Tag: Employment Tribunal

Categories
Beliefs Case Law Diversity Employment Law Employment Tribunal Equality Act 2010 Freedom of Speech Lousha Reynolds

Balancing Beliefs: Why the EAT Lister v New College Swindon judgement matters

Royal Courts of Justice, London

The UK employment law community is awaiting a pivotal decision from the Employment Appeal Tribunal (EAT): the judgement in Lister v New College Swindon.

Following a preliminary hearing in May 2025, this appeal is one of the most significant belief discrimination cases of the year. For employers, particularly those in the education and public sectors, the outcome will define the practical boundaries between an employee’s right to hold gender-critical beliefs and an employer’s duty to protect service users from harassment.

The Background: Where we left off

The original Employment Tribunal (ET) decision in March 2024 was a comprehensive victory for the employer. Kevin Lister, a maths lecturer, was dismissed for gross misconduct after refusing to use the preferred name and pronouns of a transitioning student (“Student A”).

The ET found that while Mr Lister’s gender-critical beliefs were protected under the Equality Act 2010 (following the precedent in Forstater), his manifestation of those beliefs was “objectionable.” Key factors included:

  • The power imbalance: Mr Lister was a teacher in a position of authority over a minor. 
  • The gender-neutral approach: Rather than using the student’s name, he gestured toward them, which the student found demeaning. 
  • Refusal to comply: During the disciplinary process, he maintained he would not change his behaviour, leaving the college with little choice but to dismiss him to prevent ongoing harm.

Why the appeal is critical

The EAT is now considering whether the first tribunal correctly applied the “boundary” between holding a belief and manifesting it. Mr Lister’s appeal argues that:

  1. The college’s gender reassignment policy was inherently discriminatory by requiring him to act against his conscience.
  2. The tribunal failed to properly balance his Article 9 (Freedom of Thought) and Article 10 (Freedom of Expression) rights under the European Convention on Human Rights.

For legal practitioners, the central question is whether an employer can mandate the use of preferred pronouns in a workplace or educational setting without it amounting to “compelled speech” or indirect discrimination.

What employers should watch for

This judgement will likely provide much-needed clarity on the “proportionality” test. We expect the EAT to address:

Key Issue Employer Consideration 
Manifestation vs. Belief At what point does expressing a belief become “manifestly objectionable” conduct? 
Policy Enforcement Can an employer fairly dismiss an employee solely for refusing to follow a “preferred pronoun” policy? 
Safeguarding Does the duty of care toward students/vulnerable groups trump an employee’s right to manifest their beliefs? 

Practical steps for HR and management

While we await the final word from the EAT, businesses should not remain static. We recommend:

  • Reviewing equality policies: Ensure your policies on gender reassignment and religion/belief are balanced. They should emphasise respect and dignity for all without appearing to indoctrinate or silence protected beliefs.
  • Training on clashing rights: Managers need to understand that two people can have competing protected characteristics. The goal is to manage the impact of the behaviour, not the belief itself.
  • Focus on proportionality: If an employee refuses to comply with a policy, consider whether a less severe sanction than dismissal is possible, unless, as in Lister’s case, the employee makes it clear they will never change their conduct.

Looking ahead

The Lister appeal arrives at a time of heightened sensitivity, following the Government’s long-awaited (and still debated) guidance on gender questioning children in schools. The EAT’s decision will serve as a lighthouse for how these complex, often emotive issues are handled in the tribunal system for years to come.

Do your current Equality and Diversity policies align with the latest EAT guidance?

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

07737 055 584

lreynolds@refreshinglawltd.co.uk

GET IN TOUCH

Lousha Reynolds
Refreshing Law

Categories
Acas Compensation Employment Law Employment Rights Act 2025 Kate Walsh Unfair Dismissal

Removing the statutory cap in unfair dismissal compensation: how will the UK compare to other countries?

The European Union flag, blue with yellow stars, flies in front of the EU Parliament

The Employment Rights Act 2025 was passed late last year, and you will be forgiven for trying to catch up with all the proposed developments — there are so many! One of the most significant is the removal of the statutory cap for the compensatory award in successful unfair dismissal claims (the cap is currently the lower of 52 weeks’ gross pay or £118,223).

