Employment Eye March 2023

Welcome to our latest round up of employment law developments and what they mean for employers.

Protection from Redundancy (Pregnancy and Family Leave) Bill

A new Redundancy Protection Bill is currently at the committee stage of the House of Lords. The bill sets out to reform protections for new parents returning from maternity, adoption and parental leave. Once implemented, the new bill could extend protection from redundancy for up to six months after returning from maternity leave and looks to include employees returning from other types of family leave as well.

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Discrimination in relation to controversial beliefs and their manifestation

Following previous cases relating to gender critical and similar beliefs that have garnered press attention (i.e. Forstater v CGD Europe and others and Mackereth v DWP & Advanced Personnel Management Group (UK) Limited), we discuss a further case that highlights that whilst a controversial belief may be protected under the Equality Act 2010, an employer is not required to allow inappropriate manifestations of that belief, particularly where that manifestation conflicts with its other obligations.

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Whistleblowing – Can the conduct of the whistleblower be separated from the disclosures they are making?

In January 2023, the Supreme Court refused the Claimant permission to appeal the Court of Appeal judgment in the case of Kong v Gulf International Bank UK Limited.

We examine this interesting case, where the Court of Appeal upheld the Employment Appeal Tribunal’s finding that it was open to the Employment Tribunal, when deciding in a whistleblowing case that the principal reason for an employee’s dismissal was not the protected disclosures, to distinguish between the Claimant’s conduct in making the protected disclosures and the disclosures themselves.

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Protection from Redundancy (Pregnancy and Family Leave) Bill

Following a consultation in 2019, the government announced that it would look to put in place better protections from redundancy for new parents. The consultation came after independent research was conducted by BEIS and the Equality and Human Rights Commission in to discrimination relating to pregnancy and maternity leave. The findings were that 77% of mothers surveyed felt that they had a negative/discriminatory experience during pregnancy, maternity leave and/or on their return from maternity leave, with over 50% describing this as negatively impacting their future opportunities, current status or job security. 11% of women were reported to have been pushed out of the work force after becoming pregnant, which if scaled up could amount to around 54,000 women a year. Furthermore, research has suggested that there were significantly higher rates of redundancy for women at some point in the period of pregnancy, maternity leave or following their return to work than women as a whole.

The Government announced it would take action and it was anticipated that these further protections were going to appear in their proposed upcoming ‘Employment Bill’. However, this bill appears to have been benched for the time being.

Instead, a Private Members Bill has now been introduced by Dan Jarvis MP which sets out provisions to extend the protections for persons returning from maternity, adoption and parental leave. The Government has showed its support for the Bill and it has now passed through the House of Commons and is set for a second reading in the House of Lords. It is anticipated that the Bill will pass in to law in late 2023.

The current law

The Equality Act 2010 currently sets out that women who are pregnant and or have recently given birth are explicitly protected from discrimination for ‘a protected period’. This protected period runs from the start of a person’s pregnancy to the date they return from ordinary or additional maternity leave or two weeks after the end of the pregnancy.

The Employment Rights Act 1996 provides the Secretary of State with powers to make regulations about redundancy protection during a period of maternity, adoption and/or shared parental leave.

Further, under the Maternity and Parental Leave etc Regulations 1999, before making an employee on maternity leave redundant, employers have an obligation to offer them a suitable alternative vacancy where one is available. This affords women on maternity leave priority over other employees who are also at risk of redundancy, as it is an offer of the vacancy not simply an opportunity to apply. However, this protection is currently limited to the ‘protected period’ and therefore does not apply beyond when an employee returns to work from maternity leave. It also does not protect employees on other types of family leave.

The changes

The Bill as proposed would seek to amend the Employment Rights Act 1996 by extending the Secretary of State’s power to make regulations for redundancy protection both during and after pregnancy and then for a period after an individual’s return to work from maternity, adoption or shared parental leave.

The Bill contains the following clauses:

1. Extension of the Secretary of State’s regulation-making powers to make provisions including:
   • Requiring an employer to offer alternative employment to an employee facing redundancy during pregnancy.
   • Introducing consequences for employers that fail to offer alternative employment.
   • Enabling the protected period to begin after the end of a period of pregnancy – thereby protecting those who have not yet informed their employer that they are pregnant but have suffered a miscarriage
2. Extension of the Secretary of State’s powers to make regulations about redundancy “during or after” maternity, adoption or shared parental leave.
3. Extension of the Bill to England, Wales and Scotland

Commentary

The purpose of putting in place these new regulations will be to protect new parents from discrimination in the workplace where it is related to a period of parental leave. Whilst this is a step in the right direction, there has been a suggestion that the protections do not go far enough. ‘Pregnant then Screwed’ (a charity that seeks to protect, support and promote the rights of pregnant women and mothers) have expressed their concerns that it is not just redundancy that new mothers are facing on returning to work. Workplace discrimination extends beyond this and includes where employers have made it difficult for new mothers to return to work following a period of leave and/or they have found themselves managed out. It has also been argued that it is not just an increase in rights that new parents need to tackle discrimination, but that the current Employment Tribunal system is no longer effective, with new parents not pursuing claims due to long delays and costs involved in bringing a claim against their employer.

