BRIEFING
April 2025
MARC JONES 1 EDITORIAL Marjon Law
CASPAR GLYN KC 2 ELA NEWS Cloisters
CLARE FLETCHER 4 IN BRIEF Slaughter and May
LORD FAIRLEY 6 AN INTERVIEW WITH THE NEW PRESIDENT OF THE EAT
JAMES MURRAY and ROSE SMITH 9
MANIFESTATIONS OF PROTECTED PHILOSOPHICAL
Doyle Clayton Solicitors BELIEFS IN THE WORKPLACE
DAISY VAN DEN BERG 12
CLARIFICATION ON A TRIBUNAL’S DUTY TO IDENTIFY Old Square Chambers CLAIMS NOT SET OUT IN THE AGREED LIST OF ISSUES
TINA DIN and KATE MARSH 14
IMPLEMENTING THE DUTY TO PREVENT SEXUAL Irwin Mitchell LLP HARASSMENT: SIX MONTHS ON, WHAT HAVE WE LEARNED?
MARTINA MURPHY, JESSICA FRANKLIN and 17
SECTION 19A OF THE EQUALITY ACT: A NEW CLARE ARMSTRONG CHAPTER IN DISCRIMINATION LEGISLATION Outer Temple Chambers and Equality and Human Rights Commission
IDS
ELA Briefing is published by IDS, part of Thomson Reuters. The IDS legal research team has been providing analysis and information on employment law since 1966.
Tel: 0345 600 9355 www.incomesdata.co.uk
Follow us on Twitter: @IDS_team
The views of the authors in ELA Briefing do not necessarily represent those of the ELA editorial board.
The Employment Lawyers Association PO Box 1609, HIGH WYCOMBE HP11 9NG Tel 01895 256972 email: ela@elaweb.org.uk www.elaweb.org.uk
ISSN: 1474 7073
© Employment Lawyers Association
All rights reserved: no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the permission of the Employment Lawyers Association.
Original design concept by Teresa Monachino www.studiomonachino.co.uk
Editor MARC JONES Marjon Law marc@marjonlaw.co.uk
Editorial committee
NATASHA ADOM GQILittler
KATHLEEN BADA Dentons UK and Middle East LLP
CLARE FLETCHER Slaughter and May
JO-ANNE GRAHAM / NICOLA TAYLOR Government Legal Department
CLIVE HOWARD Keystone Law
DOUGLAS LEACH Guildhall Chambers
RICHARD LINSKELL Gunnercooke LLP
CRAIG LUDLOW 3PB
LOUISE MASON Linklaters LLP
SARA MEYER DAC Beachcroft
NIKITA SONECHA Browne Jacobson
Advertising CYNTHIA CLERK Cynthiac@elaweb.org.uk
a word from the editor
There has been a lot reported in the media about the new Netflix series, Adolescence. This has extended to the House of Commons where Sir Kier Starmer answered a question on it during PMQs, revealing that he and his family had watched the drama together. The creators of Adolescence have called for it to be shown in schools. However, I have watched the series and, in my view, Adolescence focuses on the impact on the parents, and showing it in schools would be missing the point and could even glorify the beliefs of the boy at the centre of the story. I won’t say much more, in case you have not seen it.
‘April offers many health and wellbeing awareness initiatives, which busy lawyers should be mindful of’
A useful reminder was published in the Scotsman on illegal working. The Home Office increased its enforcement action by 74% against businesses in January 2025; most were small businesses employing less than 50 people. Civil penalties increased last year from £15,000 to £45,000 per worker for a first breach, but according to the Home Office many breaches are due to honest mistakes since the UK left the European Union, as only British and Irish citizens have an automatic right to work in the UK. Businesses can take steps by completing the online ‘share code’ system of ‘right to work’ checks, which, if they are carried out in line with Home Office requirements, provide a full defence against a civil penalty. April offers many health and wellbeing awareness initiatives, which busy lawyers should be mindful of: Stress Awareness Month, Active for April, Bowel Cancer Awareness Month, IBS Awareness Month, Parkinson’s Awareness Month and Move for More Month. The first day of April is Walk to Work Day, 7 April is World Health Day and 28 April is World Day for Safety and Health at Work. Don’t suffer in silence! Advice can be obtained from the Health and Safety Executive (www.hse.gov.uk), Mind (www.mind.org.uk), the Stress Management Society (www.stress.org.uk) and Stressbusting (www.stressbusting.co.uk).
