Frontline UK Employment Law Update Edition 22 2023 - Case Updates

1. Mr A Greasley-Adams v Royal Mail Group Ltd 2023 EAT 86

2. Connor v Chief Constable of the South Yorkshire Police [2023] EAT 42

3. Mrs Kristie Higgs v (1) Farmor's School (2) The Archbishops' Council of the Church of England [2023] EAT 45

Mr A Greasley-Adams v Royal Mail Group Ltd 2023 EAT 86

The Employment Appeal Tribunal (“EAT”) has confirmed in a disability discrimination case that harassment under the Equality Act 2010 (“EA 2010”) occurs when the victim becomes aware of the unwanted conduct, rather than at the time of the conduct itself.

The parties in this case accepted that the Claimant qualified as disabled under section 6 of the EA 2010 due to their Asperger’s Syndrome, an Autistic Spectrum Disorder. Colleagues of the Claimant made allegations of harassment and bullying against him, which led to an investigation by the Respondent. The Respondent found the complaints against the Claimant to be well-founded. Notably, during the investigation, the Claimant became aware of certain comments that had previously been made about him by colleagues, including disparaging comments about his disability. The Claimant lodged a grievance, and subsequently issued proceedings in the Employment Tribunal (“ET”).

In the ET the Claimant argued that the disparaging comments amounted to unwanted conduct related to his protected characteristic of disability which had the effect of violating his dignity, and were therefore unlawful harassment under the EA 2010, even though he had not been aware of the comments at the time they were made.

Under the EA 2010, when determining if unwanted conduct has the proscribed effect, it is necessary to consider both the subjective perception of the victim, and the objective question of whether it was reasonable for the conduct to have had that effect, alongside all of the other circumstances of the case.

The ET and EAT held that in this case that there was no “perception of the victim” as the Claimant was not aware of the disparaging comments at the time, therefore they had no effect on him (harassing or otherwise). Furthermore, when he later became aware of the comments in the context of the Respondent’s investigation into his alleged bullying, it was not reasonable for the comments have the effect of violating his dignity. The ET commented that they did not believe the employer should be constrained in carrying out an investigation because matters emerging from that investigation are then alleged by the subject to be “unwanted conduct”, and that interviewees should not be constrained from answering questions put to them in the course of the investigation as long as they do so truthfully in accordance with their own view of the matters under investigation. The EAT did not find any error in the ET’s conclusion.

This decision highlights that harassment under the EA 2010 only occurs when the victim becomes aware of it, and that the circumstances in which the victim becomes aware of unwanted conduct are key to the assessment of whether or not it is reasonable for it to have a harassing effect. The decision may provide a degree of reassurance to employers tasked with conducting workplace investigations, in which unpalatable conduct or comments may well be uncovered and ultimately disclosed to the subject of the conduct or comments.

Connor v Chief Constable of the South Yorkshire Police [2023] EAT 42

In this case, the Employment Appeal Tribunal (“EAT”) addressed the question of whether, for the purposes of regulation 14 of the Working Time Regulations 1998 (“WTR"), a payment in lieu of accrued untaken holiday on termination of employment calculated in accordance with a “relevant agreement” may be less than the sum which would otherwise be payable under regulation 14.

On termination of his employment, the Claimant was entitled, pursuant to regulations 13, 13A and 14 of the WTR, to be paid holiday accrued but not taken. Regulation 14 of the WTR provides that in the absence of a “relevant agreement” determining some other calculation method, the formula to be applied is (A x B) – C, where

• A is the worker’s full annual leave entitlement under the WTR;
• B is the proportion of the leave year which has elapsed by the termination date; and
• C is the period of leave taken by the worker between the start of the leave year and the termination date.

However, the Claimant’s contract of employment included a term which stated that, on termination, any payment in respect of accrued but untaken holiday would be equal to 1/365 of the annual salary for each day's leave. During the Claimant’s employment, he received a working week’s pay for a week of holiday. Upon termination, the calculation of the pay due for his accrued outstanding holiday was made on the basis of the above term which resulted in the Claimant being paid less than he would have been paid if he had taken the equivalent period as holiday during his employment.

The Claimant subsequently brought a claim for unlawful deduction from wages in the Employment Tribunal (“ET”) to recover the shortfall. The Respondent argued that it was entitled to pay the Claimant at the contractually specified rate, citing regulation 14 of the WTR which states that a payment in lieu of untaken holiday shall be ”such sum as may be provided for the purposes of this regulation in a relevant agreement”, with the formula specified in the WTR only applying if there is no such “relevant agreement”. As the Claimant’s contract of employment was a “relevant agreement” it allowed the parties to apply a different method of calculation on termination. The ET agreed with this analysis and held that the calculation reached by the Respondent was correct.

