Employment case law update | Autumn 2023

Here we take a quick look at some key employment case law decisions from recent months.

Disability discrimination –  AECOM v Mallon

The Employment Appeal Tribunal (EAT) has recently upheld the decision of the Employment Tribunal (ET) that an employer discriminated against a job applicant with dyspraxia by failing to make reasonable adjustments to its online application process. The job applicant, Mr Mallon, had requested to submit his application orally via telephone rather than online, as he had dyspraxia, which made it difficult for him to complete online forms. The employer, AECOM Ltd, refused this request and insisted that he complete the online form, despite being aware of his disability.

The EAT rejected AECOM’s argument that the duty to make reasonable adjustments was not engaged because Mr Mallon had not explained his specific difficulties or provided evidence of his disability. The EAT held however that AECOM had sufficient knowledge of Mr Mallon’s disability and the disadvantage he faced in completing the online form and was under a duty to make ‘reasonable enquiries’ as to the nature of his condition.  Had they done so, they would have acquired the requisite knowledge of his condition and its impact upon him, to make the appropriate adjustments.

The EAT’s decision highlights the importance of a pro-active approach in making reasonable adjustments for disabled job applicants and employees where it is appropriate to do so, and the risks of discrimination claims if an employer fails in that regard. Employers should ensure that they have a clear and accessible policy on reasonable adjustments and that they respond to requests for adjustments promptly and sensitively. Employers should also be aware that the duty to make reasonable adjustments is not limited to actual employees, but also applies prior to the employment relationship commencing such as the recruitment process, including online applications.  The full judgement can be found here.

Philosophical belief – Corby v Advisory, Conciliation and Arbitration Service

In a significant recent decision in the Employment Tribunal (ET), it was held that the Claimant, Mr Corby, who was employed as an individual conciliator for the conciliation service ACAS, held a philosophical belief which was protected under section 10 of the Equality Act 2010.  The ET heard that Mr Corby held a viewpoint, which challenges critical race theory, which opposes the concept of structural racism as divisive, and instead prefers an approach that emphasises character over race, aligning with the ideals of Martin Luther King.

The case looked at the question of whether Mr Corby’s beliefs, which he said critique the ‘woke’ approach to racism and advocate for unity rather than segregation, could be considered a philosophical belief warranting protection under the Equality Act. The ET confirmed that they did, and the ET’s affirmation of the legitimacy of his beliefs highlights the broad scope of what may constitute a philosophical belief under the Equality Act.

This ruling reiterates the ET’s recognition of diverse viewpoints on race and discrimination and the protection of beliefs in the workplace. Employers should be mindful of the implications of this decision, ensuring that they respect and accommodate a wide range of beliefs and opinions among their employees to avoid potential discrimination claims. The case also emphasises the need for an appreciation of the nuances of the Equality Act 2010 in relation to employees’ beliefs and the workplace environment. To read the full judgement click here.

Indirect discrimination and a requirement to work flexibly – Dobson v Cumbria Partnership NHS Foundation Trust

In Dobson v Cumbria Partnership NHS Foundation Trust, the employment tribunal considered whether an NHS employer’s requirement for community nurses to work flexibly, including at weekends, was a proportionate means of achieving a legitimate aim, when weighed against the disadvantage it presented to a female nurse with two disabled children. The EAT held that a tribunal had erred in finding there was no evidence of group disadvantage to women who, because of childcare responsibilities, were less likely to be able to accommodate certain working patterns than men.

Upon remission, following the EAT’s decision that there was group disadvantage and that Ms Dobson was put at such disadvantage, the tribunal upheld its original decision that Ms Dobson had not suffered indirect discrimination or been unfairly dismissed. It found that her dismissal for refusing to work weekends was a proportionate means of achieving the Trust’s legitimate aim of providing care in the community 24/7, balancing workload among the team and reducing the cost of using more senior nurses at the weekend.

The tribunal had to consider whether the Trust could show that the provision, criterion or practice (PCP) of requiring all community nurses to work flexibly including on weekends was proportionate, balancing the extent of the disadvantage to Ms Dobson against the reasonable needs of the Trust. On the facts, the tribunal held that the PCP was proportionate and rationally connected to the Trust’s legitimate aim. Requiring Ms Dobson to work occasional weekends was the only measure open to the Trust. She was not required to fully comply with the PCP and the only alternative was to exempt her from it entirely. The tribunal commented that the principle of allowing flexible working cannot be applied too strictly and an employer’s needs as a whole must sometimes prevail. The full judgement can be found here.

Work experience placement and vicarious liability –  MXX v A Secondary School

The background to the case of MXX v A Secondary School [2023], is that in February 2014, an 18-year-old former pupil (PXM) undertook a one-week work experience placement at the respondent (the School).  By early March 2014, PXM and the appellant (MXX), a pupil at the School, were communicating on Facebook. In August 2014, PXM committed assault and battery against MXX. He was later arrested and pleaded guilty to various counts of sexual activity with a child.

In August 2022, the High Court found that the School was not vicariously liable for the assault and dismissed a personal injury claim brought by MXX against the School. MXX appealed, challenging conclusions the court had drawn when it held that the relationship between the School and PXM was not akin to employment and that PXM’s torts were not sufficiently closely connected with his relationship with the School so as to give rise to vicarious liability.

The Court of Appeal dismissed the appeal. The court held that the High Court had erred in finding that the relationship between the School and PXM was not akin to employment. However, it held that the facts did not begin to satisfy the requirements of the close connection test. The grooming, which led to the sexual offending, was not inextricably woven with PXM carrying out his work during the work experience placement. It was not until PXM left the School that any communication took place on Facebook and such communication was specifically prohibited by the School. Accordingly, the School was not vicariously liable for PXM’s torts. The full judgement can be found here.