Important case judgements employers should consider before making a decision

Six key employment case decisions, first posted by Personnel Today.

(1)  Tribunal Fees

R (On the application of Unison) v Lord Chancellor (Supreme Court)

On the 26^th July, Unison won a landmark ruling that has been seen to support the principle of access to justice.

The seven judges in this case made the universal decision that the current system of the Employment Tribunal was unlawful and restricted individuals from access to justice. Thus, legislation is set to be introduced to abolish such fees.

The decision made in this case has been suggested as “one of the most important judgements in the history of employment law”. Stressing once again, that the Government cannot use their authority to control citizens access to justice.

The UK Government have now been ordered to reimburse around 32m to claimants that were charged a fee, dating back to 2013.

(2)  Long-term absence and disability issues

O’Brien v Bolton St Catherine’s Academy (CA)

In this case, Ms O’Brien had her contract of employment terminated following a period of long-term absence from work.

The decision made by the Court of Appeal in this case backs the “growing trend” of the number of claims heard on discrimination that has come as a direct result of a disability.

At the initial appeal hearing, the claimant handed her employer medical evidence in support of her absence – this evidence determined that she was unfit to return to work.

Despite this, the appeal panel were not convinced and as a result of this, the dismissal was upheld.

This case in the courts opinion, was submitted as “near borderline”, however, it was established that it was unreasonable of the employer who overlooked new evidence and failed to implement an additional medical assessment.

(3)  Shared Parental Pay

Ali v Capita Customer Management Ltd (employment tribunal)

Shared parental leave was first implemented in 2015. Since then, there has been matters of contention around whether employers should be enhancing shared parental pay if they enhance maternity pay.

In this case, Mr Ali’s wife had been suffering from post-natal depression, her GP recommended that to aid recovery, she should return to work at her earliest convenience.

Because of this, Mr Ali requested shared parental leave from his employer. His workplace policy stated that women on maternity leave should receive full salary for 14 weeks and any time after that would be paid at a statutory rate.

The claimant logged a complaint to the Employment Tribunal on the grounds that by his employer refusing to enhance his pay, resulted in sex discrimination.

In this instance, the Employment Tribunal upheld Mr Ali’s claim because the role of a child’s primary carer should be left to that child’s parents to decide. This arrangement should be made free of “generalised assumptions” that the mother will always be best placed to undertake that role and receive full pay.

It is important that employers note, this case is an original decision and consequently not binding, it has been recommended that employers look out for the appeal court decision before certainty will be confirmed.

(4)  Religious wear in the workplace

Bougnaoui and another v Micropole Univers & Achbita and another v G4S Secure Solutions NV

In 2017, the European Court of Justice provided judgements on the grounds of religious dress in the workplace.

In the Belgian case of Achbita and Another v G4S, the Advocate General gave an opinion on when employers can restrict employees from wearing religious dress, such as, Muslim headscarves.

The Advocate General in this case submitted that the employer can ban the Muslim headscarf, if the reason behind this is to maintain religious and political neutrality in the workplace.

Nonetheless, the Advocate General in the French case of Bougnaoui, was seen to oppose this. Suggesting, that an employer could not ban religious dress on the grounds of neutrality or on the grounds that a client or customer objects.

In Achbita, it was held that as long as the ban on religious dress is universal and applied consistently throughout the workplace, a blanket ban would not be deemed as a matter of direct discrimination. However, it could result in indirect discrimination is the employer fails to justify his reasoning behind the ban.

In Bougnaoui, it was held that asking an employee to remove religious wear on the grounds that a customer or client objects, cannot be justified and a defence will only be deemed appropriate in specific circumstances.

(5)  Recruitment and Disability Discrimination

Government Legal Service b Brookes (EAT)

In this instance, as part of the job application, the employer asked that all applicants carried out an online multiple choice psychometric test.

The claimant in this case suffered from Asperger’s Syndrome and asked the employer if she could carry out the test through answers in a short narrative form due to her disability.

The employer refused this request and she was told that going forward, an alternative would not be made available.

The claimant brought a claim in front of the Employment Tribunal on the grounds of disability discrimination.

The EAT upheld the Employment Tribunals decision, and that by the employer requiring applicants to complete the test put the claimant at an automatic disadvantage.

Despite the employer having a legitimate aim when requiring individuals to complete the test, the means behind achieving this test was not proportionate.

(6)  Whistleblowing

Chersterton Global Ltd and Another v Nurmohamed

In 2013, the Government changed the legislation around whistleblowing. The law now provides that a disclosure will not be protected unless the employee has reason to believe the admission made is of public interest.

In this case, the Court of Appeal upheld the preliminary decision of the Employment Appeal Tribunal, that accusations about accounting negligence concerning bonuses and commission, affected 100 senior managers and were therefore in the public interest.

The Court of Appeal suggested that the statutory test that is applied when determining what is “in public interest” does not set absolute rules and the Employment Tribunal ought to take a number of different elements into consideration.

These include: The number of employees involved and the importance of the matter.

How can we help?

Employment Law Services (ELS) LTD will ensure you are well informed of updates as they come in. In the meantime, employers concerned with about any of the issues raised in this article can also take advantage of our Employment Law Services (ELS) free consultation service – call us today to arrange your free consultation – 0800 612 4772.