REWARD
girls”. These Tweets ultimately led to her contract not being renewed by the Centre for Global Development (CGD) and her profile was removed from the organisation’s website. As a result, she raised a claim for philosophical belief discrimination; the first ET found that her belief wasn’t protected because it didn’t meet the 5th strand of the ‘Grainger’ test. This test requires beliefs to be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. She appealed this decision to the EAT, who decided her belief was protected. The EAT was very clear that, for the belief not to meet the 5th strand, it had to be “the gravest form of hate speech, was inciting violence, or was as antithetical to Convention principles as Nazism or totalitarianism.” Following the EAT’s ruling, the case went back to the ET to decide whether Forstater was discriminated against for holding her protected beliefs. In a judgment released in July 2022, the ET confirmed the actions of the CGD amounted to unlawful direct discrimination and victimisation. The ET’s judgment is somewhat unsurprising given the circumstances. The key determination in this case was the EAT’s ruling that Forstater’s gender-critical beliefs were worthy of protection under the Equality Act as a philosophical belief. Where an employee is found to hold a protected philosophical belief and is subjected to a detriment as a result (in this case, her contract was not renewed), it’s likely that claims for discrimination will succeed. Employers must keep in mind that, even where they do not agree with an employee’s opinions or viewpoints, it’s possible that it will still be a protected characteristic. Employers may only have flexibility to act against an employee for their belief if the belief seeks to destroy the rights of others. As confirmed by the tribunal system, a belief is still worthy of protection even where it may cause offence or upset to others. Businesses are encouraged to have diverse workforces, with differing backgrounds, opinions and beliefs. A robust diversity and inclusion policy, supported by training sessions and
initiatives, can allow employees to collaborate and share ideas amicably. However, employers should be clear that no employee should be subject to any form of bullying, discrimination or harassment due to any protected characteristic they hold. Employers should be clear that no employee should be subject to any form of bullying, discrimination or harassment due to any protected characteristic they hold Automatically unfair dismissal after employee raises health and safety concerns In the case of Hernandez v Swiftclean Ltd, a cleaner raised concerns through his trade
employees can raise whistleblowing claims to the ET if they’re placed at a detriment for raising the issues. Similarly, under the Trade Union and Labour Relations (Consolidation) Act 1992, a dismissal will be automatically unfair if the reason for the dismissal is that the employee had made use of trade union services at an appropriate time. During the pandemic, multiple health and safety issues were raised by the employee, with support from his trade union representative, but were repeatedly ignored by the employer. In July 2020, Hernandez was instructed to use his personal mobile phone for work outside of his normal hours. This was refused. In response, his manager said, “If you can use your mobile to call your s****y union that is worthless, you can also call me.” This was seen by the employee as an attempt to stop or deter him from speaking further with the union representative. In September 2020, out of the blue, Hernandez received a dismissal letter alleging poor performance because of client complaints. No evidence of the complaints was provided, nor was any dismissal process followed. An appeal was made but ignored, leading the employee to raise claims for unfair dismissal, automatic unfair dismissal and unlawful detriment. The ET upheld all claims, concluding the real reason for the dismissal was because the manager was annoyed that Hernandez had raised protected disclosures and had used a trade union to do so. He was therefore punishing him as a result. This made his dismissal automatically unfair on two counts: making a protected disclosure and using services of a trade union. The ET further highlighted that, even if the employee did not meet the tests for automatic unfair dismissal, he would have won an ordinary unfair dismissal claim. This is due to his termination being both substantively and procedurally unfair; no evidence was provided of his alleged poor performance, nor were any meetings held with him, to give him the opportunity to explain his actions. Due to the lack of fair process, the ET added a 25% uplift to compensation. n
union regarding: ● working hours
● not being given gloves for toilet cleaning ● being forced to use an uninsured car for work ● lack of adequate personal protective equipment or training. Together, these issues amounted to a protected disclosure under the Employment Rights Act 1996. A protected disclosure is when an employee reasonably believes a wrongdoing at work has happened, which is in the public interest. This must be either: ● a criminal offence ● failure to comply with legal obligations ● a miscarriage of justice ● health and safety is endangered ● the environment is damaged; or ● any action to conceal these. The employee must also raise the issue to a relevant person, such as an appointed individual within the organisation, or to an external party. Common examples include the Health and Safety Executive, local authorities, members of Parliament or regulatory bodies. Where a disclosure is protected,
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| Professional in Payroll, Pensions and Reward |
Issue 84 | October 2022
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