The statutory cap will be removed at some point in January 2027

From the information currently available to us, it is likely to be 1 January 2027 on the same date that the qualifying period for unfair dismissal is reduced from 2 years to 6 months.

Once removed, how will the UK fare when compared to a very employee friendly Europe?

In most European counties, unfair dismissal compensation is capped. The aim is simple: balance fairness for employees with predictability for employers.

Let’s look at the different regimes:

  • France link compensation to length of service. Awards start at around three and a half months’ salary (for two years’ service) and cap at 20 months’ salary, even for long-serving employees. 
  • Switzerland limits compensation to six months’ salary. 
  • Sweden caps awards at 32 months’ salary, depending on service. 
  • Spain applies a formula of 33 days’ pay per year of service (for post-2012 hires) but again capped at 24 months’ salary.
  • Italy operates a dual system. Employees hired after March 2015 face capped awards of:
6 to 36 months’ salary for large employers.
3 to 18 months’ salary for small employers.
Following a Constitutional Court ruling, judges now have discretion within those ranges — but the cap remains firmly in place.
  • Ireland caps unfair dismissal compensation at 104 weeks’ total remuneration. 
  • Denmark applies caps under collective agreements (up to 52 weeks’ pay) or six months’ salary for salaried employees, depending on service. 

The common thread for most European countries — compensation is capped, and employers are able to plan negotiations accordingly. Beyond Europe, caps are still the norm. In Australia for example, the Fair Work Commission can award compensation for unfair dismissal but only up to six months’ salary.

The UK will be joining a handful of countries which have uncapped awards. In Luxembourg, judges are given a wide discretion with no fixed statutory cap. Canada has no formal statutory cap, but compensation is typically limited to damages reflecting the employee’s reasonable notice period, rather than open-ended loss. Lastly, in Brazil, employers are required to deposit 8% of the employee’s monthly salary into an account which is managed by the Federal Savings Bank on behalf of the employee. If an employee is dismissed without cause the employer must pay to the employee, (in addition to the payment of accrued rights and as a penalty for unfair dismissal) an amount equal to 40% of that which the employer has deposited into the employee’s severance compensation fund during their employment. The amount of the penalty will therefore depend on the length of employment and on the amount of the employee’s monthly salary.

It is clear that the UK will be joining the minority rather than the majority of countries who have uncapped unfair dismissal awards.

What are the repercussions of an uncapped compensation regime?

The statutory cap currently guides settlement negotiations with parties often negotiating around three to six months’ pay to avoid the time and costs attached to tribunal hearings.

Without the statutory cap:

  • Claimants may be more willing to take cases to a final hearing, adding to an overburdened tribunal system.
  • It is more difficult for employers to quantify the financial risk of a dismissal, which will inevitably impact settlement negotiations.
  • High earners are no longer deterred from lodging Tribunal claims meaning an increase in litigation for this group.
  • There is likely to be more complex remedies hearings that need to consider quantifying bonuses, deferred incentives and unvested equity.
  • Where the Acas Code applies, a potential 25% uplift suddenly bites harder when the underlying award is not capped.
  • On a positive note, it is likely to result in a reduction in more complex discrimination claims and whistleblowing claims as there will no longer be a need to bring these claims to avoid capped compensation.

How should you prepare?

Employers would be wise to start taking preparatory steps to tighten up procedures and ensure a clear document trail is in place. With an extended early conciliation period, plans to increase tribunal time limits for lodging claims and existing tribunal delays, tribunal witnesses will be placed under significant pressure to recall events which took place possibly two to three years ago. HR teams can make both their and witnesses’ lives a lot easier with clear processes and consistent decision making. 

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

GET IN TOUCH

Kate Walsh
Refreshing Law

Categories
Anna Denton-Jones Case Law Employment Law Employment Tribunal Redundancy

Case law update — July 2025

Royal Courts of Justice, London

Case: Hendy Group Ltd v Daniel Kennedy [2024] EAT 106

Background

Daniel Kennedy, a long-serving trainer at Hendy Group Ltd (a car dealership), was made redundant in 2020. He accepted both the need for redundancies and his selection. However, he claimed his employer failed to explore alternative roles for him.

