2024 has been a busy year. From multi-million-pound discrimination awards to contentious cases around “fire and rehire,” the year has brought some headline-grabbing developments. For employers, these cases aren’t just fascinating – they’re a series of ‘how-tos’ when it comes to avoiding the same mistakes in your organisation.
In this article, we break down the year’s most pivotal cases. What does a £4.6 million disability discrimination payout mean for employers? How are courts weighing in on topics like gender-critical beliefs? And could an email slip-up really cost someone their job?
Let’s explore this year’s most significant employment law cases and what they mean for employers.
In this article, we’ll cover the following:
- £4.6 million award for disability discrimination following Grenfell fire
- Fire and rehire
- Gender critical beliefs
- Equal pay
- Unfair dismissal after an email was accidentally sent to a customer
- A landmark case to look out for…
Employment Law Case: £4.6 million award for disability discrimination following Grenfell fire
In Wright-Turner v London Borough of Hammersmith & Fulham an employee was awarded one of the highest ever awards for disability discrimination and harassment.
Wright-Turner was employed as a Director of Public Services Reform from November 2017. Shortly before starting the role, she was diagnosed with PTSD following her involvement in supporting residents affected by the Grenfell fire. She had also previously been diagnosed with ADHD.
In a meeting in May 2018, the Chief Executive raised concerns that Wright-Turner had not disclosed her ADHD diagnosis during the application process. The Council later claimed that there was a discussion about extending the probation period. However, the Employment Tribunal did not accept the Council’s claims that the probation extension had been discussed during this meeting.
After work the same day, she went to the pub with colleagues, where she confided in them that she was suffering with her mental health. Her colleagues were so concerned about her that they took her to hospital. She was signed off work due to PTSD and acute anxiety for one month.
Wright-Turner was notified in writing that her probation period had been extended in a letter that was later found to have been backdated. Wright-Turner remained off sick for three months before being dismissed via a letter.
The Employment Tribunal held that the extension of the probation period and the dismissal were both discriminatory, as they would not have occurred if it wasn’t for the claimant’s disability-related sickness absence. There was a lack of any evidence of performance concerns, a lack of process, and a lack of consideration given to alternative options such as extending the probation period. Furthermore, it was held that some witnesses for the Council had attempted to mislead the Tribunal by seeking ‘to rely on facts which they knew to be untrue’.
In total, £4,580,587 was awarded to the claimant. The Tribunal found that Wright-Turner’s health had been so significantly impacted that she would be unlikely to ever work again. Her marriage had ended, and her bank had started repossession proceedings as she had been unable to pay her mortgage. It is expected that the Council will appeal the award.
Key Takeaway
There is often a misled belief that employees with less than two years’ service can be dismissed without risk of a tribunal claim. While employees with short service can’t usually claim unfair dismissal, they do have the right to bring a discrimination claim, which can prove very costly.
This case highlights the risks involved in dismissing a disabled employee. The legal definition of a ‘disability’ is very broad and can include conditions that you wouldn’t usually think of as a disability. We would always suggest that you seek advice before dismissing an employee, particularly if they have a long-term health condition or any other protected characteristic.
Employment Law Case: Fire and rehire
The practice of ‘fire and rehire’ has long been a controversial area of employment law. The practice involves a business ending the employment relationship with employees and rehiring them on different terms and conditions. It is often used when a business wants to reduce pay or benefits or change working conditions such as shift patterns or breaks. Although controversial, ‘fire and rehire’ is currently lawful provided the employer has a fair reason for the dismissal and they follow a fair process.
In Tesco v USDAW, the facts dated back to the closure of some of Tesco’s distribution centres in 2007. At the time, Tesco incentivised employees to remain with the business and relocate to different sites rather than accepting redundancy, by offering them a ‘retained pay’ package which was ‘guaranteed for life’.
In 2021, Tesco attempted to negotiate away the retained pay package. Employees were asked to agree to its removal in return for a one-off payment. They were informed that if they didn’t agree, their employment would be terminated, and they would be offered re-engagement on the same terms and conditions but without retained pay.
