March’s Employment Law Digest – Case law round-up

Religious discrimination and redundancy

In the Employment Tribunal (ET) claim of Randall v Trent College Ltd and others:

• The claimant was employed as a school chaplain and in June 2019, he delivered a sermon to pupils in which he told them they did not have to accept “the ideas and ideologies of LGBT activists” where they conflict with Christian values but should make up their own minds.
• Whilst the claimant caveated his sermon with a generalised need for respect and ‘love thy neighbour’ at the beginning and the end, the pupils heard the fundamental message that, in essence, it was wrong to be LGBT+ and religious belief allowed them to discriminate. This was borne out in the subsequent complaints received by the school.
• This led to the claimant’s dismissal but he was later reinstated on appeal and the sanction downgraded to a final written warning because the claimant had not received formal warnings for previous similar incidents. On reinstatement he was subject to various management instructions to prevent repeat behaviour.
• The claimant was (amongst other staff) made redundant approximately 1 year later as part of a restructuring cost saving exercise.
• The claimant alleged that the redundancy had been “artificially orchestrated” and he brought claims of religious discrimination, harassment and unfair dismissal against the school.

The ET held that:

• The school’s treatment of the claimant did not relate to his beliefs. The ET accepted the school’s evidence that it had no issue with the claimant’s beliefs or his right to manifest them. Rather it was the way in which he expressed his beliefs and the subsequent impact. It was because of the time, the place, to whom he expressed his beliefs and the manner in which he expressed them which was objectionable and caused his dismissal. The subsequent management instructions that were imposed on him on his reinstatement was also because of the objectionable manifestation of his beliefs.
• The claimant’s right to manifest his beliefs in the manner he did, could not outweigh the school’s duty to safeguard its pupils from harm or potential harm.
• The balancing exercise involves a consideration of whether a less intrusive measure could have been taken by the school. The school had already tried a less intrusive approach in 2016 by seeking to educate the claimant in the potential harm of delivering such sermons. However, he chose to embark on the same path in 2019.
• The matters complained of by the claimant were not because he held his beliefs or that he manifested them.
• The claimant’s dismissal by reason of redundancy was genuine and not artificially orchestrated to get rid of him and the school had acted reasonably in dismissing him through redundancy.

Time limits for unfair dismissal claims

In Meaker v Cyxtera Technology UK Ltd, the claimant was employed in a heavy manual role. In 2016 and 2018 he suffered back injuries and took an extended period of leave. In 2019 it was agreed that the limitations on his ability to do heavy work were likely to be permanent.

On 7 January 2020 the employer advised the claimant that they were considering terminating his employment and raised the possibility of a settlement agreement.

On 20 January 2020 the claimant had a further conversation with the HR manager, after which he believed that enquiries would be made about alternative employment.

On 5 February 2020 the claimant was sent a letter headed “without prejudice” which stated it had been agreed that there would be a mutual termination of employment, that his last day of employment would be 7 February, he would be paid up to that date, the amounts of holiday pay, and of the payment in lieu of notice he would receive, and that he would be sent his P45. The letter also offered a further ex gratia payment, conditional on the claimant signing an enclosed draft settlement agreement. The claimant received this letter on 7 February 2020.

On 7 February 2020 the claimant rejected the settlement offer.

The respondent followed up its letter of 5 February by making a payment on 14 February 2020 which the claimant was told reflected his payment in lieu of notice and holiday pay entitlement.

On 24 February 2020 the respondent replied to the claimant’s rejection of the settlement offer explaining why he could not return to work.

The claimant brought a claim for unfair dismissal.

A claim for unfair dismissal has to be presented within 3 months of the effective date of termination of employment, subject to extension for the Acas early conciliation process. There are strict rules around extending time for presenting claims after the expiry of the 3 month time limit.

The respondent argued that the claimant’s effective date of termination was 7 February 2020. The claimant argued that it was 14 February 2020. If the claimant was correct, the claim had been presented in time. If the respondent was correct, the claim was out of time.

The Employment Appeal Tribunal dismissed the claimant’s appeal finding that:

• On the assumption that the employment tribunal (ET) was correct that the 5 February 2020 letter was a termination letter, even if it was a repudiatory breach that was not accepted by the claimant, the effective date of termination for the purposes of the unfair dismissal claim was the date of receipt of that letter.
• Even though the opening paragraphs of the 5 February letter referred to an agreement that there would be a mutual termination, which agreement had not in fact been reached, and that the letter was headed “without prejudice”, the ET properly concluded that the letter unambiguously communicated that the respondent had decided to proceed to unilaterally terminate the employment with effect on 7 February 2020, and that only the offer of an ex gratia payment was conditional upon the claimant signing a settlement agreement.
• The ET had also properly concluded that the claimant had not shown that it was not reasonably practicable to present his unfair dismissal complaint in time.

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Upcoming changes: one to watch

The Retained EU Law (Revocation and Reform) Bill – implications on employment law

The European Union (Withdrawal) Act 2018 took a snapshot of EU law as it applied to the UK at the end of the Brexit transition period on 31 December 2020 and provided for it to continue to apply in domestic UK law.

The government’s Retained EU Law (Revocation and Reform) Bill will repeal all retained EU law on 31 December 2023 unless specific steps are taken by the government to preserve individual laws, either in their original form or an amended version.

There is a lot of speculation as to how this will impact employment laws in the UK but we do not yet know what will change. So much of UK employment law has come through our membership of the EU including TUPE, rules around working time, agency worker rights, protection for fixed-term and part-time workers and paid holiday. There is also a wealth of UK employment cases which, over the course of our 50 year membership of the EU, have been decided in UK tribunals and appeal courts applying the principles of EU law as well as in the EU appeal courts.

The UK currently benefits from well understood, settled employment laws. As things stand, that will change from the end of this year. At this stage there has been no policy statement from the government to set out its intentions. It would be very helpful for employers to know what is going to happen well in advance so as to reduce the uncertainty heading into 2024.

If you have any questions about any of the cases discussed in this months update, please get in touch with Katie Adams, or another of our expert Employment Law solicitors.