What the employer did

The employer pointed Mr. Kennedy to its internal job board and expected him to apply, like any external candidate. He did apply and attended interviews but wasn’t successful. Instead, an internal candidate and an external candidate were appointed, neither of whom were at risk of redundancy.

Crucially, there was no HR or managerial support to help him find a suitable alternative. It is also important to note that one internal manager actively discouraged his applications, and the employer later confirmed in writing that any further applications made by Mr Kennedy would be rejected.

Tribunal finding

The Employment Tribunal (ET) ruled that the dismissal was unfair because the employer had failed in its obligation to the Claimant to assist him to find an alternative role. In summary that the mere signposting to vacancies, whereby the Claimant was in the same position as an external candidate was insufficient.

Appeal outcome

The employer appealed but the Employment Appeal Tribunal (EAT) upheld the ET’s decision.

The EAT rejected the appeal on all points, reinforcing that:

  1. Employers must actively assist employees in finding suitable alternative employment.
  2. Simply pointing employees to internal vacancies is not sufficient.
  3. The ET was entitled to conclude that Mr. Kennedy would likely have been redeployed with proper support, as there were a number of vacancies for which, on paper at least, Mr Kennedy may have been suitable. As a result, no reduction in compensation (Polkey) was required.

Take aways

  • Redundancy support must go beyond job postings. Active engagement is key — HR/line managers should help identify suitable roles, discuss interests, and offer guidance (even if this involves potential demotion).
  • Document support efforts clearly — failure to do so could lead to a finding of unfair dismissal.
  • Don’t block or discourage internal applications from employees at risk of redundancy.
  • Reasonableness remains central — but what is “reasonable” now includes taking steps beyond minimal signposting.
  • If you’re managing a redundancy process, ensure your HR team is prepared to offer real, practical support when considering suitable alternative roles.

Anna Denton-Jones
Refreshing Law

Categories
Acas Anna Denton-Jones COT3 Agreement Employment Law Employment Tribunal Video

Video | What is a COT3 Agreement?

YouTube video playing on a phone

Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video which discusses what a COT3 Agreement is.

Anna Denton-Jones
Refreshing Law

 

Categories
Anna Denton-Jones Anonymity Disciplinary Dispute Management Employment Law Employment Tribunal Video

Video | Anonymity of witnesses in disciplinary matters

YouTube video playing on a phone

Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video which discusses anonymity of witnesses in disciplinary matters.

Anna Denton-Jones
Refreshing Law

 

Categories
Alternative Dispute Resolution Anna Denton-Jones Dispute Management Employment Law

New guidance on alternative dispute resolution

View of the City of London at sunset

The President of the Employment Tribunals in the UK, Barry Clarke, has issued Presidential Guidance on 7 July 2023 about Alternative Dispute Resolution.

The Guidance acknowledges that the whole Employment Tribunal process has a cost, whether that is for society in terms of running the judicial side of things or for the participants in terms of time, emotional energy, legal costs, damage to reputation and disruption. It acknowledges that whatever the dispute, the Employment Tribunal process involves risk for those involved, both financial, emotional and reputational. In cases where an outcome is fairly clear, the Tribunal’s approach to remedy, when it comes to compensation, can’t be predicted with certainty until the Tribunal has evaluated all of the evidence. Inevitably, alongside the question of whether a claim will succeed, there is always a discussion about what it is worth and in some cases, particularly arrears of pay cases, the costs of arguing about a case can totally outweigh the sums involved.

The Guidance goes onto acknowledge that every time a case is resolved by agreement, in some shape or form, that that is minimising those different types of cost and risk involved. There is an advantage to everybody of being able to move forward if a resolution is reached. From his perspective, resolution of cases also frees resources to be devoted to other cases. You may not know this but when they are listing, the Tribunals routinely put more cases in the diary than there are actually Judges available to hear them, working on an assumption that a high proportion will be resolved.

In terms of settlement options, generally we are talking about conciliation through Acas but also things like Settlement Agreements.