The High Court granted an injunction preventing Tesco from dismissing the employees. An appeal by Tesco was upheld in the Court of Appeal, and USDAW later appealed to the Supreme Court.
The Supreme Court unanimously upheld USDAW’s appeal. The judgment referred to the unusual set of circumstances, ie retained pay was not ‘an employee’s ordinary entitlement to an ongoing contractual benefit as consideration for work’, but had been used as a way of incentivising employees to relocate rather than to accept redundancy. The Supreme Court referred to the strong wording of the retained pay clause about its permanent nature. For example, the clause stated that employees would receive the benefit ‘for as long as their employment in the same role continues’ and ‘Retained pay can only be changed by mutual consent’. The Supreme Court held that there was an implied term preventing Tesco from dismissing employees for the purpose of removing retained pay. The injunction preventing dismissal was reinstated.
Key Takeaway
This case was decided on its unique set of facts; we doubt we would have seen the same outcome if the clause had been worded differently. Nevertheless, it is a useful reminder to take care when drafting contractual documents and to be wary of using language which guarantees entitlements on a permanent basis.
The Labour government has previously said that it will ‘end the scourges of ‘fire and ‘rehire’’ and plans to strengthen the Code of Practice. We will update you when we know more.
Employment Law Case: Gender-critical beliefs
In R D Adams v Edinburgh Rape Crisis Centre the Employment Tribunal found that Adams had been unlawfully discriminated against and constructively dismissed for her gender-critical beliefs.
Adams was employed as a Counsellor at the Edinburgh Rape Crisis Centre. Whilst being supportive of trans people, Adams believed that victims of sexual violence should have a choice of whether they wish to engage with male or female support workers.
In 2021, a trans woman without a gender recognition certificate was appointed to the role of CEO. Subsequently, one of Adams’ colleagues, referred to as AB, announced that they were non-binary and changed their name to a male sounding name.
A rape victim emailed to ask if AB was a male or female, explaining that they would feel uncomfortable speaking to a male counsellor. Adams emailed her line manager copying in AB to seek guidance on how to respond to the email, and suggested saying that AB ‘is a woman at birth who now identifies as non-binary’.
Adams was informed that service users should be told that it didn’t employ men, and that it was for individual counsellors to disclose their gender identity for privacy reasons. Adams raised concerns regarding this approach but agreed to follow the guidance.
AB contacted the CEO and said that she felt humiliated by Adams’ actions. Before investigating, the CEO responded by saying that AB no longer had to have any contact with Adams and implied that Adams was transphobic.
A flawed investigation and disciplinary process followed, which found that Adams had engaged in misconduct. However, no warning was issued. Adams was signed off sick and later resigned, stating that she did not feel safe to return to work due to concerns that her beliefs would lead to further accusations of being transphobic.
Adams’ claims of constructive unfair dismissal and discrimination linked to her gender-critical beliefs were successful, and she was awarded £69,000 in compensation. The Tribunal’s judgment was highly critical, stating that the description of Adams’ email to AB as humiliating and transphobic was ‘nonsense’ and AB’s reaction had been ‘completely overblown’. The Tribunal held that Adams had raised legitimate concerns, and the CEO’s response in labelling her as transphobic had influenced the disciplinary panel. The Tribunal stated that the investigation should not have been launched in the first place and was ‘clearly motivated by a strong belief… that the claimant’s views were inherently hateful’. The disciplinary process was described as ‘completely spurious and mishandled’.
Key Takeway
Forstater v CGD Europe famously established that gender-critical beliefs do qualify for protection under the Equality Act. As both gender reassignment and gender-critical beliefs are protected, businesses have the tricky task of carefully balancing these competing rights. Often it will come down to an assessment of the way in which the views have been communicated; is it healthy and respectful debate or does it amount to bullying and harassment?
Employment Law Case: Equal pay
The gender pay gap in the UK remains stubbornly high, currently sitting at 7.7%. In Thandi & Others v Next, over 3,500 retail workers (mostly females) successfully claimed that Next had breached equal pay legislation by paying retail workers less basic pay than warehouse workers. The Tribunal had previously held that the work of both groups were of equal value.