The new Bill has also reintroduced the debate regarding the current time limits for bringing a claim in the Employment Tribunal. During the debate in the House of Commons, it was raised that the current time limit of three months for bringing a claim was prohibitive and that this should be extended to six months; this approach being supported by Pregnancy then Screwed. This proposal however is not being considered as part of the reforms on the understanding that the three month time limit can already be extended for discrimination where considered to be just and equitable to do so.

Whilst these changes have been long awaited and look to improve protections for new parents returning from family leave, their effect on the wider issue of pregnancy and maternity discrimination will remain to be seen.

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Discrimination in relation to controversial beliefs and their manifestation

Background

Following previous cases relating to gender critical and similar beliefs that have garnered press attention (i.e. Forstater v CGD Europe and others and Mackereth v DWP & Advanced Personnel Management Group (UK) Limited), we discuss a further case that highlights that whilst a controversial belief may be protected under the Equality Act 2010, an employer is not required to allow inappropriate manifestations of that belief, particularly where that manifestation conflicts with other requirements on the employer.

The protection of gender critical beliefs is a particularly pertinent topic in our current climate of highly polarised debates, where there are often strongly held views on both sides, some of which are unpopular and considered offensive by others.

Previous case law has confirmed that there is a low threshold for establishing that a belief merits protection under the Equality Act, and for example gender critical beliefs have been repeatedly found to meet that threshold, despite being offensive or shocking to some.

However, even if a claimant succeeds in establishing that their belief is protected, and that they suffered less favourable treatment, an employer can defend against such a claim if it can demonstrate that the reason for the less favourable treatment was not the belief itself, but the way in which it has been manifested by the claimant, i.e. is the manifestation dissociable from the belief itself.

The recent case of Randall v Trent College Ltd is a further example of this.

Facts

In May 2019, a school chaplain delivered two sermons to children about ‘competing ideologies’. This followed the school's adoption of the "Educate and Celebrate" (E&C) programme, which was an Ofsted and DfE recognised best practice programme with the aim of " taking a whole-school approach to tackling homophobic, biphobic and transphobic bullying and ingrained attitudes in schools". The chaplain did not agree with E&C, as he felt it went beyond the stance of inclusivity and much of the programme appeared contrary to Christian teaching. In the sermon, he stated that pupils did “not have to accept the ideas and ideologies of LGBT activists". The Claimant had been previously told when delivering sermons on topics such as sexual orientation and gender identity that these were sensitive topics that should only be dealt with in a classroom setting where ideas can be discussed and challenged. Dealing with them in chapel risked distress and psychological harm to vulnerable LGBT+ students. The Claimant ignored this advice and also did not share the topic with the school in advance.

There were a large number of complaints about the sermon and he was subsequently summarily dismissed for gross misconduct, although reinstated on appeal. He was later dismissed by reason of redundancy in November 2020.

Employment Tribunal (ET) decision

The claimant brought claims of religion or belief discrimination, harassment, victimisation, and unfair dismissal. It was agreed that the claimant's beliefs were protected. However the ET held that his treatment had not been because of his beliefs, but it was for reasons separable from them and due to the manner in which he expressed them which was objectionable.

The school had been justified in objecting to the way the claimant manifested his beliefs. His conduct was likely to damage the school’s reputation as his actions were contrary to its safeguarding obligations, its obligations under the independent school’s regulations, and its own ethos.

The ET commented that the chaplain had no regard to his audience and his sermons were entirely self-serving and not driven by the needs of the pupils who had not expressed any issue with E&C. They considered that he anticipated complaints but did not alert the school to his sermon in advance knowing that he would be instructed not to deliver it. It was reasonable for the school to require that such topics were discussed in a more appropriate environment with appropriate sensitivity. The Claimant held a position of trust and abused that position by disregarding his duty to safeguard the audience and delivering the sermons knowing the potential for harm to pupils.

Comment

This case is helpful for employers who are balancing competing obligations and where they consider that an employee is acting inappropriately in relation to a controversial belief that they hold. It confirms that the fact that someone holds a particular belief does not allow them to treat others in a way that conflicts with the employer’s legitimate values or the law.

