HR briefing - June 2021

24 June 2021

Welcome to this month's briefing for HR teams and in-house employment counsel – bringing you this month’s employment law highlights in an easy-to-read package.

In the courts

Health & safety dismissals

We have flagged in previous posts the protection available to employees who are dismissed or subjected to a detriment (e.g. disciplinary sanctions) where they refuse to return to their place of work "in circumstances of danger which the employee reasonably believed to be serious and imminent". Two Employment Tribunal decisions have considered this protection in the context of Covid-19 and the first lockdown, and are good reminders for employers as they begin to bring their workforces back from homeworking.

In the first, a chef was summarily dismissed by text message after refusing to return to work without assurances from the restaurant about PPE and Covid-safe measures. Unsurprisingly, that dismissal was unfair. In the second, an employee repeatedly asked to be furloughed, but was asked to continue working as the business (a PPE distributor) was very busy and his role could not be done from home. He refused to attend the workplace, and was dismissed. The Tribunal found his eventual dismissal fair.

Clearly, the facts of each case will vary, and will be critical to the outcome. Employers should ensure their return to work plans are made with proper consultation, and that particular individuals or groups may need to be treated differently.

Religion and belief

Employers will be familiar with the protected characteristics listed in the Equality Act 2010, which include both gender reassignment and religion or belief. In a decision that reached the front pages, the EAT has recently ruled on an area where these two protected characteristics come into potential conflict. The question was whether so-called “gender-critical” beliefs were protected. Those beliefs hold, amongst other things, that sex is immutable, transwomen can never be the same as “real” women, spaces should be reserved for “real” women, and natal pronouns should be used – a practice often called “mis-gendering”.

When assessing whether a belief qualifies for protection, the Tribunals apply five threshold tests: (i) the belief must be genuinely held; (ii) it must be a belief and not an opinion or viewpoint; (iii) it must be a belief as to a weighty and substantial aspect of human life and behaviour; (iv) it must attain a certain level of cogency, seriousness, cohesion and importance; and (v) it must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

The focus in this case was the final criterion. Adopting the approach of the European Court of Human Rights, the EAT concluded that only the most offensive forms of hate speech (e.g. Nazism or totalitarianism) should fail this part of the test. “Gender-critical” views, while offensive to some, are not at that extreme end of the spectrum.  They are therefore protected in principle. The EAT was at pains to stress, however, that just because a belief qualifies for protection, that does not give adherents of that belief carte blanche to offend colleagues, harass them or discriminate against them. Such behaviours would give rise to liability, whatever the belief system motivating them.

Trade union activity

UK legislation protects workers who take industrial action from being dismissed. It does not, according to previously settled case law, protect them against other forms of detriment, such as demotion. In a significant change to the law, the EAT has found that this gap in coverage is incompatible with the UK’s obligations under the European Convention on Human rights, which guarantees freedom of assembly, and only permits limitations on that freedom in very limited circumstances. The EAT therefore felt able to read words into the UK statute to give a compatible reading. With the exception of pay, which employers can legitimately withhold from workers on strike, no other forms of detrimental treatment are therefore permitted.

In the news


At the beginning of the third lockdown in January 2021 we covered some of the issues surrounding Covid-19 vaccination, particularly whether employers could take action against employees who refused to be vaccinated. That question remains a live one for many employers, but a more frequent question, in our experience, is whether employers can ask employees about their vaccination status, and retain that data in order for management planning. That engages difficult data privacy and employment law issues, but the general rule is that anonymous and voluntary disclosure is usually uncontroversial, but the closer employers move towards mandatory and/or non-anonymous disclosure, the more a data privacy impact assessment will be a necessary first step.