In our third quarterly case law update of 2022, we discuss four of the most significant employment law cases since April and consider the lessons that can be learned from them.

Long COVID as a disability

The impact of the pandemic is still being felt, not least by those people suffering from Long COVID. The case of Burke v Turning Point Scotland considered whether an employee with Long COVID symptoms was disabled within the meaning of the Equality Act 2010.

Mr Burke had been employed as a caretaker since 2001. In November 2020, he tested positive for COVID-19. His symptoms were mild at the start but he shortly after began to develop severe headaches and fatigue. The simplest daily tasks were a struggle and he frequently had to lie down to recover. Mr Burke’s health began to improve from January 2022, but he still had difficulty sleeping and the resulting fatigue made daily activities difficult.

Mr Burke was off work from November 2020. Two occupational health reports stated he was fit to return to work and that the disability provisions of the Equality Act 2010 were unlikely to apply despite his medical fit notes stating he was suffering the effects of Long COVID and post-viral fatigue syndrome. Mr Burke was dismissed in August 2021 due to ill health as his employer saw no likely return date. He then brought, amongst others, a disability discrimination claim.

The tribunal concluded that Mr Burke was disabled during the relevant period. He had a physical impairment as a result of the post-viral fatigue syndrome which affected his ability to carry out normal day-to-day activities. The effect was more than minor or trivial and considered long term because it could last for a period of 12 months.

This case demonstrates that Long COVID may be considered a disability for the purposes of the Equality Act, although this will always come down to the particular facts of each case. Employers should, however, bear this in mind when managing employees with Long COVID and will need to consider whether the employee is legally disabled and, if so, whether any reasonable adjustments should be made.

Philosophical belief

The issue of which philosophical beliefs warrant protection under the Equality Act 2010 has been much debated recently, and the case of Free Miles v The Royal Veterinary College, is a useful reminder of the test which must be applied in such cases.

Ms Free Miles, a veterinary nurse employed by the Royal Veterinary College, was dismissed for trespass, theft and her connection with an animal rights group that endorsed law breaking activities. In searching her flat, the police also found a sick turkey which Ms Free Miles housed in breach of her tenancy agreement.

Ms Free Miles brought an employment tribunal claim against the Royal Veterinary College for direct and indirect philosophical belief discrimination. She argued her belief in ethical veganism included a moral obligation to take positive action to reduce animal suffering. She further argued that positive action to reduce animal suffering includes trespass and removing animals fell within that moral obligation.

The tribunal held that Ms Miles’ belief did not amount to a philosophical belief under section 10 of the Equality Act 2010 since, amongst other reasons, it included a positive obligation to break the law. The tribunal held that a belief encouraging unlawful actions and interference with the property rights of others could not be worthy of respect in a democratic society. It further held that it is not open to individuals to decide which laws to obey and disobey and accordingly, Ms Free Miles' discrimination claims were dismissed by the Tribunal.

The circumstances involved in this case are unusual and employer’s should be mindful that the decision doesn’t preclude ethical veganism itself from being a protected philosophical belief. Ultimately, each case should be considered on its own facts.

Harassment

In Mellor v MFG Academies Trust the tribunal found that it was sex harassment for an employer to fail to provide workplace facilities for an employee to express breastmilk in the workplace.

Ms Mellor was a teacher and on return from maternity leave in 2019, the school allowed Ms Mellor’s partner to bring her baby to school to be breastfed. Ms Mellor asked for a room to feed her child, which the employer provided. As time went on, Ms Mellor required a room to express breastmilk. Ms Mellor fell pregnant again in 2020 and formally requested in writing multiple times a private room in the workplace to express milk.

The employer did not provide a room. Consequently, Ms Mellor expressed milk either in her car or the toilets. She was only given 25 minutes to have lunch and as expressing milk took 20 minutes, she only had 5 minutes to eat her lunch. She filed claims of direct and indirect sex discrimination and sex harassment against her employer.

The tribunal upheld the sex harassment claim but the direct and indirect sex discrimination claims were unsuccessful. The tribunal held that the conduct of the employer had the effect of creating a degrading or humiliating environment for Ms Mellor. The direct discrimination claim failed as the failure to provide a room was found to be caused by administrative incompetence rather than because of her sex. The indirect discrimination claim failed because the provision, criterion or practice in this case (i.e. the expressing of breastmilk) could not be applied to both men and women and therefore no comparative disadvantage could arise.

Although the decision in this case is one of first instance and not binding on other tribunals it is a useful reminder to employers of the importance of supporting employees returning from maternity leave and breastfeeding.

Constructive Dismissal

Our final case, Singh v Metroline West Ltd, concerns a constructive dismissal. Mr Singh was invited to a disciplinary hearing but was signed off sick by his doctor the next day. His employer believed this was an attempt to avoid the disciplinary hearing. While absent, he was examined by occupational health who suggested his sickness was genuine. Despite this, Mr Singh’s employer only paid him statutory sick pay (instead of company sick pay). Alleging that the failure to pay him company sick pay was a fundamental breach of contract, Mr Singh brought a claim for constructive dismissal.

The tribunal found that the employer had a contractual right to suspend Mr Singh without pay if it thought his absence was not genuine, but they had not exercised this right. It also found that Mr Singh’s employment contract only allowed company sick pay to be withheld where absence was found not to be genuine after a proper investigation. Since the employer had not carried out a proper investigation and the contract contained no other right to withhold sick pay, the tribunal found that there was a breach of contract, but concluded that it was not fundamental. The tribunal considered the employer’s intention of withholding pay was to encourage Mr Singh to fully participate in the disciplinary process and not to end the employment relationship.

However, on appeal, the EAT held that the correct approach is to consider whether the employer demonstrates an intention to no longer follow the terms of the contract and, if so, whether this action is so serious that it goes to the heart of the contract. As a result, the EAT upheld Mr Singh’s appeal and found that there was a fundamental breach of contract on the basis that the employer deliberately withheld sick pay which resulted in a significant reduction in earnings, and it could have made use of other contractual provisions to deal with suspicions about his absence.

This case serves as a warning to employers to ensure that their own policies and procedures are exhausted and that adequate investigation is carried out before taking any action. Employers should also be mindful that an employee being on sick leave doesn’t automatically exclude them from the disciplinary process and disciplinary meetings can be adapted appropriately for employees on sick leave to attend. Employers should always seek appropriate advice in relation to each set of facts.