Although there’s been no further progress on the Employment Rights Bill, the courts and tribunals had an active month. The Court of Appeal opined on freedom of expression in the workplace, and the EAT considered injury to feelings compensation and indirect sex discrimination.
Chapter 1 - Religious belief and freedom of expression in the workplace
The Court of Appeal’s decision in Higgs v Farmor’s School found that an employee’s dismissal for expressing personal views based on her Christian beliefs on Facebook was clearly disproportionate. Although the employer had a legitimate interest in protecting its reputation and Mrs Higgs had expressed her views provocatively, dismissal wasn’t justified.
The decision provides helpful guidance for employers faced with complaints about an employee who has expressed private views publicly. If those views are protected under the Equality Act, employers should exercise caution when deciding what action, if any, to take. Even if an employee has expressed themselves in a way that is objectively inappropriate or objectionable, the employer’s response must be proportionate. You can read more about the case and relevant factors for employers to take into account here.
Next steps
- A wide range of beliefs are protected under the Equality Act, going beyond religious beliefs.
- It is important to recognise an employee’s right to express views that are protected under the Equality Act, even if they offend others. The question is whether the employee has expressed themselves in a way to which the employer could legitimately object.
- The area continues to develop. Other cases this year will test the boundaries of what amounts to a protected belief and proportionate action by an employer.
Chapter 2 - Valuing injury to feelings
In Eddie Stobart Ltd v Graham, the EAT provided guidance on valuing injury to feelings compensation in a discrimination claim.
Ms Graham was made redundant while she was on maternity leave. She raised a grievance during the process, but her emails were blocked by her employer’s firewall. Even though she told her managers she had lodged a grievance, they didn’t take any further steps to investigate. Although her dismissal was fair, a tribunal found that the failure to progress the grievance was detrimental treatment related to her absence on maternity leave and awarded £10,000 in injury to feelings compensation.
The EAT decided this was manifestly excessive and substituted a sum of £2,000. Injury to feelings compensation reflects the measure of hurt to the claimant, not the severity of the discrimination. However, the nature of the discrimination may be relevant if there is limited evidence from the claimant. For example, open discrimination or ridicule, or discrimination where there is a power imbalance, may allow a tribunal to conclude that the injury is more severe. Other relevant factors might include an injury’s duration, or its effect on a claimant’s past, current and future work and personal life.
Here the discrimination was an isolated act, it was not overt, did not involve ridicule and most of Ms Graham’s claims failed, including unfair dismissal. This meant the respondent’s failure to progress the grievance was limited in scope and impact and made the tribunal’s award perverse.
Next steps
- The employer could have avoided the situation if it had made further enquiries when the employee told it that she had raised a grievance. The initial IT failure, which was unrelated to the employee’s pregnancy, did not prevent a finding of maternity discrimination when managers failed to follow up.
- The factors the EAT identifies as relevant to an injury to feelings award may provide a guide to an appropriate figure for compensation during settlement discussions.
Chapter 3 - Travel requirements and group disadvantage
An indirect discrimination claim will only succeed if a provision, criterion or practice puts a group sharing a protected characteristic at a particular disadvantage. PCPs relating to working hours may put women at a disadvantage, because they are still more likely to be the primary carers of small children. This is sometimes referred to as the childcare disparity. But in Marston Holdings Ltd v Perkins the EAT confirms that a tribunal should not leap to conclusions about group disadvantage.
After Mrs Perkins’ role changed, her manager expected her to travel significant distances for meetings. Mrs Perkins said that although she could travel reasonable distances, she could not travel significant distances for childcare reasons. She claimed indirect sex discrimination. The tribunal accepted that the requirement to travel put women, and the claimant, at a disadvantage because they are the primary carers of young children.
On appeal, the EAT accepted that the tribunal had overstated the position. It appeared simply to accept that because women are the primary carers of small children they cannot travel significant distances. Although this was true for the claimant, it was not necessarily obvious that a requirement to travel gave rise to the relevant disadvantage for women as a group. That issue goes back to the tribunal for further consideration.
Next steps
- Indirect sex discrimination is a particular risk in connection with flexible working requests.
- The decision highlights that a tribunal should not extrapolate group disadvantage from the fact that an individual finds it difficult to comply with an employer’s preferred arrangements.
- Group disadvantage involves examining the interaction of the employer’s arrangements with the childcare disparity. For example, night work is more likely to put women as a group at a disadvantage, because of the absence of night-time childcare, than a requirement to attend the office one day a week.
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