REWARD
The claimant was therefore successful in her claims for failure to make reasonable adjustments and discrimination arising from a disability. The claimant was awarded £64,645.07 which included £2,500 because the respondent failed to concede that the claimant was disabled until late in the proceedings. Mr P Burch v British Airways plc The ET had to consider whether the reasons for the claimant’s refusal to wear a Covid mask amounted to a philosophical belief. The claimant, a pilot, was furloughed during the Covid-19 pandemic, due to a significant downturn in operations. He was due to operate his first flight on 10 February 2022 to Miami as a training trip. On 9 February 2022, his training captain emailed to remind him that he would be required to wear a Covid mask in line with the respondent’s policy. The claimant had a major stress reaction and was consequently unable to fly. Later in February, when he did report for work, he did so without wearing a Covid mask and stated that he was exempt from doing so. The training captain didn’t accept this, and the claimant was stood down and placed on unpaid leave. The claimant believes that as a ‘sovereign being’, he has a right to breathe freely and shouldn’t be subjected to what he considers to be arbitrary and pointless rules which have prevented him from doing so. Claims of unlawful direct and indirect discrimination and harassment were brought, and he sought to rely upon the protected characteristic of philosophical belief. The ET first had to consider whether the reason he refused to wear a Covid mask amounted to a philosophical belief. The ‘Grainger test’ had to therefore be considered by the ET, so called because of the case where these principles come from. The criteria for a philosophical belief are that the belief must be genuinely held; it must be a belief, not an opinion or viewpoint; it must be a belief as to a weighty and substantial aspect of human life and behaviour; it must attain a certain level of cogency, seriousness, cohesion and importance and finally, it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. Although they found that the claimant’s views were genuinely held, the ET established that it was a concept which didn’t affect how the claimant lived his life or
perceived the world, except in a very narrow way. His dedication consisted of persistently not wearing a mask. No other facet of his life was involved. The claimant himself appeared to recognise that not wearing a mask could cause a problem to those who were vulnerable. The ET found that his belief was therefore in conflict with the fundamental rights of others. It was found to not amount to a philosophical belief and so the claimant will not be able to progress further with his discrimination claims. “An employee who is made redundant may not be entitled to a redundancy payment if their employer makes them an offer of alternative employment that’s suitable for them, and they unreasonably refuse” Mrs D Love v M.B. Farm Produce Limited Whether the claimant was unfairly dismissed and entitled to a redundancy payment was considered by the ET, when the claimant refused alternative employment in a redundancy situation but subsequently changed her mind. The claimant was put at risk of redundancy because the farm shop she worked at wasn’t making money and so was closing. Consultation took place and the claimant was offered a role at another farm shop also owned by the respondent. The claimant was asked to confirm in writing whether she wanted to accept this alternative role or not. The claimant stated that because she wasn’t a confident driver, she didn’t wish to work at the other farm shop, despite it actually being nearer to her home and the respondent stating that she would be paid reasonable mileage and fuel expenses. Consequently, the respondent gave notice to the claimant of her redundancy and confirmed that because she refused what the respondent considered to be suitable alternative employment; she wasn’t going to be paid any statutory redundancy payment.
During her notice period, the claimant asked the respondent via a WhatsApp message if she could have a further meeting. The claimant stated that she would consider the original offer of the alternative role but needed some points clarifying. The respondent agreed to go away and get some answers for her. As the claimant had previously stated that she didn’t want to take the alternative role, the respondent had made some enquiries by word of mouth and had found someone who was interested in the role at the remaining farm shop. Although an offer had been made to them, the respondent hadn’t heard back from them. The job, at this point, therefore, remained unfilled. The respondent, however, wrote to the claimant expressing surprise that she had wanted to revisit consideration of the trial in the alternative role. It stated that they considered that the claimant had unreasonably declined the offer of suitable alternative employment, that she was not entitled to a redundancy payment and that her last day of employment would be 29 October 2022. The claimant responded to state that she was surprised to receive the letter considering that she wanted to trial the alternative position. But the respondent never replied to her. This is where the ET found that the respondent had acted unfairly. Although the claimant was in her notice period, she was still an employee and should have been given the opportunity to trial the alternative role. The claimant was, as a result, awarded £7,209.50 in compensation. However, the ET found that the claimant was still not entitled to a redundancy payment. An employee who is made redundant may not be entitled to a redundancy payment if their employer makes them an offer of alternative employment that’s suitable for them, and they unreasonably refuse it. The ET found that although the alternative role was in a different place, aside from that, they weren’t alerted to any other differences. So, it was found by the ET to be a suitable role and her refusal of it was seen to be unreasonable. It then considered whether the claimant’s change of mind in relation to the role during her notice period meant that she would then have a right to the redundancy payment. But the ET found that the right to the redundancy payment wasn’t restored, so she was still not entitled to this payment. n
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| Professional in Payroll, Pensions and Reward |
Issue 96 | December 2023 - January 2024
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