This month we focus on a couple of cases we have seen before, one has now gone to Appeal and the other has come back from Appeal to be judged in the tribunal and is part of a wider set of equal pay claims affecting large retail stores. Our last case considers a flawed disciplinary process resulting in unfair dismissal.
- Direct Discrimination: Christian employee’s dismissal for gender critical Facebook posts was direct discrimination
- Equal Pay: Asda retail workers carried out work of equal value to distribution centre workers
- Unfair Dismissal: Tribunal erred by adopting substitution mindset in conduct case
Direct Discrimination: Christian employee’s dismissal for gender critical Facebook posts was direct discrimination
In Higgs v Farmor’s School [2025] EWCA Civ 109, the Court of Appeal (Underhill, Bean and Falk LJJ) has upheld a Christian employee’s appeal against the EAT’s decision to remit her direct discrimination claim to the employment tribunal. The employee was dismissed by a school because of Facebook posts which it considered could have led readers to believe she held homophobic and transphobic beliefs.
The court substituted a finding that the employee’s dismissal was direct discrimination on the ground of religion or belief. It held that where a dismissal is motivated by the objectionable way in which a belief is expressed, an employer can only lawfully dismiss where it can show that dismissal was an objectively proportionate response. Although the school was entitled to object to the posts because of the offensive language towards gay and trans people, and the context of sex education in schools was relevant to the employee’s work, its decision to dismiss was “unquestionably a disproportionate response”. It was based on concerns about potential future reputational damage. However, even where the risk of reputational damage is shown, an employer’s interference with an employee’s right to express their beliefs must still be proportionate. The proportionality of its interference will depend on whether the views are expressed on matters central to its business, the way in which the beliefs are expressed and whether the views could be imputed to the employer.
There is no objective justification test for direct discrimination under section 13 of the Equality Act 2010 (EqA 2010). However, as established in Wasteney v East London NHS Foundation Trust [2016] ICR 643, section 3 of the Human Rights Act 1998 (HRA 1998) requires the incorporation of the objective justification test in Article 9(2) of the European Convention on Human Rights (ECHR) (freedom of thought, conscience and religion) to the extent necessary to achieve compatibility with those rights. This reasoning was followed by the Court of Appeal in Page v NHS Trust Development Authority [2021] EWCA Civ 255 and was consistent with ordinary principles of domestic construction. The legislature could not have intended that an employee could manifest a belief in any matter they chose, and the ECHR qualified the right to manifest a belief in Article 9(2). Direct discrimination in manifestation cases is uniquely different from discrimination on the grounds of other protected characteristics. It is a special category requiring a more flexible approach.
Equal Pay: Asda retail workers carried out work of equal value to distribution centre workers
In Brierley and others v Asda Stores Ltd ET/2406372/08, an employment tribunal has held that the majority of lead claimants working in retail roles at Asda supermarkets carried out work of equal value to their employer’s distribution centre workers, for the purposes of section 65 of the Equality Act 2010. At a final equal value hearing, the tribunal compared the jobs of 14 women lead claimants in retail roles with 17 workers in distribution centre roles. It found that 11 of the lead claimants, including checkout operators and shop floor assistants, carried out roles of equal value to at least some of the distribution centre roles and that one claimant, who was a section leader, was in a role equal to all of them. However, the tribunal held that the roles of two of the lead claimants, a personal shopper and a shop-floor assistant for edible groceries, were not work of equal value to any of the distribution centre roles.
The long-running claims commenced in 2014 and cover the period from August 2008 and June 2014. In March 2021, the Supreme Court upheld the decisions of the tribunal, the EAT and the Court of Appeal that the retail roles could be compared with the distribution centre roles for equal pay purposes. Similar equal pay claims have been brought against Morrisons, Tesco, Sainsbury’s, Co-op and Next.
It is understood that an appeal is being considered in respect of the tribunal’s findings on the personal shopper and edible groceries roles, as the decision could adversely affect around 11,000 of the 60,000 claimants. Subject to any appeal, the next stage will be for the tribunal to determine whether the reason for the difference in pay between the retail and distribution workers was based on sex. It has been reported that the workers could potentially receive backpay of around £1.2 billion, with individual claims amounting to around £20,000.
Unfair Dismissal: Tribunal erred by adopting substitution mindset in conduct case
In Metroline Travel Ltd v Taylor (debarred) [2025] EAT 4, the EAT has held that an employment tribunal’s finding that a bus driver, Mr Taylor, had been unfairly dismissed by his employer (Metroline Travel Ltd), after getting into a fight with another driver, was fundamentally flawed.
The tribunal found that there was no doubt about the physical altercation, which had been with another company’s driver over a depot parking bay, and that when the other driver had boarded Mr Taylor’s bus and tried to pull him off, Mr Taylor’s response had been disproportionate. Mr Taylor had also left his bus cab while on duty, contrary to Metroline’s policies. Despite this conduct, the tribunal found that the dismissal was substantively unfair, based on evidential issues with CCTV footage, flaws with the disciplinary process and the fact that, in another similar incident, a bus driver who had also been involved in a fight with a passenger had been reinstated.
The EAT found that the tribunal had erred by failing to apply the “range of reasonable responses” test at various stages of its inquiry. While the tribunal had reached a view that Metroline had established the reason for dismissal and that it genuinely believed that Mr Taylor’s actions constituted misconduct, it erred in its analysis of reasonableness, based on a substitution of its view for that of the employer, and its analysis of Metroline’s procedure.
In particular, there was no finding on whether it had been outside the range of reasonable responses for Metroline not to question another driver who had witnessed the incident in her rear-view mirror. The tribunal had also failed to consider the disciplinary process as a whole, merely stating its conclusion that the appeal process did not remedy any flaws in the earlier investigation process. Most obviously, the tribunal had fallen into the substitution mindset in its analysis of the other similar case. The tribunal had conducted a detailed analysis comparing the two incidents and expressing its view that the other incident was worse because Mr Taylor had not shown sustained aggression. This was contrary to Metroline’s position, which was that the two situations could be distinguished by Mr Taylor’s lack of remorse. The tribunal had failed to consider whether that view was within the range of reasonable responses.
The case was remitted to a fresh employment tribunal.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
