Employment and discrimination newsletter out now - July 2021

Welcome to July's employment law newsletter

Though Covid and its impact on the workplace remain centre-stage in our news section, we also highlight the importance of the Dobson case on working mums' rights; another court appearance for Maya Forstater and her former employer CGD and the 4th judgment on Deliveroo riders' employment status.

Case law analysis is provided this month by Craig Ludlow with an in-depth review of Mercer v (1) Alternative Future Group Ltd (2) Pritchard (re: the UK’s failure to protect workers for participating in strike action as per ECHR Article 11 rights); Naomi Webber considers Steer v Stormsure (interim relief); Daniel Brown on Forstater v CGD Europe & Others; Katherine Anderson on Robinson v His

Highness Sheikh Khalid Bin Saqr Al-Qasimi (failure to pay taxes and unfair dismissal); and Grace Nicholls on A v B (the importance of chronology in strike out procedures).

Finally, you are invited to book a place to attend our webinar on 'The law on transgender issues', due to take place on Thursday 2 September at 11am.

Decision in Dobson case to help protect working mums' rights

Mrs Dobson, a nurse and mother of three, who was unable to accommodate new, flexible working patterns imposed by her employer North Cumbria Integrated Care NHS FT due to childcare commitments, has won her appeal for unfair dismissal and indirect sex discrimination.

The decision by the EAT sets an important precedent for working mothers, as tribunals will need, in future, to take

the disparity in childcare loads between men and women into account in their judgments.

The impact of the delay in lifting coronavirus restrictions on employers

Personnel Today examines the delay in the lifting of all coronavirus restrictions and its possible impact on employers, in relation to: the legal requirement to work from home; the permitted exceptions to the working from home guidance; whether employees can be forced to return to the office and the case of vulnerable employees.

Maya Forstater's former employer set for more court action on her version of the facts 

Maya Forstater, whose views on trans people were found to be protected as a “philosophical belief” by the EAT, is to have her version of facts contested in court by her former employer the Centre for Global Development (CGD).

While CGD will not be contesting the EAT’s 10/6 ruling, their court action will seek to examine when trans people’s rights will be considered to have

been infringed if and when free speech crosses the line from an honestly held belief to bullying, attacks and intimidation.

TUC in bid for long Covid to be treated as a disability

Following a survey of 3,500 people commissioned by the TUC which has found that just over half of respondents with long Covid symptoms (such as fatigue, brain fog and shortness of breath), have experienced some form of discrimination or disadvantage where they work, the union is urging for legal protections from discrimination in the workplace.

Deliveroo riders confirmed as self-employed by the Court of Appeal

The fourth court judgment on Deliveroo's riders employment status in Britain, this time in the Court of Appeal, returned the same result, that Deliveroo riders are self-employed, denying them the right to organise via a trade union. The judgment relied on Deliveroo riders’ right to arrange a substitute to perform their duties - should they be unable or unwilling to work.

Clarks staff in strike consultation over ‘fire and rehire’ threat 

Following the take over of Somerset based manufacturer and retailer Clarks shoes by Hong Kong-based investment firm LionRock Capital, over 100 workers are considering strike action in a bid to oppose the downgrading of their current contractual terms. The practice of 'fire and rehire' has received widespread publicity as a result of the pandemic, as more employers seek more favourable terms.

UK’s failure to confer protection against action short of dismissal for participating in strike action is an unjustified interference with ECHR Article 11 rights

Craig Ludlow analyses Mercer v (1) Alternative Future Group Ltd (2) Pritchard (UKEAT/0196/20/JOJ), a judgment which constitutes, without doubt, a significant development in the field of trade union / industrial relations and a resounding victory for the claimant and trade unions generally.

Interim relief not incompatible

Naomi Webber reviews Steer v Stormsure Ltd [2021] EWCA Civ 887, a case which examines whether the lack of provision for interim relief in discrimination and victimisation claims under the Equality Act does not breach ECHR rules.

View Naomi's profile here

When is a belief not worthy of respect in a democratic society?

Daniel Brown analyses the landmark case of Forstater v CGD Europe & Others UKEAT/0105/20/JOJ, in which the London EAT found Maya Forstater's view of transgender people to be protected as a “philosophical belief” under the Equality Act. Read the judgment here.

Can a claimant who has not paid her taxes succeed in a claim for unfair or wrongful dismissal?

Katherine Anderson analyses Robinson v His Highness Sheikh Khalid Bin Saqr Al-Qasimi [2021] EWCA Civ 862, a case which highlights the key principles to be applied where an employer raises a defence of illegality, a potential defence which is often considered by employers in disputes over employee status where tax and national insurance have not been paid on the basis that the claimant was an employee.

Chronology is king: strike out in the EAT

Grace Nicholls reviews the case of A v B UKEATS/0042/19/SS(V) in which practitioners are reminded that while every strike out application is naturally very fact sensitive, when such applications are made, the basis for seeking them under rule 37 needs to be made clearly, with, as far as possible, a chronology of events set out in the clearest possible terms.

The law on transgender issues - Webinar on 2/9

Following HHJ Choudhury’s judgment on Maya Forstater v CGD Europe and Others and the sustained interest and impact of transgender issues in the workplace and in education institutions, join 3PB’s specialist employment and education law practitioners at 11am on 2 September 2021 for an update and discussion in relation to this important area.

Meet the team

3PB’s employment law group offers expert advisory and advocacy services to private and public sector employers across all areas of employment law including unfair dismissal, discrimination, equal pay, industrial disputes, executive contracts, wrongful dismissals, restrictive covenants, whistleblowing, TUPE, injunctions, pensions disputes and disciplinary proceedings.