However, caution in dealing with these types of beliefs and issues is advisable given that even highly controversial and unpopular beliefs are likely to be protected under the Equality Act 2010 and it is for the employer to demonstrate that it is an inappropriate manifestation by the employee that is the reason for their action, rather than the belief itself. This will always depend on the individual factual circumstances of the case and requires careful consideration.

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Whistleblowing – Can the conduct of the whistleblower be separated from the disclosures they are making?

Summary

In January 2023, the Supreme Court refused the Claimant permission to appeal the Court of Appeal judgment in the case of Kong v Gulf International Bank UK Limited.

We examine this interesting case, where the Court of Appeal upheld the Employment Appeal Tribunal’s finding that it was open to the Employment Tribunal, when deciding in a whistleblowing case that the principal reason for an employee’s dismissal was not the protected disclosures, to distinguish between the Claimant’s conduct in making the protected disclosures and the disclosures themselves.

Facts

In Kong v Gulf International Bank UK Limited, the Claimant, Ms Kong (Head of Financial Audit) raised disclosures regarding the use of a particular legal template governing one of the Bank’s new investment products, which the Head of Legal was responsible for. During an exchange between Ms Kong and the Head of Legal, she queried the legal awareness of the Bank’s Head of Legal on this particular issue.

The Head of Legal subsequently raised a complaint to the Bank’s Head of HR and their CEO that Ms Kong had questioned her professional integrity. In making this complaint, she had suggested that she could no longer work with Ms Kong. Following discussions between the Head of HR and the CEO, it was recommended that Ms Kong be dismissed.

Ms Kong was later dismissed during a meeting with the Head of HR, the CEO and Ms Kong’s manager, the Group Chief Auditor. At this meeting, the CEO informed Ms Kong that her behaviour, manner and approach with colleagues had resulted in colleagues not wanting to work with her. In the letter dismissing Ms Kong this pointed to the act of her questioning the Head of Legal’s professional integrity, which was described as “falling well short of the standard of professional behaviour expected.”

Employment Tribunal decision

The Employment Tribunal upheld Ms Kong’s claims for ordinary unfair dismissal and confirmed that her claim for unlawful detriments would have succeeded, however it was out of time.

Most interestingly, it rejected Ms Kong’s claim for automatic unfair dismissal. Whilst the Tribunal accepted that the Head of Legal’s complaint about Ms Kong was motivated by the protected disclosures she had made, and that this complaint was a “material part” of the decision to dismiss her, the Tribunal found that the “principal reason” for Ms Kong’s dismissal by the dismissing decision makers was not the actual protected disclosures made, but instead, the fact that she had questioned the Head of Legal’s professional awareness. Crucially, the Tribunal found that this could properly be separated from the protected disclosure itself as the reason for the dismissal.

This was upheld by the Employment Appeal Tribunal who concluded that the Tribunal was correct not to attribute the Head of Legal’s motives to the Bank and that the focus should be on the motives of the dismissal decision makers only (the Head of HR, CEO and Group Chief Auditor). It was considered that their decision was not based on the content or fact of the disclosures made, but instead, the way Ms Kong had conveyed her criticisms to the Head of Legal. They were content that the Tribunal had directed itself correctly on the issue of the separability of the reason for the dismissal and the protected disclosures. The appeal was therefore dismissed.

Ms Kong subsequently appealed to the Court of Appeal, at which point Protect, the UK’s whistleblowing charity, intervened in the case, determining that that this was a case of “importance to public policy” and argued that an employee’s conduct in making a disclosure should only be properly considered separable from the making of a protected disclosure where that conduct constitutes wholly unreasonable behaviour or serious misconduct. They noted that Ms Kong’s behaviour had been determined as being reasonable by the Tribunal; stating that her disclosure was “conciliatory in tone and careful in the way [it was raised] so as to avoid causing [those responsible] any embarrassment”.

Despite this, the Court of Appeal disagreed and found that there is no need for behaviour objectively to reach a particular threshold of seriousness before it can be viewed as separable from the disclosure. It also considered that separability is not a freestanding rule of law, and needs to be decided on the facts of each case.

Commentary

Arguably, this case is a welcome decision for employers, as it demonstrates that an employer may be able to successfully defend a whistleblowing dismissal claim if it is able to show that the genuine reason for dismissal was the whistleblower’s conduct, even if the conduct was not objectively serious or unreasonable. The Court did however consider that there are likely to be very few cases where employers will be able to rely on upset or criticism caused by the act of making a protected disclosure, as a separate and distinct reason for the treatment from the protected disclosure itself.​

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If you would like advice or assistance in relation to any workforce issues, or indeed any of the topics mentioned in this newsletter, please get in touch with a member of our Employment Team.