In the latest edition of our ‘Need To Know’ employment and HR newsletter, we look at when changing the terms of employment in a contract amounts to dismissal, the new guidance on Alternative Dispute Resolution, and an update on the Employment Relations (Flexible Working) Act.
- Changing terms of employment: When does varying a contract amount to a dismissal?
- I’ll see you in court… Not! – New guidance on Alternative Dispute Resolution
- UK Legislation Update – Employment Relations (Flexible Working) Act 2023
We also have included our usual HR Bullets – which cover other significant employment law updates from the past month.
HR Bullets
- In Phipps v Priory Education Services Ltd, the Court of Appeal held that the Tribunal should have granted the Claimant’s application for reconsideration of a strike-out on the grounds that it was necessary in the interests of justice when the Claimant was deceived by her legal representative who had acted ‘improperly, unreasonably and negligently’.
- In Tanase v Barchester Healthcare Limited, the EAT held that the Tribunal’s dismissal of the Claimant’s claim for reasons of non-compliance with a case management order could not stand, as the order in question was not actually an ‘Unless Order’.
- In United Taxis v Comolly and Tidman, the EAT held that the Claimant, Mr Comolly, could not be considered both a worker for the taxi company, United Taxis, as well as an employee of one of the company’s shareholders, Mr Tidman. This is in line with the principle established in case-law that an individual cannot have two employers for the same work done simultaneously with the exception being unless it was clearly the parties intention for this to be the case.
- In Owen v Willow Tower Opco 1 Ltd, a care-home worker who refused a COVID-19 vaccination based partially on her ethical veganism was subsequently dismissed. The Tribunal held that it was unable to find that she had a genuinely held belief in ethical veganism. Her actions were inconsistent with the extent of the belief as described in Casamjitjana Costa v League Against Cruel Spots ET/3331129/18.
- In Higgs v Farmor’s School and another, the Tribunal held that a Christian employee who was dismissed after making Facebook posts that could have led readers to reasonably believe she held homophobic and transphobic views had not been directly discriminated against because of her protected beliefs. The EAT subsequently allowed the Appeal on the basis that the Tribunal had failed to engage with the question of whether the school’s actions were because of/related to the manifestation of her beliefs (a proportionality assessment).
- In Cave v Open University, the Claimant claim for discrimination here failed as the Tribunal held that an employee’s belief in English Nationalism could not be categorised as a philosophical belief that was protected under the Equality Act 2010 as it was not ‘worthy of respect in a democratic society’ and was ‘incompatible with human dignity and in conflict with the fundamental rights of others’.
- In Moustache v Chelsea and Westminster NHS Foundation Trust, the Claimant was a litigant-in-person. The EAT held that the Tribunal had erred as it did not clarify the claims being brought, even though the Claimant had included sufficient information in the claim form and her witness statement to indicate that another claim was actually what was in her mind (albeit not properly articulated).
- In Pipe v Coventry University Higher Education Corp, the Claimant had ADHD and was repeatedly rejected for promotion. The EAT upheld the Tribunal’s finding that this was not due to indirect disability discrimination but additionally found that the Tribunal had not addressed further claims of (different) indirect disability and age discrimination that were made in relation to his final application.
- In Greasley-Adams v Royal Mail Group Ltd, the EAT held that the perception of conduct by the Claimant is a ‘key and […] mandatory component’ of harassment and if a Claimant was not ‘aware of the conduct’, then such conduct cannot be said to have violated his (or her) dignity.