This month our employment law case updates contain some key issues in employment law: discrimination protections, and the balance between the rights and freedoms of individuals and the effect their words or acts may have on those around them.
- Collective Agreements: Supreme Court restrains Tesco from ‘firing and rehiring’ employees on less favourable terms
- Unfair Dismissal: Dismissal based on capability and performance is fair
- Equality Act: Complaint by LGBT charity about ‘gender critical’ tweets did not induce or cause discrimination
- Equality Act: English Nationalist loses appeal for protection of his views
Collective Agreements: Supreme Court restrains Tesco from ‘firing and rehiring’ employees on less favourable terms
In Tesco Stores Ltd v Union of Shop, Distributive and Allied Workers (USDAW) [2024] UKSC 28, in a unanimous decision in which Lord Burrows and Lady Simler delivered the leading judgment, the Supreme Court agreed with the previous High Court decision and restored the injunction restraining Tesco from terminating employment contracts for the specific purpose of depriving employees of their ‘permanent’ contractual right to retained pay and offering re-engagement without this inclusion. It was held that the employment contracts contained an implied term which prevented Tesco from exercising dismissal rights for this purpose.
The Supreme Court allowed the appellant employees’ (and their union’s) appeal, concerning whether the Court of Appeal, Civil Division, had erred in finding that the respondent company (Tesco) had been entitled to terminate its employees’ employment contracts for the specific purpose of depriving them of ‘retained pay’ (RP) (a financial contractual entitlement which was described as a ‘permanent’ benefit), and to offer re-engagement on terms without RP (the ‘fire and re-hire’ mechanism). The High Court had granted an injunction to restrain Tesco from terminating the employees’ employment to remove the RP term. The Court of Appeal had allowed Tesco’s appeal. The court ruled among other things, that: (i) on the true construction of the express RP term in the relevant employment contracts, the word ‘permanent’ conveyed that the right to RP was not time-limited in any way and would continue to be paid to employees for as long as their employment in the same role continued, subject only to the other two qualifications set out in the RP term; (ii) however, applying the test of business efficacy (or obviousness), Tesco was precluded by an implied term from exercising the contractual right to dismiss the claimants on notice for the purpose of removing or diminishing their right to receive permanent RP; (iii) the exception to the general rule that a contract of employment was not specifically enforceable was engaged, in circumstances where there had been no breakdown of mutual trust and confidence (Tesco was prepared to re-engage the relevant employees), and where damages would be inadequate; and (iv) accordingly, the injunction which the High Court had granted in favour of the employees would be reinstated.
Unfair Dismissal: Dismissal based on capability and performance is fair
In Kikwera-Akaka v Salvation Army Trading Company Ltd [2024] EAT 49, the EAT found the Employment Tribunal did not err in concluding that the Claimant had been fairly dismissed for capability and performance. The Claimant worked for the Respondent in one of its charity shops. Many of the staff who work in those shops are volunteers and some have additional vulnerabilities. An incident occurred between the Claimant and a vulnerable volunteer, as a result of which he received a final written warning. That stated that further misconduct may result in dismissal. In addition, he was placed on a personal improvement plan (PIP). The Tribunal found that this was specifically linked to the incident with the volunteer: one aspect of his performance which the Respondent made clear needed to improve through that PIP was his interaction with volunteers. The Claimant did not consider that there was anything which he needed to address in that regard. The PIP ended a few days earlier than planned. The Claimant was invited to a performance capability meeting to discuss the PIP. He was expressly warned that dismissal may result. The Claimant’s position regarding his interaction with volunteers did not change: he rejected the suggestion that he needed to improve or that he required further training. He was dismissed.
The Claimant’s appeal against dismissal, in which he maintained his previous stance, was unsuccessful. On the facts the Tribunal concluded that the Claimant had been given a fair opportunity to improve his performance: his interaction with volunteers was a significant and important part of his performance, and was also linked to the misconduct which led to the final written warning. The Tribunal did not err in its approach or in its application of relevant legal principles. Observations upon the differences, and similarities, in a fair approach when an employer considers dismissal for capability compared to misconduct.
