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In our first alert of 2022 we look at two recent cases and highlight the key takeaways for employers.
Fear of catching COVID-19 is not a “philosophical belief” protected by the Equality Act 2010
While only a first instance Judgment, employers will welcome this decision which held that a fear of catching COVID-19 does not qualify as a “philosophical belief” and therefore is not protected by discrimination law. This should assist employers who are keen to get employees back into the workplace (once the current government guidance to “work from home if you can” is lifted). Employers should note that whilst this Judgment makes a discrimination claim on such grounds less likely to be successful, employees could still bring other claims on health and safety grounds relating to concerns about catching COVID-19.
In more detail:
In July 2020 the claimant refused to return to her workplace on the grounds of health and safety and she had a “genuine fear of getting the virus [herself] and a fear of passing it on to [her] partner (who is at high risk of getting seriously unwell from COVID-19)”. Her employer did not accept she had a reasonable belief that returning to work would put her or her husband in serious and imminent danger and accordingly withheld her wages. The claimant claimed that she had been discriminated against on the grounds of her belief which she stated was “a fear of catching COVID-19 and a need to protect [herself] and others”.
For a belief to qualify as a “philosophical belief” it is assessed by reference to the following five criteria set out in previous case law:
(i) The belief must be genuinely held.
(ii) It must be a belief and not an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion, and importance.
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others
The Judge held that the second and third criterion were not met and accordingly the claimant’s fear did not amount to a “belief”. It held that rather than a belief it is a reaction to a threat of physical harm and accordingly the second criterion was not satisfied. In respect of the third criterion, the Judge held that as the fear is about the claimant herself and protection of others (principally her partner) – it was not wide enough to satisfy the criterion of being a “weighty and substantial aspect of human life and behaviour”.
The case continues as this decision was the outcome of a preliminary hearing to determine whether the claimant’s fear was a belief protected by the Equality Act 2010. This decision will be particularly welcomed by employers who are keen to encourage staff back to the workforce when government guidance allows. See key takeaway above for more detail.
Case: X v Y EMPLOYMENT TRIBUNALS (publishing.service.gov.uk)
Raising numerous frivolous and vexatious grievances is a fair reason for dismissal
In a decision which will please employers, the Employment Appeal Tribunal has held that it was fair for an employer to dismiss an employee for bringing numerous vexatious and frivolous grievances which he refused to progress or withdraw. This is a useful example for employers that numerous grievances of a vexatious nature, which are not properly pursued or withdrawn, can be a sufficiently serious reason to justify dismissal.
On a more technical note, the Judgment also confirms that when considering if a dismissal for gross misconduct is fair it is not always necessary to for a Tribunal to determine whether the claimant’s conduct amounted to a contractual breach.
In more detail:
Mr Hope, employed by the British Medical Association, brought numerous grievances against senior managers, which he wished to discuss informally with his line manager. However, given the complaints involved more senior managers, his line manager was unable to resolve the issues. Mr Hope refused to progress any grievances to the formal stage but also refused to withdraw them. A formal grievance meeting was scheduled but Mr Hope refused to attend it, even though he was told that it was a reasonable management instruction to attend. The meeting proceeded in his absence, and his grievances were not upheld. His employer took disciplinary action against him and dismissed him for gross misconduct. It considered that his conduct in bringing numerous vexatious and frivolous grievances and refusing to comply with the reasonable management instruction to attend the formal grievance meeting constituted gross misconduct.
The claimant brought a claim for unfair dismissal which the Employment Tribunal dismissed, finding that the dismissal was fair. Mr Hope appealed to the Employment Appeal Tribunal. The claimant sought to rely on previous case law (Sandwell and West Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09/LA) as authority for the proposition that a contractual analysis is required when the label “gross misconduct” is used.
The Employment Appeal Tribunal dismissed the appeal.
The test for determining whether a dismissal is fair involves satisfying the Tribunal that the reason for dismissal is a potentially fair reason as set out in statute.
If the employer establishes a potentially fair reason, the Tribunal will need to consider whether the employer acted reasonably in treating the reason as sufficient to justify dismissal, having regard to all the circumstances of the case. When considering “all the circumstances” whether an employee is in breach of contractual obligations is a potentially relevant consideration.
The Judge here held that no contractual analysis was necessary. The respondent did not seek to rely on any “contractually stipulated” act to amount to gross misconduct. In the absence of that contractual element, it was not necessary for the Tribunal to determine whether the claimant’s conduct of raising the grievances amounted to a contractual breach.
This case is a helpful example of where an employee’s vexatious and frivolous grievances, and reluctance to progress or withdraw their grievances, amounted to conduct which was sufficiently serious to justify dismissal and which was in the range of reasonable responses for the employer. It also confirms that it is not always necessary to undertake a contractual analysis in determining whether a dismissal is fair or not. For more information see key takeaway above.
If you have questions on any of the topics in this alert please contact Paul Reeves, Leanne Raven or your usual Stephenson Harwood contact. If you haven’t yet listened to our latest podcast on three hot topics of 2022, you can access it here.