Cases in question

14 November 2024

Nicola Mullineux, senior employment tax specialist for Peninsula, sheds light on three recent employment law cases and examines their outcomes

Pregnant employee awarded more than £350k in discrimination claim

The employment tribunal (ET), in the case of Hinds v Mitie Limited, had to consider whether the treatment ofan employee during pregnancy, maternity leave and upon her return to work constituted discrimination and entitled her to resign and claim constructive unfair dismissal.

The claimant, who was around seven months pregnant at the time, sent an email to two of the respondent’s leadership team, both of whom had line management responsibilities for the claimant at various times. In the email, the claimant explained that she was “really struggling” with certain aspects of the role, had experienced two panic attacks that week and significantly disrupted sleep. She expressed concern that she might become seriously ill with work stress and anxiety because she was struggling mentally and physically with the workload. The claimant concluded her email with a request to establish a handover plan to resolve the situation.

No specific response was provided to the claimant about her email. Instead, an internal email was sent by one of the managers stating the claimant “has become very emotional and tearful, especially over the last week or so. I am very frustrated with this as she is certainly not overworked, and we have been very supportive in helping her manage her workload”.

The claimant went on sick leave two working days later and brought forward the start of her maternity leave.

During her maternity leave, the claimant asked for keeping in touch days. However, there was again a lack of a response directly to the claimant. The manager just sent an email to the respondent’s payroll team saying it was approved. The claimant’s return from maternity leave was also not handled well and certain communication was again lacking.

Around a month after her return from maternity leave, the claimant was certified as unfit for work with postnatal depression and ultimately resigned around six weeks later.

The claimant brought claims for constructive unfair dismissal and pregnancy discrimination.

Following receipt of the claimant’s email, the ET held that the respondent should have considered altering the claimant’s working conditions, hours of work, redeployed the claimant to a suitable alternative role, or failing that, suspend her on full pay. It found that there was an “obvious and pressing need” for the respondent had to complete a risk assessment. However, the respondent failed to do any of this.

The ET held that the internal email sent by the respondent’s manager was stereotyping the claimant as an “emotional, hormonal pregnant woman” and that the description of the claimant was dismissive and belittling. The inference was that the claimant wasn’t fully in control of her emotions because of the pregnancy.

The ET found that the lack of an adequate response to the claimant’s email and the failure to ensure that a risk assessment was undertaken was because of the claimant’s pregnancy. The claimant’s discrimination claim on this issue therefore succeeded.

The respondent’s failure to undertake a risk assessment during the claimant’s pregnancy, ahead of or on her return to work following maternity leave, as well as the manager’s lack of effective response to the claimant’s email, also meant that trust and confidence was ultimately destroyed. The ET found, therefore, that the claimant was constructively unfairly dismissed and awarded her more than £350,000 in compensation.

Supreme Court (SC) reinstates injunction preventing removal of “retained pay”

The case of USDAW v Tesco Stores Ltd could potentially have significant implications for employers looking to undertake a process of ‘fire and rehire’, or dismissal and re-engagement. While this case comes from outside of the employment tribunal system – it was dealt with by the High Court, Court of Appeal and SC because of the nature of the relief sought – it’s still highly relevant to employers considering changing agreed terms and conditions.

Some time ago, Tesco underwent a restructure. Rather than lose experienced staff to redundancy, several employees were offered the chance to move to a new site with ‘retained pay’, whereby the difference between the value of their current contractual pay and the proposed contractual pay at the new site would be protected.

At the time, various documents provided to staff by Tesco referred to the retained pay as “guaranteed for life” and “permanent” and a collective agreement which set out the circumstances in which the pay would be lost. None of these referred to a business decision by Tesco to remove the clause as a reason for the loss of the retained pay.

Despite these reassurances, Tesco later announced it would begin a process to remove the retained pay. In exchange, a lump sum equivalent to 18 months of the retained pay was offered. Employees had two choices: agree or be dismissed and re-engaged on a contract without retained pay.

In response, the union USDAW brought a case before the High Court on behalf of the affected employees, arguing they would not have agreed to the relocation originally had they known this could happen further down the line. It asked for an injunction preventing Tesco from taking the proposed action.

In the High Court, relying on the use of “permanent” and “guaranteed” in documents from the time, it was held that a term should be implied into the affected employees’ contracts that Tesco would not terminate their employment for the purposes of removing the term. Otherwise, the court argued, this would negatively impact the employees’ legal rights. As a result, the injunction was put in place.

On appeal, the Court of Appeal overturned this decision on the basis it placed upon Tesco the obligation not only to maintain the retained pay, but also the employment of those benefitting from it and that was an unworkable outcome. The court could find no evidence that there was a mutual intention to create employment for life (save for site closure or retirement) for those in receipt of retained pay, nor that the use of the word “permanent” was an indication of a limit on the circumstances in which the contract could be terminated.

It was then appealed to the SC which has now reinstated the injunction, confirming that it agreed with the reasoning of the High Court. However, the court was clear to point out that this did not prevent Tesco from dismissing the affected employees for other, unrelated reasons.

Belief in English Nationalism not protected by the Equality Act 2010

The Employment Appeal Tribunal (EAT) had to consider, in the case of Thomas v Surrey and Borders Partnership NHS Foundation Trust, whether the claimant’s belief in English Nationalism met the tests for philosophical belief so that it is protected by the Equality Act 2010.

The claimant was engaged through an employment agency to deliver consultancy services to the respondent. He was notified that his assignment had been terminated because he had an unspent conviction which he had failed to declare. The claimant, however, alleged that the real reason was because of his political affiliation and philosophical belief in English nationalism. He brought a claim to the ET alleging belief discrimination.

The ET, at a preliminary hearing, applied the five criteria that come from the case of Grainger plc v Nicholson which was incorporated into the Equality and Human Rights Commission’s Employment Statutory Code of Practice. It held that the first four of the criteria were met:

l the claimant’s belief in English nationalism, with anti-Islamic views as part of that, was genuinely held

l the belief was a belief and not an opinion or viewpoint based on the present state of information available – it was a settled view of the claimant’s English identity and how society in England should function

l national identity and how the country is governed were necessarily weighty and substantial aspects of human life and behaviour – the claimant’s belief included views about the way in which a society in which those of varied racial origins, religions and cultures should be ordered

l the belief attained a certain level of cogency, seriousness, cohesion and importance – although the terms in which the claimant expressed his views were usually offensive and disparaging, the subject matter was not “outside the bounds of democratic debate”.

It was on the fifth Grainger test, however, that the claimant’s belief failed because the ET held that the belief was not worthy of respect in a democratic society; it was incompatible with human dignity and conflicted with the fundamental rights of others.

The decision was appealed.

On appeal, the EAT agreed with the ET and dismissed the appeal. The EAT held that while the claimant wasn’t prevented from holding his views, the EAT held that he was not able to complain that he had been discriminated against because of those beliefs.

The EAT held that the claimant’s views were not capable of protection under the European Convention of Human Rights as they contravened Article 17. The EAT echoed the ET’s comments that “…the claimant is not prevented from holding his views, but he is outside of the right to complain that he has been discriminated against in relation to those beliefs in the circumstances covered by the Equality Act 2010”.