A reminder to readers that the employment law statutory rates and limits increase in April:
• a week’s pay for the purpose of calculating, among other things, statutory redundancy payments increases from £700 to £719;
• the limit for a basic award and a statutory redundancy payment rises from £21,000 to £21,570;
• the limit on the compensatory award increases from £115,115 to £118,223;
• statutory maternity pay (after the first six weeks), statutory adoption pay (after the first six weeks), statutory paternity pay, statutory shared parental pay and statutory parental bereavement pay increases from £184.03 to £187.18 per week; and
• statutory sick pay rises from £116.75 to £118.75 per week.
The Presidents of the Employment Tribunals in England & Wales and Scotland are due to conduct the annual re-evaluation of the Vento bands and these are likely to increase.
If you would like an article to be considered by the editorial committee, please send this to me by 09.00 on 5 May to ELABriefingEditor@elaweb.org.uk
I sign off this month with a quote from New York State psychologist Dr Sanam Hafeez: ‘It’s important to note that stress is a natural part of life and is part of being human. Sometimes, it can help motivate you to get something done. Other times, it can take a toll on your mental and physical health. In other words, stress is a normal human reaction and key for survival, but too much stress can be detrimental.’
MARC JONES, Marjon Law
ela news
Employment tribunals are not coping –
Outstanding cases have increased by more than a quarter compared with the same period in 2023/24. By the time you read this, the updated figures from March 2025 should have been published. However, based on figures until September 2024:
• there has been a 19% increase in single cases to the tribunal;
• an 8% decrease in single cases being dealt with;
• single open caseloads are up by 26% – they now stand at 42,000;
‘the new headline rights risk being no more than pretty window dressing’
• multiple cases being issued were down by 33% and disposals by 3%, but those open multiples increased by 4% so that there are now 6,700 lead cases; and
• 461,000 people are waiting for employment justice.
That experience is felt by many of our members who, despite the hard work of both employment judges and staff, suffer from delays and administrative difficulties. We know that the Government’s new employment rights, which will be introduced in 2026, will inevitably lead to many more cases.
Unless tribunals are properly resourced then the issue will not be addressed. ELA will be trying to highlight the factors contributing to this issue in March. We believe that unless the Government decides to appoint more employment judges, pay-part time employment judges to do more cases and find other ways to deal with cases, then the new headline rights risk being no more than pretty window dressing, paying lip service to Labour’s commitment to working rights.
Our concern is that if justice for workers takes two years or more to achieve, then the rights for hard-pressed working families become illusory. Holiday pay, national minimum wage, unfair dismissal and maternity rights risk becoming a dead letter if the horizon for the vindication of those rights is measured in years, rather than months. What succour can a delayed hearing offer a worker if they are thrown out of work for years before they obtain employment justice?
So too, the many businesses that obey and follow the law will see the cowboy businesses, emboldened by years of delay to deny rights that few workers could have the patience to enforce. The level playing field of competition eroded by delays.
The facts, even to September 2024, reveal a stark environment that requires the desert of delay to be navigated before the promised land of enforcement.
There are 138 full-time equivalent employment judges in England and Wales, and recruitment has consistently failed to meet its targets. In the last recruitment phase, only 16 out of 50 judges were recruited. The next recruitment exercise hopes to recruit a further 25% judges with a target of 36. ELA is playing a full part in promoting that recruitment, which we hope may bring relief to the employment justice system.
Furthermore, there is also a pool of 370 fee-paid judges who could readily be asked to deal with more cases but it seems that addressing the employment justice backlog, although the freight train of the Employment Rights Bill is coming down the track, is not being prioritised. The Government seems content to fund a continuing backlog rather than address it.
The Fair Work Agency could be a mechanism to kick start employment enforcement. For example, HMRC has had success with its enforcement of the National Minimum Wage – removing simple wages claims and holiday pay claims from immediate tribunal enforcement and putting them into the hands of a regulator may be a good way forwards.
It appears that in the next funding round the Cinderella department that is the Ministry of Justice will simply be treated less well again and suffer further funding cuts. We make no comment on political decisions, but if employment rights are considered by Parliament to be important that they should be reformed and strengthened then a failure to allow for their efficient enforcement is no more than virtue signalling.
Recent activities
• Training Committee: webinars included: ‘Employment in Hospitality’, 4 March; and ‘TUPE issues in commercial property transactions’, 19 March. Webinars regarding a selection exercise to recruit salaried employment judges were held on 6 March.
• The In-house Committee organised a conference on 27 March in London.
• The regions: a Birmingham discussion forum and quiz night was organised on 19 March, the Solent Training Day took place on 21 March in Southampton and a social lunch was held in Sheffield on 27 March.
Looking ahead
• Training Committee: the ELA Annual Conference will be held in London on 15 May 2025.