The Guidance emphasises that of course the Tribunal system will decide a case where the parties cannot reach agreement, but the system is going to encourage them to resolve their case by agreement, wherever possible, and this is the focus of the Guidance.

There are four different approaches. This Blog will focus on the three that people are less familiar with: Judicial Mediation, Judicial Assessment and a Dispute Resolution Appointment.

Judicial Mediation is a consensual (meaning the parties have agreed to participate), confidential (without prejudice – so that any concessions made in the meeting will not be used in Tribunal if the process fails) and facilitative (means the Judge is there to facilitate a settlement, not to give any views on the merits of the case in front of them or prospects of success). It is used in cases that are listed for 3 days or more, so complex things like discrimination and whistleblowing cases. This process can be useful early doors before costs have been incurred and usually takes place over a day. If agreement is reached, it falls into the Acas COT3 process to wrap it up. Any Judge that has been involved would not then be involved in a Hearing if the case does reach a hearing.  Success rates are said to be 65-70%.

Judicial Assessment is consensual, confidential and evaluative (evaluative is where the Judge evaluates the respective prospects of success and possible outcomes in terms of remedy whilst remaining impartial). The Judge is able to give an opinion. If the parties don’t accept what is being said, it can certainly assist them to understand the issues at stake and to clarify and narrow the things that are requiring adjudication moving forward so that in itself can be useful to reduce the number of days hearing that is necessary. Again, the Judge that was involved would not be involved in a Final Merits Hearing.

A Dispute Resolution Appointment. This is the new bit – it is non-consensual, confidential and evaluative. It is aimed at cases listed for 6 days or more (more complex claims). A Judge can require the appointment.

Such an appointment can be proactively used where the type of case means that there is going to be a lot of time and effort put into case management, correspondence with the Tribunal or where long hearings are going to contribute to waiting times. These are going to be used where long hearings would be out of proportion with, for example, the fact that the parties are still in an employment relationship or where the likely award would be in respect of injury to feelings only. Such an appointment might also be used if judicial mediation has failed.

Whilst these sorts of cases may settle nearer a hearing time, that in itself, clogs up the system. Effectively, the Tribunal is intervening and requiring the parties to come together to discuss the issues in the case. They can’t of course mandate an outcome from the appointment but they can force minds.

This is usually a 2 or 3 hour hearing which will give an evaluation of prospects of success and possible outcomes whilst remaining impartial. In order to be able to do this effectively, this will take place after the witness statements, so unlike Judicial Mediation, for example, the Judge will have a copy of the relevant paperwork. Again, this is done with a view to the parties really understanding what the case is about and what is at stake, narrowing the issues requiring adjudication and resulting in a shorter more focused final hearing.

Like any change or processes that they are not familiar with, people naturally shy away from trying these things. As a trained mediator, I am of course a big advocate of Alternative Dispute Resolution, particularly because outcomes can be agreed which the Tribunal wouldn’t otherwise be able to order, such as agreed references or apologies.

I took part in a Judicial Mediation last year where I was acting for the Claimant in a high value claim and there were real advantages: the Claimant was able to participate in the comfort of her own home and was not put to the stress and anxiety of travelling to and appearing in a Court environment, the matter was resolved 6 months earlier than it otherwise would have been, again saving a lot of stress and anxiety and she received a sum that she would have been likely to receive had the matter gone to Tribunal. The employer saved themselves 6 months of hassle and all the work in preparing the case.

The next time you are dealing with a difficult dispute, maybe you should give one of these a whirl.

Anna Denton-Jones
Refreshing Law

 

Categories
Anna Denton-Jones Disciplinary Dispute Management Employment Law Employment Tribunal

Getting invite letters right

Royal Courts of Justice, London

A recent case that went to the Employment Appeal Tribunal highlights important issues for employers. The case of London Borough of Hammersmith & Fulham v Keable involved a local authority Public Protection and Safety Officer within the Environmental Health Department with 17 years’ service who was dismissed for serious misconduct arising out of comments he made at rallies outside parliament. The employee concerned had been filmed having conversations. That video made itself online without his knowledge or consent. He didn’t do anything to link his employment to the video. As a result of it being widely re-tweeted, he was publicly identified as the local authority’s employee.

