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Need to Know: August 2022


In this latest edition of our ‘Need To Know’ employment and HR newsletter, we look at the Employment Appeal Tribunal case of Pubbi v about whether an employee can be fairly dismissed for failing to disclose their bankruptcy, the case of Cowie and ors v Scottish Fire and Rescue Service which looks at the application of blanket policies in the workplace and if they can give rise to the risk of unintended indirect discrimination under the Equality Act 2010, and an article detailing The Advisory, Conciliation and Arbitration Service (Acas) updated guidance for employers on answering questions about a discrimination complaint.

We also have included our usual HR Bullets – which cover other significant employment law updates from the past month.

In addition, our Private Client team are carrying out a survey on estate planning. We would be grateful if you could take 5 minutes to complete it and if you wish you could be entered into a draw to win a Fortnum and Mason hamper.

HR Bullets

Bailey v Stonewall Equality Ltd

London Central employment tribunal held that a claimant, who believes that a woman is defined by her sex and that sex is immutable, was unlawfully discriminated against for ‘gender-critical’ beliefs, which are protected under the Equality Act 2010. It was also noted that a tribunal may have to consider whether it was the objectionable manifestation not the belief itself that was the reason for the treatment. In this case, the tribunal dismissed the claims of victimisation and indirect discrimination and did not accept that income was lost as a result of the detriment.

HMRC v Keith Murphy

The Court of Appeal found that an amount paid by an employer to settle an employment law claim was taxable. The fact that some of that money was used to pay the claimants’ legal costs, namely a ‘success fee’ under a damages-based agreement (DBA) and an insurance premium, or that it was paid by the employer on the claimants’ behalf to a third party, did not change the character of the payment as earnings.

Simmonds-Plummer v London Borough of Hammersmith & Fulham

The claimant had been suspended on full pay pending a disciplinary hearing which was scheduled to start at 10:00 am on 4 March but sent a resignation letter at 09:21 that morning. Her employer decided to continue a disciplinary process, finding that she was guilty of gross misconduct and purporting to dismiss her. The claimant complained that this was damaging for her future employment. In the ET, her claims for discrimination were struck out as out of time.

The appeal against the striking out of her Equality Act 2010 claims at the ET succeeded. The ET had failed to appreciate that her claims of harassment (race and sex) and victimisation in respect of these actions were for post-termination discrimination and had struck out the claim on a misconceived basis.

E.ON UK plc v Revenue and Customs Commissioners

The Upper Tribunal decided that payments made to employees in respect of alterations to their rights under a defined benefit pension scheme were not ‘from’ the employment, within the meaning of section 9(2) of the Income Tax (Earnings and Pensions) Act 2003 and section 3(1)(a) of the Social Security Contributions and Benefits Act 1992.

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