• The Pastoral Committee has organised a webinar ‘Vicarious Trauma’ on 2 April.
• The regions: in Leeds, ‘An Introduction to Advocacy for Junior Employment Lawyers’ will take place on 8 May. A social lunch is planned in Winchester on 19 June.
CASPAR GLYN KC, Cloisters
Race and disability pay gap reporting
With so much legislative attention on the Employment Rights Bill, you would be forgiven for forgetting that last year’s King’s Speech promised not one, but two new employment bills. Now it seems the Equality (Race and Disability) Bill (E(RD)B) is about to enter the fray. On 18 March, the Government published a consultation on how to introduce mandatory ethnicity and disability pay reporting for large employers (those with 250 or more employees). Responses to the consultation will help to shape proposals which will be included in the E(RD)B.
The consultation proposes using the existing gender pay gap reporting framework as far as possible.
‘a key concern with race and disability pay gap reporting is data collection and classification’
Employers would be required to report the same set of six pay gap measures, using the same reporting dates and mechanisms, and be subject to the same enforcement regime. However, there will be some new things for employers to get to grips with. They will need to report on the overall breakdown of their workforce by ethnicity and disability; and the percentage of employees who did not disclose their personal data on their ethnicity and disability.
A key concern with race and disability pay gap reporting is data collection and classification. The Government proposes that employers should collect ethnicity data using the detailed ethnicity classifications in the Government Statistical Service (GSS) ethnicity harmonised standard, and that ‘disability’ should be judged using the Equality Act 2010 definition. However, to protect the privacy of employees and to help produce statistically robust data, there should be a minimum of 10 employees in any ethnic or disability group that is being analysed.
To calculate the pay gaps, the consultation proposes that only a binary comparison should be mandatory, between, for example, white employees and all other ethnicities combined, and between disabled employees with non-disabled employees. Employers who are able to report more sophisticated comparisons between ethnic or disability groups are, however, encouraged to do so.
The consultation closes on 10 June and ELA’s Legislative and Policy Committee will be preparing a response. The Government has also committed to launching a separate call for evidence seeking views on making the right to make equal pay effective for ethnic minority and disabled people, and other areas of equality law.
The Employment Rights Bill enters the Lords
The Employment Rights Bill passed in the House of Commons on 12 March and has now moved on to the House of Lords, where it had its first reading on 14 March. The Bill has been republished with all the Commons amendments incorporated. These included:
• collective redundancies: retaining the ‘at one establishment’ criterion and introducing a new alternative threshold (to be prescribed by regulations); plus increasing the maximum protective award from 90 to 180 days’ pay;
• zero hours workers: extending these provisions to agency workers, as envisaged in the Government’s response to its recent consultation on these provisions;
• Fair Work Agency: introducing new powers, including the ability to issue notices of underpayment for sums such as the minimum wage or statutory sick pay, bringing proceedings against employers in the employment tribunal on behalf of workers and recovering costs of enforcement action from defaulting employers;
• trade unions: implementing the changes outlined in the Government’s response to its recent consultation, including extending the new right of access to digital access (subject to secondary legislation and a further consultation) and strengthening protections against unfair practices in a recognition context;
• statutory sick pay: low earners will become entitled to SSP, at a rate of 80% of normal weekly earnings or the statutory flat rate of SSP, whichever is lower, as set out in the Government’s response to its consultation;
• holiday records: introducing a new duty on employers to keep records of workers’ holiday and holiday pay, for at least six years; and
• umbrella companies: allowing for regulations to bring umbrella companies within scope of the same kind of regulation as other employment agencies and businesses, and within the remit of the new Fair Work Agency.
The Bill was scheduled for its second reading in the House of Lords on 27 March. Royal Assent is anticipated in July, and while some of the Bill’s provisions may come into force in the autumn, most will not be implemented until 2026. ELA continues to closely monitor the progress of the Bill and engage with the Government on its provisions and implementation.
Regulators step back from D&I but forward on NFM
On 12 March, the Financial Conduct Authority (FCA) issued an update on its proposals for diversity and inclusion (D&I) and non-financial misconduct (NFM) (see ELA Briefing, February 2024).
On D&I, in light of feedback received, expected legislative developments and to avoid additional burdens on firms, the FCA and Prudential Regulation Authority (PRA) ‘have no plans to take the work further’. The FCA and PRA letters to the Treasury Committee also say that the regulators will review the impact on gender pay inequality of removing the bonus cap, and that this work will likely begin in the 2026/27 financial year.
On NFM, the FCA wants to ensure their approach is proportionate and aligned with planned legislation, so they are ‘taking some further time to get this right’ and will set out next steps by the end of June 2025.
