Ms Forstater subsequently lodged a claim at the Employment Tribunal alleging direct discrimination and harassment on grounds of belief.

A preliminary hearing was necessary to decide whether Ms Forstater’s views were capable of protection under the Equality Act 2010 as a philosophical belief.

The first step was to define Ms Forstater’s views. The Tribunal summed up these as a “gender-critical belief” that “sex is biological and immutable”.

Next, the five-part test from the case of Grainger plc v Nicholson was applied to determine whether Ms Forstater’s belief was capable of protection under the Equality Act. The Grainger test requires the belief to be:

The Tribunal found that all of the “Grainger criteria” applied except for the fifth criterion (“Grainger V”), therefore Ms Forstater’s views did not amount to a protected belief. Ms Forstater appealed this decision.

The EAT disagreed with the Tribunal’s decision. It held that Grainger V should only exclude “the most extreme beliefs akin to Nazism or totalitarianism or which incite hatred or violence”. The EAT acknowledged that only a very few beliefs would hit that threshold. Of Ms Forstater’s views, the EAT said:

It is a belief that might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether. Employment Appeal Tribunal

Anticipating that its judgment could be open to misinterpretation, the EAT took the unusual step of making its position on transgender issues clear. It stressed that its findings did not mean it was expressing any views on the merits of either side of the transgender debate. It said the judgment was not licence for persons to “misgender” trans persons (use non-preferred pronouns or gender) with impunity. The EAT pointed out that the Equality Act continues to prohibit harassment on grounds of gender reassignment.

In this ruling, the EAT has set a high threshold for the operation of Grainger V. It deems only the most abhorrent views or those capable of inciting others to be unworthy of protection. Some will feel that the threshold has been set far too high.

It remains to be seen whether CGD will appeal the decision to a higher court. [...]]]> http://lawandlabour.com/gender-critical-views-were-part-of-protected-belief/feed/ 0 http://lawandlabour.com/claimants-right-to-privacy-insufficent-to-prevent-online-publication-of-judgment/ http://lawandlabour.com/claimants-right-to-privacy-insufficent-to-prevent-online-publication-of-judgment/#comments Sun, 10 Feb 2019 17:29:17 +0000 http://lawandlabour.com/?p=2654 Since February 2017, it has been possible to obtain copies of Employment Tribunal judgments from an online database managed by Her Majesty’s Courts and Tribunals Service. When online judgments were first introduced, they were welcomed as a move towards open justice by adding transparency to the Tribunal process. One risk of any litigation, in addition to the concomitant time and cost, is the potential for reputational damage. Employers which fear having a public spotlight drawn to their activities are often keen to settle. However, the risk of damage to reputation applies to employees as well. The individual who has taken steps to assert their hard-earned employment rights might be labelled a troublemaker by potential employers.

This was the difficulty faced by the claimant in the case of Ameyaw v PricewaterhouseCoopers Services Ltd. Miss Ameyaw was employed by PricewaterhouseCoopers (PwC) as a senior manager. She brought four claims against PwC which ultimately failed when they got to a final hearing. The early stages of the proceedings included a January 2017 preliminary hearing that was closed to the public and a hearing concerning an application to strike out the claim, which was heard in March 2017.

The judgment for the March 2017 hearing was published online and contained unflattering depictions of Miss Ameyaw’s conduct at the January 2017 preliminary hearing. Miss Ameyaw applied to the Tribunal for an order to (1) ensure the judgment relating to the final hearing would not be published, (2) remove the March 2017 judgment from the online register, and/or (3) anonymise her name in both judgments.

The application was made, Miss Ameyaw said, because she felt online publication of the judgments was harming her ability to find new employment. The Employment Tribunal rejected Miss Ameyaw’s application, so she lodged an appeal at the Employment Appeal Tribunal (EAT).

The first question for the EAT to consider was whether the Tribunal had the power to exclude a judgment from the online register. The EAT found that it did not. The only exception permitted to the Tribunal was to exclude written reasons from a judgment if national security might be affected.