Equality Act: Complaint by LGBT charity about ‘gender critical’ tweets did not induce or cause discrimination
In Bailey v Stonewall Equality Ltd [2024] EAT 119, the EAT held that an Employment Tribunal did not err in rejecting a claim, by a barrister who holds gender critical beliefs, that Stonewall, an LGBT campaign charity, caused or induced her chambers to discriminate against her on the grounds of her protected belief, contrary to section 111 of Equality Act 2010 (i.e. relating to instructing, causing or inducing another person to contravene the Act). The tribunal’s finding that the charity’s complaint was a ‘protest’, without any specific aim in mind except perhaps a public denial of the chambers’ association with the barrister’s views and contained no element of threat, did not satisfy a finding of inducing or causing an act of discrimination.
Equality Act: English Nationalist loses appeal for protection of his views
In Thomas v Surrey and Borders Partnership NHS Foundation Trust (1) and Brett (2) [2024] EAT 141, the EAT ruled that English nationalism is not a legally protected philosophical belief under the Equality Act 2010 (EqA 2010). The Claimant, Steven Thomas, a health worker, has lost his appeal against an employment tribunal’s decision that his belief in English nationalism, which included anti-Islamic views, was not one which was protected under the EqA 2010. This original decision was reached at a preliminary hearing in the claim he brought against a National Health Service (NHS) trust after it ended his employment after three months.
Judge Clive Sheldon KC wrote in the judgment of the EAT: ‘The Claimant’s views are of an English nationalism which believes that there is no place in British society for Muslims or Islam itself… The Claimant is not prevented from holding his views. But he is outside of the right to complain that he has been discriminated against in relation to those beliefs.’
‘English Nationalism can be a legally protected philosophical belief, but the Claimant’s specific views, which included that Muslims should be forcibly deported from the UK, did not merit protection under free expression rights enshrined in the European Convention of Human Rights,’ he added.
This was because his expressed beliefs violated another right in the doctrine—that no one can perform acts ‘aimed at the destruction of any of the rights and freedoms’ of others, and, added the judge, he cannot also claim protection from discrimination under the EqA 2010 because his views are not worthy of respect in a democratic society.
Thomas’ solicitor, Robin Tilbrook of Tilbrook Solicitors, said that his client will take his case to the Court of Appeal, or to the European Court of Human Rights if necessary. Tilbrook said he believed the judgment misinterpreted the European Convention article that limits Thomas’ free speech rights as binding on the employer, rather than on the state. He likened Thomas’ case to Redfearn v United Kingdom [2013] IRLR 51, where another English Nationalist won his European human rights case despite losing his employment claim in the UK.
His past political affiliation to the English Democrats, a minor far-right party, meant that Thomas was sanctioned because his beliefs were ‘unacceptable to the woke view of the world’, Tilbrook added. Tilbrook is the current national chair of the English Democrats.
‘In this case, there are comments about Islam that have taken my client’s views out of that protection’, Tilbrook said. ‘They have put my client in a position where he’s always in danger of being fired by an employer.’
The case is part of a surge in claims about protected beliefs that lawyers say are incrementally blurring the lines between unconventional but legally valid views and politicised public debates.
The trust argued in June that Thomas’ views were ‘akin to Nazism‘, which British courts have ruled is not protected. They also defended the employment tribunal claim on the basis that he was actually dismissed because he lied in his résumé about an unspent conviction.
Thomas had either posted himself, or reposted, on social media platform X, comments such as ‘Ethnic cleansing…always happens to Muslims…wonder why?‘ and used the hashtag ‘#RemoveAllMuslims’, according to the judgment of the employment tribunal.
Oscar Davies of Garden Court Chambers, counsel for Thomas, argued in written submissions in the appeal case that the views of the claimant ‘might well be considered offensive and abhorrent to some’—but did not seek to destroy the rights of anyone.
As such, they did not violate the European Convention on Human Rights, Davies added.
But Sheldon J upheld the employment tribunal’s reasoning for dismissing the case.
‘A finding that the claimant’s beliefs included the banning of Islam or the forcible removal of Muslims from the United Kingdom is only consistent with an infringement—and in fact the destruction—of rights of others’, he ruled.
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