The employee was an anti-Zionist and a member of the Labour Party and Momentum organiser who was attending the rally in his own personal time. The comments he was filmed making included alleging the Zionist movement, prior to World War II, collaborated with the Nazis and that the Zionist movement had accepted that Jews were not acceptable there.

The Tribunal found that the videos were calm, reasonable, non-threatening and conversational. The employee explained that he didn’t intend to offend anyone – it was a private conversation involving an exchange of political opinions carried out between two people willingly.

A local councillor wrote to the employer calling for action against the employee so he was suspended and a disciplinary procedure was followed that led to his dismissal.

The employer acknowledged that the employee had freedom of assembly and expression which included a right to offend others. However, it found that his comments were likely to be perceived as unlawfully hostile on religious grounds and so brought the employer into disrepute. The Dismissing Officer didn’t find the employee had been guilty of discrimination or anti-Semitism but did find that “a reasonable person would conclude that the claimant had said that the Zionists had colluded with the holocaust”.

At the Employment Tribunal, whilst the Claimant’s conduct was potentially a fair reason for dismissal, procedurally the employer was found wanting – in particular:

  1. The employee had not been informed of the specific allegation which led to his dismissal; and
  2. The possibility of a lesser sanction of a warning wasn’t discussed with him.

The Tribunal found that he should be reinstated.

Whilst the case illustrates the sorts of issues employers are now getting embroiled in, what caught my eye was the basic weakness in the employer’s procedure ie:- that what the employee was accused of didn’t tally with what the decision-maker ultimately dismissed him for. This isn’t uncommon. Often the allegations are framed at the stage where an employee is perhaps suspended pending investigation or a statement is made that covers a multitude, such as “your conduct in being filmed making comments”. The disciplinary invite letter might be prepared centrally by HR from a template without any real liaison with the person who is potentially going to be making the disciplinary decision. There is always room for error and before writing the disciplinary invite letter we need to be looking at the potential evidence from a slightly different angle ie:- what the evidence suggests we might be able to prove. The person who is going to be make the decision either needs to be involved or you end up with a potential ‘gap’ where the invite letter says one thing and the decision-maker wants to do something else.

In this case, the employee asked which of his comments that had been recorded was offensive as this is what had been put in his invitation letter.

However, the decision-maker was thinking about the case in terms of his having suggested Zionists collaborated with the Nazis in the Holocaust and that was not put to the employee at the disciplinary hearing.

The Tribunal easily found it was outside the range of reasonable responses to dismiss somebody for misconduct which hadn’t been put to them as part of the investigation or disciplinary process. I’m sure you’d agree that was fair.

What can you do about this?

If the decision-maker, having heard all of the evidence, wants to frame the outcome in a different way to the disciplinary allegations in the invitation letter, they should pause the process. They should explain they believe the allegations haven’t been put correctly. Explain what they believe should have been done instead and then invite the employee to discuss it with their representative in an adjournment, so that they can prepare their response. That might of course mean delaying to a different day. The further meeting to discuss the fresh allegation may well be a relatively short meeting given all of the discussions that have already been held but it will be as important for the employee to be accompanied at the meeting as normal and be able to have their say before the decision-makers comes to their decision.

Compensation was reduced by 10% because of the employee’s culpable conduct in making critical comments about the investigation report.

The employer appealed. Interestingly the Employment Appeal Tribunal upheld that it was procedurally unfair to not have raised with the Claimant whether a warning was appropriate. Any employee, when questioned, would always say that a warning was preferable to dismissal. This is stretching the requirements of the ACAS Code of Practice. Yes, an employer should consider the appropriate lesser sanction as an alternative to dismissal but it is not normally a pre-requisite to consult the employee about that. Given this new ruling the safest thing to do is, routinely in disciplinary hearings, consider whether a warning would be an appropriate sanction and to ask the employee for their views.