The second question was whether, if a judgment had to be published, should the Tribunal have exercised discretion and anonymised Miss Ameyaw in order to protect her right to a private life under Article 8 of the European Convention on Human Rights (ECHR).

In deciding this point, the EAT first had to consider whether Article 8 was triggered by the circumstances of the case. The EAT found it was not: Miss Ameyaw could have no reasonable expectation of privacy in respect of a public hearing.

The EAT decided to go further and consider whether, had Article 8 been engaged, Miss Ameyaw’s right to privacy would have outweighed the common law principle of open justice and the competing ECHR rights to a fair trial (Article 6) and to freedom of expression (Article 10). The EAT found the Tribunal had decided correctly that there was no basis for overruling the principle of open justice in Miss Ameyaw’s case. [...]]]> http://lawandlabour.com/claimants-right-to-privacy-insufficent-to-prevent-online-publication-of-judgment/feed/ 0 http://lawandlabour.com/xerox-employees-job-did-not-transfer-to-the-philippines/ http://lawandlabour.com/xerox-employees-job-did-not-transfer-to-the-philippines/#comments Sun, 01 Oct 2017 08:59:09 +0000 http://lawandlabour.com/?p=2520 Generally, the fact that one’s work is being transferred overseas is enough to make an employee object to the transfer. But in the case of Xerox v Zeb, the employee decided that he was willing to relocate from Wakefield in the UK to Manila in the Philippines. The question was whether he was entitled to transfer with his UK terms and conditions of employment preserved.

Mr Zeb worked in the Finance Accounting team at Xerox in Wakefield. In 2014, Xerox decided to move the services carried out by his team offshore to Manila. The transfer of services was covered by the transfer of undertakings legislation (TUPE). The affected staff were given a choice of either objecting to the transfer, in which case they would receive an enhanced redundancy package, or not objecting, in which case they would receive statutory redundancy pay only.

Mr Zeb chose not to object to the transfer. He argued that under TUPE he was entitled to transfer to Manila on his UK terms and conditions of employment. These were much more favourable than the local terms and conditions on offer for the job, therefore Xerox (who was hoping to make cost savings by moving the jobs offshore) disagreed. Xerox dismissed Mr Zeb in October 2014 and paid him statutory redundancy.

Mr Zeb complained that he had been unfairly dismissed. He argued that redundancy was not the real reason for his dismissal, but, if it was, Xerox had failed to follow the correct procedure before making him redundant. The Employment Tribunal agreed with Mr Zeb that redundancy had not been the real reason for his dismissal. It further found that his contract had been varied under TUPE and he was entitled to work in the Philippines under his UK terms and conditions. Xerox appealed the Tribunal’s decision.

The Employment Appeal Tribunal (EAT) disagreed with the Tribunal’s judgment. It found that Mr Zeb’s employment contract had not been varied because the parties had not agreed as to the proposed change to his terms. Mr Zeb wanted to changed his place of work to Manila, but retain his remaining UK terms, while Xerox would only accept his relocation to Manila if he was employed under the same terms as local staff. No agreement had been reached and the contract could not be varied unilaterally, therefore Mr Zeb’s contract had not been varied.

The EAT also found that the Tribunal had erred when considering the reason for dismissal as the judge had failed to apply the requisite test for redundancy dismissals correctly. The EAT found that the Tribunal should have focused on the reason for Mr Zeb’s job being terminated, and not why Xerox had refused to employ him offshore. A further error was the Tribunal’s failure to consider Regulation 7 of TUPE which covered transfer-related dismissals.

In conclusion, the EAT allowed Xerox’s appeal and remitted the case to a new Tribunal for reconsideration.

CASE Xerox Business Services Philippines Inc Ltd v Mr J Zeb, Employment Appeal Tribunal, 24 July 2017

One key issue under consideration by the EAT concerned the difference in the way the pay terms for the two sets of staff were set. The male depot staff had their pay terms determined following collective bargaining between Asda and the GMB trade union. However, the female staff were not heavily unionised and their pay depended instead on the geographical location of the store at which each of the women worked.