Boardroom diversity update
A number of recent reports have revealed something of a slowdown in progress to improve to diversity of UK company boards. The latest FTSE Women Leaders Review revealed that 44.7% of board seats at FTSE 100 companies were held by women (as at December 2024). Less progress has been made in executive positions, which stand at just 32.7%. Progress is slower still in the 50 largest private companies, where women make up only 30.5% of the boards. The FTSE 350 are also expected to miss their target to have women in 40% of top executive roles by the end of 2025 – the figure currently stands at 35.3%.
The Parker Review set a separate target date for FTSE 250 companies to have at least one ethnic minority director on their board by 31 December 2024. An update report reveals that only 82% of companies met that target. Ethnic minority executives comprise between 9% and 11% of the total number of UK-based senior managers across the FTSE 100, FTSE 250 and in-scope private companies.
Meanwhile, the EU Gender Balance on Corporate Boards Directive is currently being transposed across Europe. The Directive requires listed companies with 250+ employees (and with a registered office in a Member State and trading in one or more Member States) to ensure that members of the underrepresented sex hold at least 40% of their non-executive director positions, and 33% of their director positions overall, by 30 June 2026. Member States must ensure that companies take measures if they do not meet the targets, including giving priority to a candidate of the underrepresented sex where they are equally qualified, except in cases where other reasons carry enough legal weight to tip the balance, for example where a decision is made in the pursuit of other diversity policies.
CLARE FLETCHER, Slaughter and May
An interview with the new President of the EAT
LORD FAIRLEY
Lord Fairley became the new President of the EAT on 1 February this year. He also becomes one of our three honorary Presidents, alongside the Presidents of the Scottish and English and Wales Tribunals. Below, he chats with ELA Chair Caspar Glyn KC.
Caspar Glyn: Hello Lord Fairley, congratulations on becoming the President of the Employment Tribunal across Scotland, England and Wales. Thank you so much for agreeing to do this interview. I understand that in the handover you had the chance to work closely with Mrs Justice Eady. How do you think she has left the EAT?
Lord Fairley: In a very good place. She has been a superb President and her work-rate is astonishing. She will be a very hard act to follow.
Caspar Glyn: For those of us who do not know, would you mind setting out your career to date, and particularly, your work as an employment specialist?
Lord Fairley: I first became involved in employment work in the early 1990s as a newly qualified solicitor appearing in the Industrial Tribunals. I did that regularly for around six years. When I was called to the Scottish Bar in 1999, I found that the benefit of that previous experience was that solicitors I didn’t know started instructing me in employment cases. In 2010, I was appointed as a fee-paid employment judge in Newcastle, and shortly after, I became a full-time employment judge in Scotland. I missed the advocacy, so I returned to the Bar in 2011 and took silk in 2012. After eight years as a QC, I was appointed to the Court of Session bench in 2020 and since then have combined working in the EAT with sittings in the criminal court (confusingly known as ‘the High Court of Justiciary’) and civil work in the Court of Session.
Caspar Glyn: I didn’t know that you had sat both as an employment judge north and south of the border. As the first President of the EAT who has been an employment judge, do you think that gives you any insight as an appellate judge?
Lord Fairley: Yes, absolutely. The main one is that I am acutely aware of the challenges of case-managing difficult and complex cases at first instance, often with unrepresented parties. I understand the skill and patience that is required of employment judges. I also recognise that it is never pleasant being appealed and even less pleasant being overturned. A wise senior colleague in the Court of Session once said to me: ‘It doesn’t mean that you were wrong; it just means someone else took a different view.’ It’s also true that cases will often take on a different emphasis at the appeal stage, which may not have been as obvious below.
Caspar Glyn: You have been sitting in the EAT in Edinburgh for four years. Are there any differences that strike you when sitting in London?
Lord Fairley: Not really. Because the EAT is a jurisdiction throughout England, Wales and Scotland, any differences tend to be relatively minor. Over the last 20 years, the practice in Scotland has tended to draw closer to what happens in London. When I first appeared in the Edinburgh EAT in the 1990s, for example, skeleton arguments were hardly ever produced. Now, that is standard.
‘it’s surprising how much judicial joy can be generated by a short core bundle, an agreed list of disputed issues, a clear agreed chronology and focused skeletons’
Caspar Glyn: South of the border we are used to our Presidents being a Mr, Ms or Mrs Justice and I can see that you are styled as a ‘Lord’. Why is that?
Lord Fairley: In Scotland, the senior judiciary are all known as Senators of the College of Justice. That’s equivalent to a judge of the High Court in England & Wales. All Senators are given the honorary title of ‘Lord’ or ‘Lady’. People sometimes ask if we get to sit in the House of Lords. We don’t. Under the Employment Tribunals Act 1996, a Senator of the College of Justice can be the President of the EAT.
