Employment case law update | Autumn 2024

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

Grievances and constructive dismissal – Nelson v Renfrewshire Council

Ms Nelson was employed as a teacher by Renfrewshire Council. A dispute arose and Ms Nelson accused the head teacher of behaving aggressively towards her. Ms Nelson lodged a grievance, but it was found that there was insufficient evidence. Ms Nelson appealed but was unsuccessful. She then chose not to pursue a Stage 3 appeal, as she no longer had faith in the process. Ms Nelson resigned and claimed constructive unfair dismissal.

The employment tribunal dismissed Ms Nelson’s claim, stating that the head teacher’s behaviour alone did not breach the implied term of trust and confidence. Notably, the employment tribunal found that, as the internal processes had not been exhausted, the relationship of trust and confidence had not been damaged sufficiently seriously to find a claim of constructive unfair dismissal.

The EAT disagreed with the tribunal: even if an employee chooses not to exhaust a grievance process, this is not a relevant factor when considering if there has been a breach of the implied term of trust and confidence i.e. constructive dismissal. The only conduct that should be considered is the conduct of the employer. The employee’s failure to complete a grievance process should not be a determining factor in assessing whether there has been a breach of implied trust and confidence.

Causing or inducing discrimination – Bailey v Stonewall Equality Ltd and others

Garden Court Chambers (GCC) signed up to the Diversity Champions programme run by the LGBTQ+ charity, Stonewall. Allison Bailey, a criminal law barrister at GCC replied to GCC’s announcement of its membership of the programme, setting out her objections. She was subsequently involved in setting up the LGB Alliance, an association based on gender critical principles. Her tweets about this led to a number of internal and external complaints being made to GCC about the incompatibility of her views with trans rights. GCC publicly tweeted that it would investigate. The head of trans inclusion at Stonewall then made a complaint to GCC, which GCC upheld. Ms Bailey subsequently lodged a number of claims in the employment tribunal. She claimed that GCC had directly discriminated and victimised her on the basis of her philosophical beliefs. Ms Bailey further argued that Stonewall had instructed, caused or induced discrimination by GCC (or attempted to do so), contrary to section 111 of the Equality Act 2010.

Most of Ms Bailey’s claims were successful at tribunal level, however, the tribunal dismissed her claim against Stonewall. It found that the complaint regarding Ms Bailey was just a protest and no particular outcome from GCC was sought. Ms Bailey appealed this decision.

The EAT upheld the tribunal’s decision and concluded that Stonewall did not induce GCC to discriminate against Ms Bailey for expressing her gender-critical beliefs and it was not fair, reasonable or just to find Stonewall liable in this case. The EAT held that the word “induce” is broadly synonymous with “persuade”, and requires a person to intentionally induce another to discriminate against a third party. On the tribunal’s findings, the complaint was not made with any intention to induce the chambers to discriminate. The tribunal was therefore entitled to find that the charity neither induced the discrimination nor attempted to do so.

Harassment and comments about baldness – British Bung Manufacturing Company Ltd and another v Finn

Mr Finn worked as an electrician at British Bung Manufacturing Company Ltd (BBM), a small business, employing around 30, predominantly male, employees. In July 2019, a colleague, Mr King, called Mr Finn a “bald c*nt” and threatened him with physical violence. BBM gave Mr King a warning regarding his conduct. In March, Mr King threatened Mr Finn again, during a disagreement with his line manager and Mr Finn. Mr Finn told BBM’s managing director and company secretary that he had had enough of Mr King’s behaviour and that, if they did not fire him, “that would be it”. Mr Finn was subsequently summarily dismissed for gross misconduct in relation to another matter. He brought claims in the employment tribunal for harassment related to sex, unfair dismissal and wrongful dismissal. An employment tribunal held that Mr King’s conduct towards Mr Finn in July 2019 amounted to harassment related to sex. It was unwanted, and Mr King admitted that his intention was to threaten Mr Finn and insult him. The tribunal considered that there was a connection between the word “bald” and the protected characteristic of sex. The fact that something could potentially apply to both sexes did not mean that it could not be inherently related to sex. Although baldness affected both men and women, it was more prevalent in men. BBM appealed to the EAT.

The EAT upheld the employment tribunal’s decision. In concluding that baldness is more prevalent in men, the tribunal was not importing questions of disparate adverse impact into its reasoning. Rather, it was recognising the fact that, part of the context of the remark was that baldness was more prevalent in those sharing the employee’s sex and more likely to be directed towards them. As such, it was inherently related to sex. The comments had been made by a colleague who admitted that he had intended to threaten and insult the employee in doing so. The tribunal was entitled to find that the words used had the purpose of violating the employee’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him.