Employment tribunal and court judgments | May 2024

Welcome to our monthly update, where we share recent employment cases of interest and the practical considerations for employers.

EAT decides a volunteer can be a worker if they are entitled to be remunerated for their activities.

Groom was one of 3,500 volunteers for the MCA. Having been a volunteer since 1985, his membership was terminated after a disciplinary action. MCA had not allowed Groom to be accompanied by a TU representative at the disciplinary hearing. He brought a Tribunal claim arguing that he was a limb (b) worker (i.e. under section 230(3)(b) of the Employment Rights Act 1996) and, as such, benefited from the statutory right to a companion at disciplinary hearings.

The MCA had a volunteer handbook that governed all volunteers; it set out expectations the MCA had of volunteers, including attendance at mandatory training, reasonable levels of attendance at incidents (with an expectation to attend emergencies) and the ability to claim costs for some activities in order to cover minor costs caused by volunteering and/or to compensate for disruption to personal life/employment and for unsocial hours call outs. Volunteers were given a payslip (and an annual P60 or a P45 when they left).

The ET found that there was no contractual relationship between the parties (in general or in relation to attendance at an activity) and the volunteers could therefore not be classed as ‘limb b’ workers because:

  • The agreement was described as voluntary.
  • There was no “automatic” payment for any activity, many volunteers did not claim pay anyway and some activities were not remunerated at all.
  • MCA did not have significant control over the volunteers.
  • A HMRC investigation concluded that the volunteers were not workers.

As such, the agreement was a voluntary one and Groom did not qualify for the statutory right to be accompanied.

The EAT found that Groom was a worker, overturning the ET decision.

Citing Uber the EAT reiterated that there are three main elements to establish limb (b) worker status:

  1. A contract under which an individual undertakes to perform work or services for the other party.
  2. Personal service (so an undertaking the individual will do the work or perform the services themselves).
  3. The other party is not a client or customer of a profession or business carried on by the individual.

The last two elements were not at issue (Groom was required to carry out the volunteer work personally and it was not as part of a business that he carried on). So, the issue for the EAT to consider was whether there was a contract and whether that was to provide work or services to MCA.

The EAT found:

  • Volunteering was not a special category of its own that meant there could not be a contract between a volunteer and the organisation they volunteered for.
  • The volunteers were entitled to be remunerated for many activities, meaning there was a contract for the provision of service for those activities in relation to which remuneration was payable, regardless of the fact that the payment was not automatic, and many volunteers did not claim it (the fact the right to payment existed was the relevant factor).
  • Minimum attendance levels and mandatory training pointed to mutuality of obligation and therefore a contract for the provision of services and not for reimbursement of expenses.
  • The wording in the handbook, which emphasised the voluntary nature of the agreement and the absence of mutuality of obligation, was not determinative as per Uber it is the reality of the relationship and not the labels used in documents which are determinative.

Charities and other organisations should take particular care when engaging people on a volunteer basis including revisiting documents governing your relationship with volunteers to ensure that:

  • No minimum requirements are placed upon them.
  • You are not offering payment over and above expenses actually incurred.

Inadvertently creating a group of workers from your volunteer group will mean that they would be technically entitled to National Minimum Wage, holiday and sick pay, the right not to be discriminated against in addition to having a right to be accompanied to disciplinary hearings.

Objectionable manifestations of gender critical beliefs may not be protected under the Equality Act 2010

Lister was employed as a teacher at New College Swindon since 2020. He holds gender-critical beliefs, described by him as the belief that “sex is binary, immutable, and not to be conflated with gender identity”.

Student A joined Lister’s classes and emailed to request that he use a different name and pronouns for them than listed on the school’s IT systems.

Lister referred Student A to the school’s safeguarding team who found no concerns. Nevertheless, Lister failed to use the requested name or pronouns of the student. When addressing Student A, instead of using their preferred name he would gesture toward them.

An issue arose in relation to an all-female maths competition arose whereby Lister wrote Student A’s “deadname” (i.e., Student A’s previous female name) among the list of entrants on the whiteboard in front of the class, saying Student A could enter as they were “a girl”. Student A expressed their upset after the class with this, in response to which Lister made various comments about transitioning being “irreversible” and causing “long-term medical problems”.

A few months later, Student B complained to the school about Lister’s treatment of Student A. Colleagues of Lister also raised similar concerns; one complained about social media posts which expressed opposition to using preferred names and pronouns of students. In two online training sessions, Lister also made various comments equating gender diversity with mental health issues which provoked a strong reaction from colleagues and caused one member of staff to leave the session.

Lister was suspended and ultimately dismissed following a risk assessment which found a very high risk of harm because of his refusal to use requested names and pronouns, and his desire to persuade the student not to transition.

Lister brought complaints of discrimination on the grounds of religion or belief and unfair dismissal.

All of Lister’s claims failed.

The Tribunal recognised that it was not in dispute that gender critical beliefs were capable of protection as philosophical beliefs under the Equality Act 2010 (as per Forstater), but Lister had manifested his beliefs in an objectionable manner and the action taken by the College was a proportionate means of achieving a legitimate aim (following the ET decision in Higgs). The Tribunal held that “everybody is permitted to express their views in a free and democratic society, but not to the extent that others are upset, distressed and/or harassed.”

The Tribunal highlighted that clear policies were in place at the College around a positive approach to be taken to reassignment, but Lister had failed to follow them in several respects. He had also expressed his intention to continue to ignore them, meaning dismissal was an appropriate sanction.

Lister was also referred to the Disclosure and Barring Service (DBS) and was subsequently barred from participating in regulated activities with children.

Lister is the latest development in a series of cases on gender critical beliefs in the workplace. Since gender critical beliefs were held to be capable of protection under the Equality Act 2010 in Forstater, several cases have further articulated and clarified the nature and extent of that protection. Lister follows the binding EAT decision of Higgs (although that case is proceeding to the Court of Appeal) and makes it clear that while gender-critical beliefs are capable of being protected under the Equality Act 2010, objectionable manifestation, such as refusing to use requested pronouns or names or seeking to persuade a student not to transition in this context, is not.

The case provides useful guidance for employers seeking to balance the interests of employees with competing philosophical and/or religious beliefs. There were two points which were particularly important to the Tribunal finding that the College’s actions in response to Lister’s objectionable manifestation of his gender critical beliefs.

  1. Policies

The College had very clear policies in place relating to gender diversity and in particular, there was a Gender Reassignment Policy in place. This explicitly prohibited discrimination based on gender identity and provided that discrimination, harassment or abuse around gender identity would be treated as serious disciplinary offences. Staff were directed to use the name, title and pronoun by which a student (over the age of 16) wants to be addressed.

By adopting clear and accessible policies on trans and non-binary discrimination and harassment in environments where it is appropriate to do so, employers can help to protect gender diverse customers, service users or staff and ensure all staff members understand what is expected from them in the workplace.

  1. Thorough, balanced investigation

The Tribunal was also satisfied that the College had conducted a thorough and balanced disciplinary process and investigation. The relevant issues were clearly understood during the disciplinary process, in particular the balance between the right of one party to hold a particular belief versus the potential discriminatory impact this may have on another where a person’s philosophical belief is being manifested in an objectionable way.

In cases like this one where the law is regularly evolving and requires a careful balancing act, employers should conduct robust and thorough investigations with reference to existing policies. Each investigation should reflect all of the relevant facts and circumstances of the case and recognise the need for a nuanced approach. Legal advice on balancing the approach is advisable.

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