Anna Denton-Jones
Refreshing Law

Categories
Anna Denton-Jones Employment Law Employment Tribunal Video

Video | Employment Tribunal litigation

Refreshing Law blue feather logo

Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing Employment Tribunal Litigation, changing timescales and what has happened and changed within the system over the last 18 months.

Anna Denton-Jones
Refreshing Law

Categories
Anna Denton-Jones Duty of Care Employment Law Employment Rights Act 1996 Equality Act 2010 Gender Inclusivity Health Conditions Menopause Sick Pay

Developments in the law relating to menopause

Royal Courts of Justice, London

The Employment Appeal Tribunal has only ever heard two cases in this space. Most recently they dealt with the second case that’s come before them where essentially they told the lower Tribunal off for failing to recognise the employee’s disability and potential sex discrimination claims. The case involved Leicester City Council and a social worker who was claiming constructive unfair dismissal, disability discrimination and sex discrimination. Her claim centred around the Council’s treatment of her in relation to her menopausal symptoms.

In her claim she described suffering from physical, mental and psychological effects of the menopause for a 2 year period. This included insomnia – causing fatigue and tiredness, light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes. These had a negative impact on her life to the extent that she struggled physically and mentally to cope, had been to her GP who prescribed hormone replacement therapy and was under the care of a consultant at a specialist menopause clinic.

The employer had referred her to Occupational Health but were unable to meet the request that she be reviewed by a female doctor. The employee felt embarrassed and uncomfortable discussing her symptoms and the difficulties she was experiencing in their presence and in particular she had had a work related warning for her absence levels and at appeal, four men were present to make the decision. She described how when she had advised a male manager that she was suffering from hot flushes in the office, he had said he also got hot in the office, dismissing this as a menopause symptom.

The legal issues in the claim were more about the Tribunal having not applied the right level of detail to the explanation of their findings. The case still illustrates a number of key points:

  • That the menopause and menopause related symptoms can meet the definition of disability under the Equality Act as regards a physical or mental impairment which has a substantial and long term adverse effect on somebody’s ability to carry out normal day to day activities.
  • The need for employers have their antenna looking to spot in performance cases or cases where they are managing absence levels, whether there may be an underlying issue such as the menopause and the need, where there is, to use normal processes, and ensure further advice is obtained rather than ploughing on regardless, dismissing the issue as ‘just sickness absence’.
  • When referring somebody to Occupational Health, it would be respectful, to abide with an employee’s wishes to enable them to see a female Dr if they want. A rule that they had to see whoever was available may be indirectly discriminatory and you would need to think carefully about whether you could justify such a requirement or whether it’s actually going to be seen as a separate act of harassment or victimisation if you fail to be flexible on this.
  • It’s important to train managers so that they are aware of the menopause and don’t belittle it or think it can’t affect some people. We have a one-hour training session that we are able to provide on this subject area, if you are interested.

Interestingly, the Institution of Occupational Safety and Health has, as part of its response to the Parliamentary Enquiry that is currently going on into the issue of menopause in the workplace, made a number of recommendations including that employers need to take a more holistic view and put the spotlight on effective management practices and practical support. The Parliamentary Enquiry which launched in July of this year will consider, for example, whether it would be necessary to elevate menopause as a stand-alone disability like cancer under the Equality Act so that it gets the recognition it lacks at the moment.

Anna Denton-Jones
Refreshing Law

Categories
Anna Denton-Jones Disability Discrimination Law Diversity Employment Law Employment Rights Act 1996 Equality Act 2010

The widening of disability discrimination

View of the British Houses of Parliament from the river Thames, where the Employment Rights Bill is being debated

In 2010, when the Equality Act was updated, the concept of associative discrimination was enshrined within the legislation as regards direct discrimination. This followed the famous Coleman case, where the protection had been extended to the employee not because of her disability but because she was caring for her disabled child.

Since then, in 2014, a Bulgarian case in the European Court of Justice, Chez Razpredelenie extended the concept of associative discrimination to indirect discrimination.

Reminder: direct discrimination is the idea that because of somebody’s protected characteristic they have been treated in a particular way. That direct discrimination can occur where the reason for less favourable treatment is the protected characteristic of someone with whom the victim associates.

