Need to Know: August 2024

In the latest edition of our ‘Need To Know’ employment and HR newsletter, we look at what discrimination risks are faced by employers when dealing with expression of religion & belief in the workplace and the government’s plans to repeal the Strikes Act.

• Discrimination risks with expression of religion & belief in the workplace – Proportionality is key
• Last Strike: Government confirms that new Strikes Act to be repealed

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

HR Bullets

• The withdrawal of a conditional job offer by a charity with a significant number of LGBTQI+ clients for a Christian mental health support worker with negative views about homosexuality was discriminatory; Ngole v Touchstone Leeds (ET/1805942/2022)

• An employee’s claim of direct discrimination for his gender-critical beliefs when he was dismissed for refusing to remove an email signature using preferred pronouns that were intentionally provocative was dismissed; Orwin v East Riding of Yorkshire Council (ET/6000146/2022)

• An employee had not made qualifying whistleblowing disclosures when he messaged his employer querying the legality of working whilst on furlough; Ritsan v Milan Babic Architects Ltd [2024] EAT 95

• Following Brexit, employers are entitled to move the central management of a European Works Council from the UK to Ireland to exclude its UK business and members; HSBC European Works Council v HSBC Continental Europe [2024] EAT 104

• A bar manager with authority to organise the staff rota was not allowed to carry over holiday under the COVID-19 carry-over provisions in the Working Time Regulations 1998; Knight v Off Broadway Ltd [2024] EAT 109

• Unfair dismissal claims from care workers dismissed for refusing to comply with their employer’s policy requiring their vaccination against COVID-19 during the pandemic were rejected; Masiero and ors v Barchester Healthcare Ltd [2024] EAT 112

• When assessing whether specific arguments had little prospect of success for the purposes of a r39 deposit order under the ET rules, ETs are entitled to consider the outcome of previous litigation between a respondent and different claimants where the same arguments were raised based on identical facts; Addison Lee Ltd v Afshar and ors [2024] EAT 114

• A minicab firm’s imposition of a flat rate ‘circuit fee’ on a part-time driver, which was set at the same level for full-time drivers, did not breach the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 SI 2000/1551; Augustine v Data Cars Ltd [2024] EAT 117

• An ET erred in outright rejecting a claimant’s renewed application on the 2^nd day of a 10-day trial, to postpone the hearing of her claims after her legal representative was no longer able to represent her; Bennett v London Borough of Islington [2024] EAT 118

• The appeal of a widely publicised ET claim by a barrister that an LGBT campaign charity caused or induced her chambers to discriminate against her on the ground of her protected gender-critical beliefs was rejected; Bailey v Stonewall Equality Ltd and ors [2024] EAT 119

• HMRC’s notice of underpayment to an employer who operated a holiday savings scheme for employees, where contributions to the scheme took wages below the national minimum wage, has been restored; Revenue and Customs Commissioners v Lees of Scotland Ltd [2024] EAT 120

• An ET erred in determining the preliminary issue of whether a sheriff who was subsequently also appointed as a temporary judge of the Court of Session was a part time worker under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000; Scottish Ministers v Johnston [2024] EAT 121

• There is no legal requirement to make a reduction to a compensatory award following a finding of contributory fault; Notaro Homes Ltd v Keirle and others [2024] EAT 122

• An ET erred in finding that, in circumstances where care home residents (either funded privately or by the local authority) were moved to two new care homes operated by a separate company, there was a business transfer for only the privately funded residents and a service provision change for the socially funded residents; Mansfield Care Ltd v Newman and ors [2024] EAT 128

• An interim injunction has been upheld against a former employee who sent threatening emails and WhatsApp messages to the business’s founder demanding financial compensation for his dismissal; RBT v YLA [2024] EWHC 1855 (KB)

• A teacher’s articles 9 and 10 rights under the ECHR are lawfully qualified by their professional obligations, and a Teaching Regulation Agency professional conduct panel’s decision that it was unacceptable for a teacher to deliberately use female pronouns to refer to a transgender male pupil and teach that homosexuality was a sin was unlawful; Sutcliffe v Secretary of State for Education [2024] EWHC 1878 (Admin)

• An interim injunction application made by a company against an ex-employee seeking to restrain them from breaching certain restrictive covenants in an investment agreement has been dismissed on the grounds that the covenants relied upon were void and unenforceable; Literacy Capital Plc v Webb [2024] EWHC 2026 (KB)

• Three appeals have been allowed against the EAT’s refusal to extend time in those cases where the notices of appeal were submitted in time but with required documents or parts of documents missing; Ridley v HB Kirtley t/a Queen’s Court Business Centre and ors [2024] EWCA Civ 884