures being made. The court rejected the submissions of Protect as intervenor that an employee’s conduct in making a disclosure should only be properly considered separable from the making of a protected disclosure where that conduct constitutes wholly unreasonable behaviour or serious misconduct.
This decision makes it clear that even where a worker’s conduct is not objectively unreasonable when they make a protected disclosure, their employer may escape liability when it treats them detrimentally or dismisses them because it subjectively believes that the manner in which they made the disclosures was unreasonable. However, the court stressed that particularly close scrutiny of an employer’s reasons for treating them detrimentally would be needed in such a case to ensure that the real reason for adverse treatment was not the protected disclosure itself.
It is understood that the employee is considering an appeal to the Supreme Court.
Direct Discrimination: EAT upholds tribunal decision that Christian doctor was not discriminated against for refusing to address transgender people by their chosen pronoun
In Mackereth v DWP  EAT 99, the EAT has held that a tribunal did not err in dismissing a Christian doctor’s claims of direct discrimination, indirect discrimination and harassment on grounds of religion or belief because of his refusal to address transgender service users by their chosen pronouns. He relied on his particular beliefs in the supremacy of Genesis 1:27 that a person cannot change their sex/gender at will, his lack of belief in what he described as “transgenderism” and his conscientious objection to “transgenderism“. However, Eady P, sitting with lay members, found that the tribunal had erred in several respects when applying the criteria from Grainger Plc v Nicholson UKEAT/0219/09 to determine whether these beliefs were capable of protection under section 4 of the Equality Act 2010. In particular, the tribunal had erred in holding that the beliefs were not worthy of respect in a democratic society. This threshold must be set at a low level so as to allow for the protection not just of beliefs acceptable to the majority, but also of minority beliefs that might cause offence (approving Forstater v CGD Europe UKEAT/0105/20).
The tribunal had been entitled to find in the alternative that the direct discrimination and harassment claims were not made out. It was permissible to draw a distinction between Dr Mackereth’s beliefs and the way he manifested them, finding that any employee not prepared to utilise a service user’s chosen pronoun would have been treated the same way.
The tribunal had also been entitled to reject the indirect discrimination claim. In holding that the PCPs were necessary and proportionate, it carefully considered the lack of practical alternatives to face-to-face contact with service users. In noting that Dr Mackereth had not identified any further alternatives, over and above those considered and discounted by his employer, this did not amount to the imposition of the burden of proof on him.
Direct Discrimination: Gender critical feminist suffered direct discrimination for expressing her beliefs in a manner that was not “objectively offensive”
In Forstater v CGD Europe and others ET/22200909/2019, an employment tribunal has upheld a claim of direct discrimination on ground of belief, where an individual’s contract was not renewed because she had expressed gender critical beliefs which some colleagues found offensive. This follows an earlier EAT judgment in which her gender critical beliefs had been held to be protected as a philosophical belief under the Equality Act 2010. They included the belief that a person’s sex is an immutable biological fact, not a feeling or an identity, and that a trans woman is not in reality a woman. The claimant had described a prominent gender-fluid individual as a “part-time cross dresser” and a “man in heels” who should not have accepted an accolade intended for female executives. She had also left a gender critical campaign booklet in the office (which she later apologised for) and posted a campaign video on twitter containing ominous music and imagery, which argued that gender self-ID put women and girls at greater risk.
The respondents argued that it was the way in which the claimant had expressed her beliefs, and not the fact that she held them, that had been the reason for non-renewal. The tribunal held, following earlier case law, that the way in which a belief is manifested is only dissociable from the belief itself where it is done in a manner which is inappropriate or to which objection can reasonably be taken, bearing in mind an individual’s qualified right to manifest their belief under Article 9 of the European Convention on Human Rights. In this case, the claimant’s tweets and other communications were little more than an assertion of the core protected belief (which could not be objected to even though it was capable of causing offence). In some cases the claimant had been provocative or mocking but this was the “common currency of debate” and was not objectively offensive or unreasonable.
The claimant had also been victimised when her profile was taken off the respondent’s website after she talked to The Sunday Times about her discrimination case. However, her claims of indirect discrimination and harassment were dismissed.
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