For indirect discrimination to be established under Section 19 of the Equality Act, the Employer is applying some kind of provision criterion or practice to everybody but the Claimant argues that this puts them and those with whom they share a protected characteristic at a particular disadvantage. The employer has the opportunity to defend the case showing it to be a proportionate means to achieving a legitimate aim. Traditionally, this requires the Claimant to have the protected characteristic in question and to suffer the disadvantage personally.

In the Chez case the European Court of Justice held that the protection afforded by the Race Directive which sits behind our law applied irrespective of the ethnic origin of the person who suffered the disadvantage ie: associative indirect discrimination was possible. One of its reasons for doing so was the overarching aim of eliminating all discrimination on ethnic or racial grounds. Thus they were determining that it was sufficient for a person to show that they had suffered a particular advantage alongside a disadvantaged group.

In a recent UK decision of Follows v Nationwide Building Society, Mrs Follows was employed on a Homeworker Contract for around 7 years and the primary reason that she worked from home was to care for her disabled mother. She attended the office 2-3 days a week. She had high ratings in appraisals throughout her employment, including conducting excellent supervision of her team.

Nationwide decided to reduce the number of managers from 12 to 8 and to determine that everyone would have to be office based. The reason that they gave was a greater need for supervision due to a change in the nature of the work and feedback from junior staff who were dissatisfied with the level of supervision provided to them.

Mrs Fellows was put at risk of redundancy and the employer experienced more volunteers than the required reduction in headcount. Mrs Follows didn’t volunteer and wanted to stay in employment but continued to argue that she should retain her existing working from home arrangements. Nationwide it appears approached some of the volunteers for redundancy to request that they stay on but yet dismissed Mrs Follows by reason of redundancy.

Another male colleague, who was not disabled and who was not a carer but also worked from home received the same treatment and was also dismissed.

Mrs Follows brought claims of unfair dismissal, direct and indirect associative discrimination on the grounds of disability, indirect sex discrimination and indirect age discrimination.

The direct discrimination, the disability discrimination claim and the indirect age discrimination claims failed. She was successful in her claim for unfair dismissal, indirect associative discrimination on the grounds of her mother’s disability and indirect sex discrimination. Here we are going to focus on the disability arguments.

The reason why the direct discrimination claim failed was that the correct comparator was her male colleague who wasn’t disabled or a carer – because he received the same treatment as her and was also dismissed, she couldn’t get this claim off the ground. However, the claim of indirect disability discrimination by association was upheld. The Tribunal noted the background with the Chez case and the Tribunal were prepared to read our domestic legislation in the light of the Directive that sits behind it. The requirement to no longer work at home put Mrs Follows at a substantial disadvantage because of her association with her mother’s disability as her principal carer. Nationwide knew of the circumstances and of the disadvantage that Mrs Follows would suffer by its changing requirements.

The legitimate aim relied on by Nationwide was the need to provide more effective onsite supervision and the change in their lending work: given the evidence Mrs Follows’ supervisions were good, the Tribunal felt supervision had to be onsite was itself discriminatory and it couldn’t therefore amount to a legitimate aim. Even if it had been prepared to find that they were legitimate aims it felt that selecting Mrs Follows for redundancy and dismissing her was not proportionate as a means of achieving that legitimate aim, it wasn’t based on any actual evidence or rational judgment, rather it was based on Nationwide’s objective view of dissatisfaction expressed from junior staff together with managers view that the new arrangement would be better. They had also failed to take into account Mrs Follows’ view or her history of excellent supervisory work. It seems that the Tribunal were mindful that Mrs Follows had been attending the office for 3 days a week already and was prepared to continue doing so. It clearly influenced their attitude towards Nationwide being unreasonable.

This case widens the picture of our discrimination law and will be particularly relevant now that we are looking at how we work from home or in the office and hybrid working moving forward.

Whilst the case is at first instance, there is always the opportunity for the Employment Appeal Tribunal to provide more guidance on this subject and employers need to be careful when arguing somebody must return to the office/can’t do their job from home. They must have concrete evidence to rely on to justify their demands.

Anna Denton-Jones
Refreshing Law