Next explained the difference in pay by referring to market forces, market price and business viability.
The Tribunal found that the reason for the pay disparity was due to cost-cutting considerations rather than business necessity. A higher rate of pay would have been affordable, but a decision was made to keep costs to a minimum. Next was therefore unable to justify the difference in pay as a proportionate means of achieving a legitimate aim. Furthermore the Tribunal said that if market forces could be used as a ‘trump card’, it would defeat the objective of the legislation.
Next has said that it will appeal the judgment.
Key Takeaway
This case highlights the importance of ensuring pay structures are fair and equitable. Relying on market forces alone is not enough to justify pay differences, particularly if this negatively affects females or other employees with protected characteristics.
Businesses that turn a blind eye to equal pay legislation run the risk of negative publicity and costly tribunal claims. It is estimated that the back pay and compensation in this case may be worth more than £30 million!
Employment Law Case: Unfair dismissal after accidentally emailing customer
In Jones v Vale Curtains and Blinds the Employment Tribunal found that Jones had been unfairly dismissed following a customer complaint.
Jones was employed as an Administrator. She received an email from a customer complaining about their order and requesting to change their appointment time. Jones felt that the customer had previously been rude to her on the phone. Jones emailed a colleague saying ‘Can you change this… he’s a twat so it doesn’t matter if you can’t’. By accident, Jones clicked ‘reply’ instead of ‘forward’, and the email was sent to the customer.
When the customer’s wife phoned up and complained, Jones realised the mistake she had made and apologised. Jones contacted her supervisor to explain what had happened and offered to pay the customer £500 out of her own money as a goodwill gesture. The supervisor was unable to resolve the situation, and the customer threatened to go to the press and post online.
A flawed investigation took place, with neither Jones nor the customer being interviewed. Jones attended a disciplinary hearing and explained that the incident had occurred on the birthday of her late daughter and she had been suffering with her mental health. During the hearing the supervisor informed Jones that she had been told by the Managing Director to ‘get rid’ of her. After a seven minute adjournment, Jones was dismissed. Shortly after, the supervisor emailed the customer to notify them of the dismissal.
The Tribunal found that the Managing Director had instructed the supervisor to get rid of Adams after the customer had made further threats. The Tribunal stated that the ‘disciplinary process and the dismissal were a sham designed to placate the customer’. The Tribunal therefore held that the principal reason for the dismissal was not her conduct, but the threat of negative publicity and reviews. The Tribunal acknowledged that this could still amount to a potentially fair reason of ‘some other substantial reason’ for dismissal but concluded that the decision fell ‘well outside the range of responses open to a reasonable employer’. Furthermore, the Tribunal held that the investigation had been inadequate, no alternative options to dismissal had been considered and no fair process had been followed.
Key Takeaway
Everyone makes mistakes, and many of us will have sent an email to the wrong person at some point in our career. This case reminds us of the importance of always conducting a thorough and objective investigation and taking a fair and measured approach when deciding upon an appropriate disciplinary sanction. Decisions should only be made after all the evidence has been considered and the employee has had an opportunity to explain events from their perspective.
Landmark employment law case to look out for…
Christian worker dismissed after posting views on teaching LGBT+ relationships in school
In Higgs v Farmor’s School a Christian school assistant posted on her private Facebook profile about her views on how LGBT+ relationships and sex education were taught in schools. The school received a complaint and Higgs was later dismissed. The Employment Tribunal dismissed Higgs’ claim of discrimination. The Court of Appeal heard the case in October, and we are awaiting the outcome. With submissions from the Equality & Human Rights Commission, Sex Matters, the Church of England Archbishop’s Council and the Free Speech Union, this is expected to be a landmark case. We will update you when we know more.
How we can help
We hope you found this article useful. If you would like advice on employee relations, please contact our team on 0330 223 5253 or office@fitzgeraldhr.co.uk.
Further reading
If you enjoyed this 2024 roundup of employment law cases, we think you’ll find these articles useful:
