In this issue, we delve into recent legal cases that shed light on critical aspects of employment law looking at the treatment of a gender-critical professor over their research, the intricacies of whistleblowing as it may or may not affect job applicants, an examination of the Transfer of Undertakings (Protection of Employment) regulations (TUPE), and the delicate balance between anonymity and justice in relation to fabricated sexual assault allegations.
- Discrimination & Harassment: Gender-critical professor was discriminated against for research
- Whistleblowing: Job applicants are not entitled to bring claims when they have suffered detriment because of making a protected disclosure
- TUPE: Liability for harassment claim does not transfer if both employees do not transfer
- Anonymity: Claimant who made up sexual assault was not entitled to privacy orders
Discrimination & Harassment: Gender-critical professor was discriminated against for research
In Phoenix v The Open University (3322700/2021 & 3323841/2021), a gender-critical professor has persuaded an employment tribunal that her employer university harassed and discriminated against her based on her views before unfairly pushing her to resign.
At the tribunal, the Employment Judge Young ruled that Open University professors led a ‘call to discriminate’ against Professor Jo Phoenix by releasing an open letter protesting against her gender-critical research network. The discriminatory letter led to a ‘pile-on’ against Phoenix, Judge Young said. The judge said that the university failed to provide a suitable working environment for Phoenix by leaving her exposed to the backlash, which amounted to a breach of the implied term of trust and confidence in her contract and ultimately led her to resign. She found that The Open University did not protect Phoenix from the ‘negative campaign’ against her after she launched her research network because it ‘did not want to be seen to give any kind of support to academics with gender critical beliefs’, the judge said.
The university employed Phoenix as a professor from 2016 until she resigned in December 2021 following what she described as an ‘exceptionally painful’ part of her career amid widespread opposition to her views. Equality laws protect Phoenix’s belief (a position often referred to as gender-critical) which holds a person cannot change their biological sex and that sex cannot be conflated with gender identity, according to the 155-page ruling.
Phoenix ran a research network at the university that examined sex, gender and sexuality from a gender-critical perspective, according to the ruling. But the network met significant opposition from her colleagues, the judgment says. Criminology professor Louise Westmarland harassed Phoenix by comparing her views to those of ‘a racist uncle at the Christmas table’, the judge said. ‘Westmarland knew that likening [Phoenix] to a racist was upsetting’, Judge Young said. ‘We conclude that its purpose was to violate [Phoenix’s] dignity because, inherent in the comment, is an insult of being put in the same category as racists.’
Her colleagues also discriminated against her when they ‘gave her the silent treatment’ during a departmental meeting in response to Phoenix securing a grant of CAN$1m grant for research into transgender prisoners. Criminology lecturer Deborah Drake also discriminated against Phoenix by instructing her not to speak to the rest of the department about her research, about Essex University’s decision to cancel her talk on trans rights and imprisonment and about accusations of being a ‘transphobe’ that she was facing, Judge Young said. ‘Others were allowed to speak about their research in subsequent meetings…and research updates were part of the agenda for departmental meetings’, the judge said.
A series of tweets and retweets by Open University staff referring to Phoenix as transphobic also insulted her and discriminated against her, according to the judgment. The university also continued to harass Phoenix after her resignation by publishing further statements on its website condemning her research, Judge Young said.
‘I am delighted that the tribunal found in my favour’, Phoenix said in a statement. ‘Academics and universities must now, surely, recognise their responsibilities toward promoting diversity of viewpoints and tolerance of alternative views.’ Leigh Day partner Annie Powell, who represented Phoenix, added that she hopes to see ‘no further cases of academics being treated so badly because of their protected beliefs’.
Professor Tim Blackman, vice-chancellor of the Open University, said, ‘Our priority has been to protect freedom of speech while respecting legal rights and protections. We are disappointed by the judgment and will need time to consider it in detail, including our right to appeal.’
The Employment Appeal Tribunal overturned in 2021 a ruling by a lower tribunal that gender-critical views are not a protected belief. It held that the opinions held by a woman who lost her job after she published comments about transgender people online were legally protected. Ms Forstater was subsequently awarded over £106,000 by the employment tribunal. The employment tribunal ruled in a different case in May 2023 that the Open University did not discriminate against a member of staff that it sacked for sending a racist tweet to Star Wars actor John Boyega.
Whistleblowing: Job applicants are not entitled to bring claims when they have suffered detriment because of making a protected disclosure
The EAT in Sullivan v Isle of Wight Council [2024] EAT 3 confirmed the position that whistleblowing detriment claims are confined to workers (as defined) and do not extend to job applicants, except in the case of applicants for jobs with certain specified NHS employers under the Employment Rights Act 1996 (NHS Recruitment—Protected Disclosure) Regulations 2018. It confirms that using a Gilham style argument, applying the right to freedom from discrimination under Article 14, read with the right to freedom of expression under Article 10, of the European Convention on Human Rights, to extend the reach of such claims to job applicants, will not succeed, in particular because being a job applicant is not some ‘other status’ for the purpose of Article 14.
All workers have the right to bring a claim in relation to any detriment suffered because of any act or omission by their employer, done on the ground that the complainant made a protected disclosure. ‘Worker’ in this context has an extended definition. The protection applies to workers (as defined). Job applicants are generally not covered. However, certain NHS employers are prohibited from discriminating against job applicants because it appears that they have made a protected disclosure.
In Gilham, a whistleblowing detriment claim under Employment Rights Act 1996 (‘the Act’), the Supreme Court held that the claimant, a district judge, was not a worker for the purposes of the Act (because she had no contract) but held that judicial-office-holders were nonetheless entitled to bring claims for whistleblowing protection under the Act because the exclusion of judges was in breach of their right to freedom from discrimination under Article 14, read with the right to freedom of expression under Article 10, of the European Convention on Human Rights (ECHR). The Supreme Court concluded that the Act should therefore be read and given effect so as to extend their whistleblowing protection to the holders of judicial office.
The claimant in this case had two unsuccessful applications for financial officer roles with the respondent. She then lodged complaints alleging that multiple inappropriate/discriminatory comments had been made during her interviews including that she had been called ‘mentally insane’. Her complaints were rejected and she was refused an appeal. Later she lodged claims for discrimination, victimisation and whistleblowing detriment. The detriment claim related to the refusal to allow her an appeal which she said was because of an allegation of financial mismanagement that she had made against one of the interviewers in relation to a charity with which he was involved. She alleged that even though the whistleblowing provisions only applied to workers (which she was not) they should be extended to job applicants, such as her, using Articles 10 and 14 of the ECHR.
The employment tribunal dismissed the whistleblowing detriment claim and the claimant appealed. The EAT upheld part of the tribunal’s decisions but also dismissed the appeal on the basis that:
- Whilst the facts fell within the ambit of the right to freedom of expression protected by Article 10 ECHR, it was only applicable subject to the following conditions.
- An external job applicant is not in a situation analogous to that of the internal applicant, who is already embedded in the workplace and whose disclosure is made in that context. It was also accepted that this particular claimant’s situation was not analogous to that of an internal applicant. Her application process had come to an end some months previously. Her subsequent disclosure had related to matters unconnected with the application made, or, indeed, with the respondent itself, and had been advanced under a complaints policy of which any member of the public was able to avail themself in relation to any perceived wrongdoing by the respondent. The NHS Regulations were not applicable here.
- The claimant had relied on the status of an external job applicant as the ‘other status’ for the purposes of Article 14 ECHR. However, that was found not to be of the same quality as the occupational classification (judicial officeholder) as in the precedent case. The claimant did not possess or acquire a status, or occupational classification, independent of her act of applying for a job.
- Whilst the EAT found the employment tribunal’s approach to the question of proportionality was problematic, in the absence of any evidence going to that matter and the structured approach to answering that question required by the precedent case, it was not relevant here due to the above three issues. Had the answers to the those questions been otherwise, the matter would have been remitted for fresh consideration of that particular question.
TUPE: Liability for harassment claim does not transfer if both employees do not transfer
In Sean Pong Tyres Ltd v Moore [2024] EAT 1 the EAT found that the transferor employer’s primary liability to its employee for the harassment did not transfer to the transferee employer under TUPE where the employee’s employment did not transfer to the new employer for reasons that were not connected with it (e.g. as in this case where the employee’s employment came to an end before the transfer for unrelated reasons).
In this case, the claimant resigned in April 2021 and claimed unfair constructive dismissal and harassment based on the actions of a fellow employee, Mr Owusu. In July 2021, after the claimant had left, there was a TUPE transfer of the respondent business, including Mr Owusu, to Credential. Neither Mr Owusu nor Credential were made respondents to the claim. The claim was only brought against the respondent by whom the claimant had been employed. When the hearing began the respondent’s representative applied to amend the response to argue that the respondent was not liable for the harassment, on the basis that liability for that had transferred to Credential under TUPE 2006.
The employment tribunal dismissed the respondent’s amendment application on the basis that the effect of TUPE 2006 was not to transfer liability for harassment to Credential in respect of the claimant who they had never employed and that, following the Selkent principles, on the facts, the balance of prejudice was in favour of the claimant.
The employment tribunal then upheld the claims of unfair constructive dismissal and harassment. The respondent appealed to the EAT who dismissed the appeal, finding that the transferor employer’s primary liability to its employee for the harassment does not transfer to the transferee employer if the employee’s employment does not transfer for reasons that were not connected with it (e.g. as in this case where the employee’s employment came to an end before the transfer for unrelated reasons).
This should come as a relief to transferees who might otherwise have found themselves liable for Equality Act 2010 claims by individuals who they had never employed (although it is likely that such liability could have been dealt with by suitable warranties/indemnities in a transfer agreement).
Anonymity: Claimant who made up sexual assault was not entitled to privacy orders
In Z v Commerzbank and others [2024] EAT 11, a claimant who was found by an employment tribunal to have made up a sexual assault allegation, and who had made no such allegation to the police (or other appropriate person), was not entitled to continued protection under anonymity and restricted reporting orders that an employment judge had made. For a claimant to have the protection of section 1(1) of the Sexual Offences (Amendment) Act 1992 (SO(A)A 1992) there must be a formal allegation made in the context of potential criminal proceedings, where a criminal charge may be brought (such as a complaint to the police, a prosecuting authority, a safeguarding body, a social worker or social services department or other person with professional responsibility for taking the complaint further through the criminal justice system). In addition, the tribunal’s decision, that the claimant’s account given in his evidence was in large part false and, in particular, that his complaints of sexual harassment and sexual assault were fabricated, was a material change of circumstances entitling the tribunal to revoke the anonymity and restricted reporting orders. Also, the tribunal’s balancing exercise in relation to Convention rights was not flawed, according to the Employment Appeal Tribunal.
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