Caspar Glyn: I assume that we can still call you Judge?
Lord Fairley: Of course. That’s the preferred naming convention in the EAT. I’ve been called lots of other things though …
Caspar Glyn: Do you think that there are any lessons that English, Welsh and Northern Irish practitioners could learn from the Scottish tribunals?
Lord Fairley: I think that’s a two-way process. It’s always useful to see how others do things. One example is the use of witness statements as a substitute for evidence in chief. Historically, there has always been a degree of resistance to that in Scotland where the tradition has historically been for oral evidence in chief. I can see both sides of that debate. It’s ultimately a question of what is suitable in the particular case. Often there isn’t much factual dispute on anything relevant. Where there is, however, it can actually be more helpful to the judge to hear the evidence in chief directly from the witness.
Caspar Glyn: What do you think that we, as practitioners, could improve in the way that we interact with the EAT?
Lord Fairley: In any appeal, the most helpful form of interaction is usually between the parties’ representatives. It’s surprising how much judicial joy can be generated by a short core bundle, an agreed list of disputed issues, a clear agreed chronology and focused skeletons. I should probably get out more!
Caspar Glyn: Is there any advice that you could give us, as advocates, who may appear before you for the first time?
Lord Fairley: Know the papers. If you have a really good point, start with that. Anticipate the arguments against you and deal with those. Remember that the core question is always: ‘why should I win?’. Although that’s a legal question, it’s usually also driven by logic and common sense.
Caspar Glyn: What do you consider the greatest challenges ahead of you as the President of the EAT?
Lord Fairley: The number of appeals presented to the EAT continues to rise year on year. That is likely to continue, especially with the anticipated legislative changes. Inevitably, however, resources are limited. The EAT is very fortunate to have the support of the President of the King’s Bench Division and also the SPJ, both of whom allow their salaried judges to sit in the EAT. We also rely heavily upon our fee-paid judges. Without that support, our backlogs would increase and final disposal of cases would be significantly delayed. My biggest challenge will be keeping that workload under review and control.
Caspar Glyn: One of the many ways in which your predecessor, Mrs Justice Eady, addressed diversity was, following the senior English and Welsh Judiciary in setting out that where it was possible, that it is desirable for junior counsel, and particularly women junior counsel, to be afforded an opportunity to address the Appeal Tribunal. Is this a practice that you too, would encourage?
Lord Fairley: I would encourage a practice of all junior lawyers being given speaking roles. My experience in Scotland is that there are fewer opportunities for oral advocacy than there used to be, particularly for more recently qualified lawyers. That experience is vital, however, if they are to develop their skills and court-craft. Speaking roles for juniors is now strongly encouraged in the UK Supreme Court and there is no reason for the EAT to be any different.
An interview with the new President of the EAT
An interview with the new President of the EAT
‘speaking roles for juniors is now strongly encouraged in the UK Supreme Court and there is no reason for the EAT to be any different’
Caspar Glyn: Many lawyers sign up as Employment Law Appeal Advice Scheme (ELAAS) advocates to help litigants in person at the application for oral permission to appeal at the rule 3(10) stage? Is this something that the EAT judges value?
Lord Fairley: Very much so. There is a similar programme in Scotland (SELAAS). The focus that it brings at rule 3(10) hearings is invaluable. As an aside, it’s also a great opportunity for more junior lawyers to get advocacy experience and for those with more experience to get some variety in their practice. I once picked up a pro bono case as a silk. After the rule 3(10) hearing, the appellant asked me stay in the case for the full hearing. I did, and the case ended up being reported in the ICR.
Caspar Glyn: I see that the Employment Rights Bill has increased in size by about 25% since it was first laid before Parliament. We are all expecting an increase in workload in the tribunals and no doubt the Appeal Tribunal when the Bill becomes an Act. Do you think that the EAT will be able to cope?
Lord Fairley: Yes, I hope so, but it will be challenging. At present we only have three full-time judges in the EAT. We will have to continue to rely upon the goodwill of other leadership judges who lend us judges from within their cohort, and on the dedication of our fee-paid judges. As with all things, much will come down to funding.
Caspar Glyn: What’s your favourite employment law appellate case?
Lord Fairley: Any one where my judgment wasn’t overturned!
Caspar Glyn: Away from law and the serious business of judging, what do you do to relax?
