Employment and discrimination newsletter out now - June 2021

Welcome to June's newsletter

We’ve plenty of news in this month's  employment law newsletter, including what future workplaces might look like, and the extent to which future court hearings should be remote. We also have ET judgments relating to events from the early lockdown period starting to filter through.

Case law-wise we have in-depth analysis of NMC v Somerville (re: worker status) and Chief Constable of GMP v Aston (re: protected disclosures) courtesy of Daniel Brown and Colin McDevitt.

As we went to press the EAT had just handed down judgment in Forstater v CDG Europe & ors (whether gender-

critical beliefs are capable of amounting to a ‘philosophical belief’ for the purposes of EqA 2010). Detailed analysis will be in next month’s newsletter; in the meantime keep your eyes peeled for details of a webinar on the topic.

Maya Forstater wins tribunal appeal over transgender tweet

Maya Forstater, who lost her job after voicing her opinion on Twitter that people cannot change their biological sex has won her appeal in the EAT.

The Honourable Mr Justice Choudhury confirmed her belief did fall under the Equalities Act.

Lachlan Wilson joins Acas to advise on the future of the workplace post-pandemic 

3PB’s specialist employment and public law barrister Lachlan Wilson was amongst a panel of 4 guest speakers at a webinar organised by ACAS on returning to the workplace after the Coronavirus pandemic, advising a large number of employers, lawyers, and employee representatives on the legal issues that could arise with returning (or not returning) to the workplace post-pandemic.

The Four Bars confirm hearings should be ‘in person’

The representative bodies for advocates across the UK and Ireland announce that whilst they are supportive of continuing use of technology for hearings, the default position should be ‘in person’ hearings for anything which could potentially dispose of all or part of a case.

Pandemic related ET judgments now coming through

ET judgments relating to the pandemic are starting to come through. One of the first of those judgments is Prosser v Community Gateway Association Ltd, in which Warren J concluded that requiring a pregnant woman to stay at home during lockdown is not maternity discrimination.

Removal from post for historic online content

In the last few weeks two high profile individuals have been suspended or removed from their posts for thoughts published online years previously. The Google Head of Diversity was removed for a 2007 blog post, and Ollie Robinson, an England Cricketer was suspended for tweets posted in 2012 and 2013.

With the huge increase in online content over the last 15 years and the recent scrutiny of historical posts this is a suitable time for clients to amend or update disciplinary policies to address how they will deal with historic matters which come to light and are not in keeping with company values.

Thousands of Tesco workers win battle in ongoing equal pay war

The claimants, mostly women, had argued that they should have received equal pay for work of equal value compared with mostly male colleagues employed in the supermarket's distribution centres. In its judgment, the CJEU confirmed that the single-source test can be relied upon by workers in the UK bringing equal value claims, further clarifying a grey area of UK law, following the ASDA Supreme Court judgment earlier this year.

Can an individual be a ‘worker’ if they are not obliged to accept any work at all?

Daniel Brown analyses the decision in Nursing and Midwifery Council v Somerville UKEAT/0258/20/RN(V), which puts the spotlight on the Uber judgment and its impact on determining employee/worker status, in this case for one of the numerous regulatory bodies that operate panels of individuals to determine allegations of professional misconduct.

Whistleblowing: causation, guidance for complex cases and judicial proceedings immunity

Colin McDevitt examines The Chief Constable of Greater Manchester Police V Aston & Others UKEAT/0304/19/RN, in which we are reminded of the approach to be applied in cases where there are multiple protected disclosures spanning a significant period and allegations of multiple detriments involving multiple perpetrators and multiple victims.

Meet the team

3PB’s employment law group offers expert advisory and advocacy services to private and public sector employers across all areas of employment law including unfair dismissal, discrimination, equal pay, industrial disputes, executive contracts, wrongful dismissals, restrictive covenants, whistleblowing, TUPE, injunctions, pensions disputes and disciplinary proceedings.