Employment tribunal and court judgments | June 2021

Mercer v Alternative Future Group Ltd.

In this case, Mrs Mercer was employed by Alternative Future Group Ltd. She was the Acting Chief Executive and a workplace representative for the trade union, Unison. Unison called a series of strikes and Mrs Mercer was involved in planning and organising them. Subsequently, Mrs Mercer was suspended by her employer for nearly two weeks and issued with a written warning for abandoning her shift.  She brought a claim in the Employment Tribunal under s.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) which provides protection from detriment for participating in industrial action or other trade union activities.

At first instance, the Employment Tribunal found that "trade union activities" did not include preparations for strike action and so Mrs Mercer's claim failed. She appealed and the Employment Appeal Tribunal (EAT) found that any restriction, however small, on a right to participate in trade union-sanctioned protest or strike action would interfere with Article 11 of the European Convention on Human Rights (ECHR), (Right to freedom of assembly and to join trade unions). Therefore, TULRCA must be read to include protection against detriment for preparing or taking part in industrial action.

In light of this finding, employers should take extra care when dealing with employees who are involved in strike action in future as they will be protected (in theory, indefinitely) from detriment for having done so.

Forstater v CGD Europe & Ors, Index on Censorship and EHRC intervening

In this case, the claimant, Ms Forstater, did not have her consultancy contract renewed after voicing the opinion on Twitter that people cannot change their biological sex and that only two biological sexes in human beings exist.  She brought a claim in the Employment Tribunal for discrimination based on religion or belief.  At a Preliminary Hearing, the Employment Tribunal found that her beliefs did not amount to a philosophical belief that qualified for protection under the Equality Act 2010.  The Employment Tribunal held that, even paying due regard to the qualified right to freedom of expression, people cannot expect their beliefs to be protected if their core belief involves violating others' dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

On appeal, the EAT decided that it was in fact a philosophical belief and that holding the belief, as opposed to manifesting it, is protected.

Manifestation will still be relevant and a belief must be "worthy of respect in a democratic society" but it was found that Ms Forstater's gender-critical beliefs, which were noted as widely shared in society (including by some trans persons and by a number of respected academics), and which did not seek to destroy the rights of trans persons, did not fall into the category of beliefs excluded from protection.

The case was remitted to the Employment Tribunal to be decided so much is yet to be determined.  This judgment does however clarify that all but the most extreme beliefs are "worthy of respect in a democratic society". 

Robinson v Al-Qasimi

The Court of Appeal has held in Robinson v Al Qasimi that an employee who had performed their contract of employment illegally for seven years by failing to pay income tax was not prevented from claiming unfair dismissal and wrongful dismissal. The Court confirmed that a tribunal considering a defence based on illegality must assess whether denying the claim would be proportionate to the illegality.

Although the claimant's contract stated she was responsible for paying her own tax and the respondent took the view she was self-employed, it later transpired this was not the case. Upon seeking advice, the respondent was told that the claimant would likely be considered employed so her income would have to be taxed at source. The claimant disclosed that she had not paid any tax on her earnings for many years. There was a dispute over liability for tax arrears and the claimant accused the respondent of breaching tax law. The claimant was dismissed with immediate effect and brought claims for unfair and wrongful dismissal.

The case reached the Court of Appeal which found that despite the illegality in the performance of the contract, proportionally, the claimant should not be deprived of her rights to be dismissed fairly and in accordance with the terms of her contract.

Employers should therefore be mindful to act proportionately when faced with an employee whose continued employment may be illegal for some reason.