Lord Fairley: About 35 years ago, I had to decide between law and trying to make a career as an orchestral clarinettist. I eventually chose law, but I still play in various groups for fun and relaxation. I have tentatively floated the idea of an EAT music group. That can be my project while I am here in London for the next three years. One of our judges suggested it should be called ‘The Band of Reasonable Responses’, but I am also drawn to ‘The Polkeys’. Sport-wise, I’m a real tennis groupie, so the proximity to Wimbledon is something I’m looking forward to in the summer.
Manifestations of protected philosophical beliefs in the workplace
The Court of Appeal has recently handed down judgment in the much-anticipated case of Higgs on the issue of whether Farmor’s School’s dismissal of Ms Higgs for making several offensive Facebook posts on a private account was lawful and the interplay between the Equality Act 2010 and Convention rights.
The key facts
Ms Higgs, on her private Facebook page (which was under a surname she did not use at work and made no reference to her employer), made a series of posts/reposts about gender, sex education and same-sex marriage. Her employer, having received a third-party complaint that her posts were (among other things) ‘homophobic’, investigated, and summarily dismissed her for gross misconduct.
Ms Higgs claimed that her dismissal was direct discrimination contrary to the Equality Act 2010 (EqA) because of her protected beliefs (which were broadly analogous with gender critical beliefs). The employment tribunal accepted that her beliefs were protected but found that she had not been dismissed because of them. Instead, it accepted that the school had dismissed her because, due to the ‘florid and provocative language’ used in her Facebook posts, she might reasonably be perceived as holding homophobic and transphobic beliefs which would not qualify for protection.
The EAT upheld Ms Higgs’ appeal but noted that the employment tribunal had not considered whether her dismissal was because of, or related to, manifestations of her belief. Its decision was that the claim should be remitted to the tribunal to consider this point, and whether the school’s actions in dismissing her were unlawful.
The Court of Appeal decision
The ground of appeal at the heart of the Court of Appeal decision was that the EAT should not have remitted the case back to the employment tribunal, because it was clear that the school had acted unlawfully, and this finding could be made without remittance to the tribunal. The Court of Appeal agreed and allowed her appeal; it found that her dismissal was unlawful.
The basis for this decision was an earlier Court of Appeal judgment in Page. This held that: ‘adverse treatment in response to an employee’s manifestation of their belief was not to be treated as having occurred ‘because of’ that manifestation if it constituted an objectively justifiable response to something ‘objectionable’ in the way in which the belief was manifested.’ As such, if there was a feature of the employee’s conduct to which the employer could legitimately object, then the tribunal/court will assess whether the employer’s response to that feature was ‘proportionate’. It is for the employer to show that the response was ‘proportionate’, based on an objective reading of what was said (ie, not based on subjective stereotyping by the employer or others).
The question of what is ‘proportionate’ must be determined with reference to the Convention case law around Article 9 (freedom of belief) and Article 10 (freedom of expression). As the Court of Appeal recognised,
JAMES MURRAY and ROSE SMITH, Doyle Clayton Solicitors
Manifestations of protected philosophical beliefs in the workplace
‘there was no evidence that the reputation of the school had been damaged’
the Convention provides significant levels of protection for expression, even for speech which offends, shocks or disturbs: ‘freedom only to speak inoffensively is not worth having’ (Redmond-Bate).
In applying this to Ms Higgs’ dismissal, the Court of Appeal concluded that it was not even arguable that her dismissal was proportionate, despite how it characterised her speech as, variously, ‘offensive’, ‘derogatory sneers’, ‘stupidly rhetorical exaggeration’, ‘florid’ and ‘provocative’.
It noted several factors in making this decision:
• her posts were not grossly or gratuitously offensive. They were not as serious as, for example, the conduct in the case of Lilliendahl where the individual described homosexual activity in crude and highly offensive language and referred to it as disgusting;
• the posts were largely re-posts and not Ms Higgs’ own words;
• there was no evidence that the reputation of the school had been damaged. The posts were made on a personal account, in her maiden name (which she did not use at work) and contained no reference to her employer, Farmor’s School;
• there was no evidence that her work at Farmor’s School would be affected by the views expressed in the posts, and she had an otherwise exemplary work record and she did not exhibit discriminatory attitudes towards pupils; and
• it did not matter that she had not shown any insight into the offensiveness of her posts when questioned along those lines during the disciplinary process due to her strongly held beliefs. No clear guidance was given as to whether one or any of these factors was determinative or would have changed the decision if absent. Indeed, the point is that one cannot generally establish any definitive rules or set of factors to be assessed when undertaking a proportionality assessment: it will be a case of fact and degree, and every case will turn on its merits.