The Claimant subsequently appealed to the EAT, which allowed the appeal. The EAT held that as a general rule, any “relevant agreement” cannot permit an employer to pay less than is provided for under the default calculation in regulation 14 of the WTR, as this is not in keeping with the minimum rights granted by the WTR.

This decision clears up some previous uncertainty over whether a payment in lieu of accrued untaken annual leave on termination of employment can be lower than the amount given by the default formula in the WTR if the employment contract provides for an alternative calculation giving a lower amount. Where contracts of employment do provide for an alternative formula, employers should ensure that using that formula does not result in them paying less than their employees would be entitled to receive pursuant to the WTR formula.

Mrs Kristie Higgs v (1) Farmor's School (2) The Archbishops' Council of the Church of England [2023] EAT 45

In this case, the Employment Appeal Tribunal (“EAT”) held that a teacher's lack of belief in gender fluidity was protected under the Equality Act 2010 (“EA 2010”) and her actions in posting related content on Facebook constituted a manifestation of her beliefs under Article 9 of the European Convention on Human Rights (“ECHR”).

The Claimant was employed by the Respondent as a pastoral assistant and was dismissed for gross misconduct due to her conduct on Facebook, where she had reposted content expressing criticism of the teaching of sex education in schools, particularly regarding same sex marriage and “gender fluidity”. The Respondent alleged that her posts on Facebook were discriminatory and had the potential to harm its reputation.

The Claimant brought claims of direct discrimination and harassment on the ground of religion or belief, arguing that her lack of belief in gender fluidity and that a person can change their biological sex were capable of amounting to protected beliefs under the EA 2010 and that she was dismissed for manifesting those beliefs. The Employment Tribunal (“ET”) dismissed the claims on the basis that, while her beliefs were protected under the EA 2010, she had not been dismissed because of these beliefs but because of the Respondent’s concern she would reasonably be perceived as holding homophobic and transphobic views as a result of the Facebook posts, which used “florid and provocative” language.

The Claimant appealed the decision to the EAT, who upheld her appeal and remitted the case to the ET. The EAT took the view that there was a close or direct nexus between the Claimant’s Facebook posts and her protected beliefs. This meant that the ET should have considered whether the posts constituted manifestations of her beliefs under Article 9 of the ECHR and whether the Respondent’s actions in dismissing her were because of the manifestation of that belief per se (and therefore discriminatory) or because the way in which she had manifested her belief was justifiably objectionable (and therefore not discriminatory).

In assessing this question, the ET should have carried out a proportionality assessment, balancing the Claimant’s ECHR right to manifest her beliefs against the qualifications of that right set out in the ECHR (namely whether interference with that right (i) is justified, (ii) has a legal basis, (iii) is necessary in a democratic society and (iv) is in the interests of specific legitimate objectives which include protection of the rights and freedoms of others). The ET’s decision did not demonstrate that it had carried out this proportionality assessment. The EAT set out some general principles for Employment Tribunals to take into account when dealing with this difficult balancing exercise:

1. The “foundational nature” of a person’s ECHR rights to freedom of expression and manifestation of beliefs must be recognised. These are essential rights in a democracy, whether or not the belief is popular or mainstream and even if its expression may offend.
2. The rights are, however, qualified. The law permits action to limit or restrict these rights where necessary to protect the rights and freedoms of others. Where that action is objectively justified, taking into account the manner of expression or manifestation, then it is not action taken because of the belief or its expression or manifestation per se but is because of the objectionable manner of the expression or manifestation.
3. Whether action is objectively justified will be context-specific.
4. It is always necessary to ask whether (i) the employer’s objective is sufficiently important to justify limitation of the right in question; (ii) the limitation is rationally connected to the objective; (iii) a less intrusive limitation might be imposed without undermining the achievement of the objective in question; and (iv) whether the severity of the limitation on the rights of the worker outweighs the importance of the objective.
5. Regard should be had to (i) the content of the manifestation; (ii) the tone used; (iii) the extent of the manifestation; (iv) the worker’s understanding of the likely audience; (v) the extent and nature of the intrusion on the rights of others and any consequential impact on the employer’s ability to run its business; (vi) whether or not the worker has made clear that the views expressed are personal or whether they might be seen as representing the views of the employer and whether that might present a reputational risk; (vii) whether there is a potential power imbalance given the nature of the worker’s role and that of those whose rights are intruded upon; (viii) the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; and (ix) whether the limitation imposed is the least intrusive measure open to the employer.

This case highlights the complex nature of the balancing exercise that needs to be carried out by employers when deciding how to handle situations in which an employee has expressed views or opinions that are or may be offensive to others. Where those views or opinions are the expression of a religious or philosophical belief capable of protection under the EA 2010, adverse action against the employee may amount to unlawful harassment or discrimination unless it can be objectively justified. The EAT’s decision in this case provides helpful guidance on the factors that are likely to be relevant when determining whether the action is justified.