Back in February, we identified 10 cases to keep an eye out for in 2023. We now have the outcome in two of those cases. Here, in part two of our Employment Essentials 2023 Mid-Year Report, our Employment, Labour & Equalities team discusses the outcome in those two cases together with eight other notable judgments for our pick of 10 need-to-know judgments from the first half of 2023.

  1. Redundancy: Suitable alternatives to redundancy
  2. Holiday pay: Calculating holiday pay on termination of employment
  3. Data protection: 'Legal Proceedings' Exemption
  4. Worker status: Contractual terms still relevant
  5. Discrimination: Acceptable or unacceptable manifestation of belief?
  6. Discrimination: The 'duped decision-maker'
  7. Discrimination: Perception
  8. Discrimination: Indirect associative discrimination
  9. Discrimination – 'Something' arising from disability
  10. Discrimination: Flexible working requests

1. Redundancy: Suitable alternatives to redundancy

Even if a dismissal is genuinely on grounds of redundancy, whether it is fair or unfair to dismiss for that reason depends on whether the employer acted reasonably in dismissing the employee for that reason in all the circumstances. In particular it has long been the case that employers need to reasonably consider suitable alternatives to redundancy

During the period in which the Coronavirus Job Retention Scheme (CJRS) operated, were employers expected to consider furlough under the scheme as an alternative to redundancy? In a genuine redundancy situation, would failure to consider furlough mean any dismissal for redundancy would be procedurally unfair? We now have the answer from the Employment Appeal Tribunal (EAT) – Yes.

In the first of our 'one to watch in 2023' cases, Mhinurwa v Lovingangels Care Ltd, the Connor v Chief Constable of the South Yorkshire Police concerns regulation 14 of the Working Time Regulations 1998 (WTR), which provides that workers are entitled to be paid in lieu of untaken statutory leave entitlement only in the leave year in which their employment terminates.

Under reg 14 payment of unused holiday in the year of termination can be either (a) such sum as provided in a 'relevant agreement' or (b) where there are no provisions of a 'relevant agreement' which apply, according to a statutory formula.

In this case, it was agreed that Mr Connor was entitled to be paid in lieu for 5.5 days of unused holiday on termination of his employment. His employment contract (a 'relevant agreement') said payment for accrued holiday at the end of his employment would be '…based on 1/365th of annual salary for each day's leave…' Calculating the payment according to this formula meant Mr Connor received less than he would have been paid had he taken the holiday. He brought a claim for unlawful deduction from wages.

Ostensibly reg 14 appears to allow employers to make payments on termination under a 'relevant agreement' that do not precisely reflect what the worker would have been paid had they actually taken the leave during their employment, save that the sum paid should be more than nominal. The Riley v Student Housing Company (Ops) Ltd.

Mr Riley claimed that his former employer had breached the data protection principles whilst processing his personal data when defending employment tribunal (ET) proceedings for unlawful discrimination brought by another former employee. In those proceedings, the former employee alleged Mr Riley, his line manager, had subjected him to derogatory comments concerning his disability.

Mr Riley later claimed £75,000 for his ex-employer's failure to comply with the UK Personal Data in Litigation: Assessing the Data Protection Act's 'Legal Proceedings' Exemption.

4. Worker status: Contractual terms still relevant

Recent years have seen a number of 'worker status' claims from those working in today's gig economy. Many gig economy workers have been able to establish that they do indeed have 'worker status', for example, the high profile Uber drivers' litigation. The headline from the Supreme Court judgment in Uber is whether an individual is a 'worker' is primarily a question of statutory not contractual interpretation. You start with the purpose of the statutory provision and interpret it in the way that best gives effect to that purpose, 'irrespective of what had been contractually agreed'.

The Ter-Berg v Simply Smile Manor House Ltd and others has clarified that the reference in Uber to it being wrong to use the contract as a starting point does not mean that the written terms are irrelevant. Rather it is saying that in a case where the true intent of the parties is in dispute, it is necessary to consider everything which may cast light on whether these terms reflect their agreement, rather than the stricter approach that conventional contractual principles would allow.

As we stated at the time, the Supreme Court handed down its judgment in Uber (see The Worker's Evolution (Uber Edition): Who is a 'Worker' in Modern Workplaces?), the Uber judgment does not mean that the question of whether someone is a worker or employee has become purely one of statute with no role at all for contract.

Lesson for employers:

To establish worker status, the individual must be obliged under a contract to "perform personally any work or services for another party to the contract." Following Uber, you start by considering who the legislation is intended to protect as 'workers'. You then look at all the facts, including the contract as well as the conduct of the parties, and decide whether a person is a worker. So, the contract is not determinative, but it is still a relevant factor.

5. Discrimination: Acceptable or unacceptable manifestation of belief?

We now turn to a number of discrimination cases beginning with the second of our 'one to watch out for in 2023' cases, Higgs v Farmor's School.

While those holding a gender-critical belief are protected under the Equality Act 2010 (as are those holding a gender identity belief), the manifestation of such a belief may, depending on the circumstances, be restricted.

In Higgs, the tribunal found that a Christian employee was not discriminated against due to her gender critical beliefs as her dismissal was not due to her holding of those beliefs but the inflammatory language used in social media posts. The Alcedo Orange Ltd v Ferridge-Gunn, the Greasley-Adams v Royal Mail Group Ltd, bullying complaints had been raised by two colleagues in relation to another employee who had Asperger's Syndrome (Mr Greasley-Adams). In response to questions raised by the investigator into those complaints, Mr Greasley-Adams' complainants described him as 'difficult' and 'nosey'. Mr Greasley-Adams only became aware of these comments when he received the internal investigation report upholding the complaints of bullying made against him.

The CHEZ judgment that an indirect discrimination claim may be brought by a person not possessing the protected characteristic of those disadvantaged by the relevant provision, criterion or practice (PCP). It is enough that the person suffers alongside those who have a protected characteristic, provided the treatment stems from a measure which impacts disproportionately due to that group's protected characteristic. This left a question mark over the indirect discrimination provisions of the Equality Act 2010 which require an individual to establish that the Follows v Nationwide Building Society. The tribunal accepted that carers of disabled people were less likely to be able to be office-based than non-carers.

We now have a second tribunal judgment. The case of Rollett & others v British Airways PLC concerned changes to shift patterns which made life more difficult for employees commuting from mainland Europe, but not for those living in the UK. While the vast majority of those impacted were foreign nationals, one was a UK national.

The tribunal agreed that the Equality Act 2010 provisions must be read to protect against indirect associative discrimination. However, it then significantly differs from the Follows judgment. It held that indirect associative discrimination is limited to where the employee can show that the employer applied a McQueen v General Optical Council, the Glover v Lacoste UK Ltd the Read part one of our 2023 Employment Essentials Mid-Year report to learn about the key legislative developments this year.

If you have any questions about this article, or about employment law in general, please get in touch with Anna Fletcher or Connie Cliff.