It should be noted that the above approach only applies in a true manifestation case. As the right to hold a belief is absolute under Article 9 of the Convention, if an employer is motivated to take action merely by the fact that the employee holds or has expressed the belief, then the action will be unlawful, and the test of proportionality will not be applied. An employer must show that they are only motivated by something objectionable in the way in which the belief was expressed, determined objectively, in order to then be able to apply the proportionality assessment.
Guidance on proportionality
The Court of Appeal also gave some non-binding guidance on assessing proportionality as follows:
• where an employer relies upon its reputation, it may be relevant to consider whether:
• the matters commented upon had anything to do with the employer’s business;
• the comments were expressed in egregiously offensive or insulting language, the threshold for which is high; and/or
• the comments were clearly expressed to be personal or whether they could be imputed to the employer.
• whether there are any less severe measures that would be a proportionate response; and
• where an employer relies upon unlawful stereotyping of the beliefs (for example, that gender critical views are transphobic or views on same-sex marriage are homophobic) either on its own part or on reliance of such views by third parties, then there is a real risk that this will be discriminatory without the need for a separate proportionality assessment.
This will be useful for courts/tribunals to consider in future cases involving the proportionality of the restriction of Convention rights in any employment law context where they are engaged, including Article 10 in unfair dismissal cases.
Casting doubt on separability cases
The decision in Higgs casts doubt on another decision of Eady J in Omooba. In this case, it was held that there was no discrimination because the reason for the impugned treatment was neither the belief nor the
Manifestations of protected philosophical beliefs in the workplace
‘the Court of Appeal has given robust guidance on proportionality and how difficult it is to justify impugning a manifestation of a protected belief’
objectionable manifestation, but a truly separable feature (ie, potential business harm arising from a social media storm). This approach was adopted from whistleblowing cases concerning the offensive or abusive manner in which the protected disclosure was made.
However, the Court of Appeal clarified that Page imports a test of objective justification into protected belief and manifestation cases while not doing so for other cases, such as whistleblowing. This would imply that Omooba was wrongly decided and that employers cannot seek to rely upon being able to identify a ‘truly separate feature’; at best, they will be able to identify an objectional element to a manifestation and will be able to undertake a proportionality analysis in respect of any proposed reaction to this.
Conclusion
The Court of Appeal’s judgment is a particularly clear statement of the legal analytical framework through which court/tribunals must decide such challenging cases and, by extension, how employers should approach, investigate and handle such issues. While such assessments are particularly fact sensitive, the comments in the judgment set out here will aid tribunals and employers alike in that difficult undertaking, and the judgment as a whole is an important reference for any tribunal or employer assessing such issues.
The effect of the judgment is such that an employer’s scope for responding to and managing manifestation cases has been limited in two key ways. Not only is the Omooba approach seemingly off the cards, but the Court of Appeal has given robust guidance on proportionality and how difficult it is to justify impugning a manifestation of a protected belief.
None of this is easy, even for seasoned practitioners. One has sympathy for non-lawyers at private employers who are now seemingly expected to have close reference to Convention principles when investigating complaints involving protected beliefs. Given the often highly contentious nature of content or comments which are the subject of complaints, it is relatively easy to fall into one of many traps which Higgs has highlighted, particularly around stereotyping. Even a stereotype which has a (perhaps misguided) intention of protecting other protected characteristics must be examined. In Higgs, for example, a reliance on the perception of Ms Higgs’ views as ‘homophobic’ created significant problems for the school.
Overall, it seems increasingly unavoidable that lay clients are going to need substantial support from their lawyers in such cases, and perhaps even specialist third-party investigation to take the heat – and legal risk –out of highly contentious complaints.
KEY:
Convention European Convention on Human Rights
EqA Equality Act 2010
Higgs Higgs v Farmor’s School [2025] EWCA Civ 109
Page Page v NHS Trust Development Authority [2021] EWCA Civ 255
Redmond-Bate Redmond-Bate v Director of Public Prosecutions [1999] Crim LR 998
Lilliendahl Lilliendahl v Iceland (29297/18)
Omooba Omooba v (1) Michael Garrett Associates Ltd (t/a Global Artists) and (2) Leicester Theatre Trust Ltd [2024] EAT 30
Clarification on a tribunal’s duty to identify claims not set out in the agreed list of issues
DAISY VAN DEN BERG, Old Square Chambers
The Court of Appeal handed down judgment on 27 February in Moustache. The court held that an employment tribunal’s failure to include a claim within an agreed list of issues will only amount to an error of law if it is perverse.
