Quick fire case law

Quick fire case law

TUPE – workers transfer!

The Central London Tribunal has potentially extended rights under TUPE by confirming that it applies to workers as well as employees.  There has been some speculation around this point for some time, but this is the first time it has been addressed by a tribunal.

Although this is only an employment tribunal decision and so not be binding on other tribunals, the decision is persuasive, and no doubt similar arguments will be rolled out in other cases until we get some clarity from the EAT. (Dewhurst v Revisecatch Ltd t/a Ecourier)

Reason for dismissal and knowledge of employer

The Supreme Court has held that an employer was liable for automatically unfair dismissal based on protected disclosures (whistleblowing) even though the dismissing officer did not know about the protected disclosures.  After the claimant had complained of breaches of Ofcom guidance, her line manager retaliated by manufacturing allegations of poor performance. Another manager subsequently dismissed her for performance, unaware of the protected disclosures.

The court held that if a person in the hierarchy of responsibility above an employee determines that the employee should be dismissed for a reason (protected disclosure) but hides this real reason behind an invented reason (poor performance) which the decision-maker then adopts in good faith, the reason for the dismissal is the hidden reason rather than the invented reason. In such cases, it is a court’s duty to penetrate through the invention rather than to allow it to infect its own determination. (Royal Mail Group v Jhuti)

Is a belief that there are two biological sexes in humans, and that it is not possible for a human being to change sex, a “philosophical belief”?

In a judgment that could, if upheld on appeal, have significant repercussions, an employment judge has held that it is not. Ms Forstater actively and publicly expressed concerns about proposed changes to the Gender Recognition Act 2004, and complaints were made that some of her tweets were “transphobic”. Her consultancy contract with CGD Europe was not renewed, and she complained of discrimination on grounds of her belief.

At a preliminary hearing, the tribunal considered the issue of “philosophical belief”. The first four aspects of the test were satisfied, namely: the belief was genuinely held; it was a belief, not merely an opinion based on the present state of information; it was a belief as to a weighty and substantial aspect of human life and behaviour; and it attained the necessary level of cogency and cohesion. However, the judge held that it involved “misgendering” and was therefore incompatible with human dignity and the fundamental rights of others and therefore failed the final limb of the test. (Forstater v CGD Europe & ors)

Dismissal for publishing personal blog posts violated employee’s right to freedom of expression

The European Court of Human Rights held that there was a violation of Article 10 of the European Convention on Human Rights (the right to freedom of expression) arising out of a bank’s dismissal of an employee for publishing personal blog posts aimed at HR professionals. Although the blog posts did not mention the bank by name, the bank took the view that the claimant’s conduct had damaged its economic interests and that he had breached its confidentiality standards.

The court considered four elements: the nature of the speech; the motives of the author; the damage caused by the speech to the employer; and the severity of the sanction imposed. It concluded that the Hungarian courts had failed to carry out the requisite balancing exercise between the individual’s right to freedom of expression and the employer’s rights to protect its legitimate business interests. (Herbai v Hungary)

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