The EAT decided that the historical differences in how pay had been set was no barrier to the male staff being appropriate comparators for the female staff. Since both sets of staff were paid by Asda, it could be said that they had a single source of pay which made comparison between the jobs appropriate and the EAT agreed with this perspective:

“For all the intensity of Asda’s attack on the Judge’s reasoning and conclusions, far from considering them perverse I find them unassailable. This was an ordinary case of a large organisation delegating the setting of pay to separate internal organs…Asda or Wal-Mart could interfere at the stroke of a pen or, more likely, the click of a mouse.” Employment Appeal Tribunal

A further key issue concerned the fact that the two sets of staff did not work at the same location. The female staff were based at Asda’s stores while the male staff worked at distribution depots.

In such situations, equal pay legislation requires that the claimant and the person they are comparing themselves to for equal pay purposes have common terms and conditions of employment. In this case, although there were similarities between the terms and conditions of both sets of staff, there ware also some differences. The question to be decided was whether the differences were so significant as to prevent the jobs being compared.

The EAT disagreed with Asda’s argument that the terms could not be common because they differed in their “genesis and history” or were tied to the particular location at which the men and women worked. The EAT upheld the Tribunal’s finding that despite their differences the terms between the two sets of staff were “broadly similar” and permitted comparison for equal pay purposes.

CASE Asda Stores Ltd v Brierley and others, Employment Appeal Tribunal, 31 August 2017

Photograph: “Asda” by Flikr user Lordspudz used under Creative Commons Attribution 2.0 licence

Mr Ktorza was employed in JP Morgan’s sales team. His salary was £270,000, but bonus payments could take his remuneration into the millions. In November 2014, he was suspended for having engaged in “short-filling” – an activity in which only part of a client’s order was carried out – which was viewed as being improper. At that time, JP Morgan had just changed its practices around short-filling following scrutiny by the US authorities. Short-filling became the domain of the trading team, but sales staff were forbidden from carrying it out.  When Mr Ktorza was asked to account for his actions at a disciplinary hearing in May 2015, he stated that he was unaware that the bank had changed its practices regarding short-filling.  The bank did not accept his explanation as it felt that he should have been aware of the change of practice and in June 2015 he was dismissed with notice.

Mr Ktorza subsequently brought a claim of unfair dismissal against JP Morgan.  He succeeded in his claim after the Employment Tribunal decided that the bank had failed to show that his conduct had been culpable, which it interpreted to mean “negligent, with guilty knowledge, dishonest, or just reckless”.  The bank appealed to the EAT.

The EAT allowed the appeal after finding that the employment judge had substituted his own conclusions for those of the bank.  The EAT found that the key mistake made by the Tribunal judge had been to mix the various stages of the test for unfair dismissal from section 98 of the Employment Rights Act 1996:

“In effect, therefore, the Employment Judge has elided two different aspects of section 98: section 98(1), where it is for the Respondent to show the reason; and section 98(4), where the decision as to whether the Respondent acted reasonably in treating the reason as sufficient is one for the Employment Tribunal taking into account of all the circumstances and keeping carefully in mind that there may be a range of different ways in which an employer may act reasonably.” Employment Appeal Tribunal

The Tribunal  judge had erred by holding that for a dismissal to be fair the employee should have a “subjective awareness” that their misconduct would incur “the disapproval of employer, clients or fellow employees”. That approach was wrong at law and imported a criminal concept of dishonesty into the realm of employment law. The EAT concluded that it was not for JP Morgan to establish that Mr Ktorza knew what he was doing was wrong; the bank merely had to establish the reason for which Mr Ktorza was dismissed.  The Tribunal’s job, in deciding whether the dismissal was fair, was to consider whether the bank had acted reasonably in treating the reason as sufficient to dismiss.

The case was remitted to a different Tribunal to be reconsidered.

CASE JP Morgan Securities Plc v Mr P Ktorza, Employment Appeal [...]]]> http://lawandlabour.com/culpability-not-relevant-to-unfair-dismissal/feed/ 0