Background facts
The claimant brought claims for discrimination arising from her disability under s.15 Equality Act 2010 (EqA 2010), and unfair dismissal under ss.94 and 98 Employment Rights Act 1996 (ERA 1996). The list of issues was agreed between the parties in advance of the final hearing – the respondent’s solicitor had sent a draft list of issues to the claimant (who was self-represented) and the claimant had confirmed her agreement with it. That list did not include a claim for discriminatory dismissal; it did not include a claim that the decision to dismiss was itself an act of discrimination.
The claimant appealed to the EAT, arguing that the tribunal should have amended the list of issues at the final hearing to include a claim for discriminatory dismissal. The EAT agreed with her.
Decision of the Court of Appeal
The Trust appealed to the Court of Appeal. The court provided the following guidance on the nature and scope of the employment tribunal’s duty to identify and determine issues in proceedings where the parties have agreed a list of issues:
• proceedings in the employment tribunal are adversarial. The primary onus lies on the parties to identify which claims they wish to bring and which answers they wish to advance;
• issues raised by the parties are those which emerge clearly from an objective analysis of their statements of case. Identification of the issues does not involve reference to other documents which do not have the status of pleadings and come later;
• where a party seeks the employment tribunal’s ruling on an issue that emerges from an objective analysis of the statements of case (and falls within its jurisdiction), the tribunal has a duty to address that issue. This is the core function of the tribunal;
• however, the employment tribunal’s role is arbitral not inquisitorial or investigative. It must perform its functions impartially, fairly and justly, in accordance with the overriding objective, the law, and the evidence in the case. The tribunal has no general duty to take pro-active steps to prompt some expansion or modification of the case advanced by a party where that might be to their advantage;
• the starting point is to consider what claims emerge from an objective analysis of the statements of case. A failure by the tribunal to identify and address those claims is liable to amount to a breach of its core duty and hence, an error of law. A failure to identify and determine a claim that does not emerge from such an analysis can amount to an error of law but only in rare or exceptional circumstances; and
• the rare and exceptional circumstances are those identified in Drysdale – those are circumstances in which a tribunal has breached its fundamental duty of procedural fairness to a litigant in that it has acted in such a way which no reasonable tribunal, properly directing itself, would have acted.
Clarification on a tribunal’s duty to identify claims not set out in the agreed list of issues
‘Moustache makes clear that the tribunal will be under a duty to consider what claims emerge from an objective analysis of the statements of a case’
The court determined that, in the present case, a claim for discriminatory dismissal did not emerge from an objective analysis of the ET1. That being so, the only basis on which the EAT could properly have allowed the employee’s appeal was that this was one of those exceptional cases set out in Drysdale. Put another way, the only remaining question was whether the employment tribunal’s conclusion – that the issues for determination were those identified in the agreed list of issues and no others – was a perverse conclusion, which no reasonable tribunal could have reached.
The appeal by the Trust was allowed.
Considerations
Preliminary hearings often present an opportunity for the employment judge to go through the claim with an unrepresented claimant and determine precisely which claims have and have not been brought. With any luck, this will result in an agreed list of issues on which the parties can rely in preparation for the final hearing.
Moustache makes clear that the tribunal will be under a duty to consider what claims emerge from an objective analysis of the statements of a case. That should not require the judge to engage in an elaborate or complex interpretative exercise. Warby LJ, who gave the only reasoned judgment, praised the attempts by counsel for the claimant to ‘tease out’ the ingredients of a claim for discriminatory dismissal, but commented that the very fact that the ingredients had been teased out was an indication that the claim was not obviously discernible from the ET1.
Properly determining which claims have been brought may require exploring the scope of a party’s case by way of clarification, and that may be particularly appropriate where a party is unrepresented. However, tribunals should not elicit claims by entering into the adversarial arena, adopting an inquisitorial approach and prompting an application to amend the claim. If a statement of case does not plainly articulate a claim, the tribunal should not set about coaxing the claim out of the claimant. Far from being under a duty to do this, the tribunal’s duty of impartiality obliges it not to embark on any such process. Respondents may – if such coaxing transpires –consider alerting the judge to their duties, and this recent appellate authority in particular.
The judge at the EAT stage suggested that it ‘may have been appropriate’ for the employer to alert the tribunal to the possibility that the employee might have a claim for discriminatory dismissal. Warby LJ commented that it would take a good deal of persuading that a litigant owes a duty to assist its adversary or the tribunal in this way. It is therefore very unlikely that a respondent will be under a duty to identify a claim which has not been identified by the judge, unless, perhaps, that claim is shouting out from the page.
Representatives will be aware that at the start of a final hearing at which any party is unrepresented, the tribunal is under a duty to consider whether the list of issues properly reflects the issues in dispute, and, if not, consider whether an amendment is necessary in the interests of justice. It is not in the respondent’s interest to be faced with an amendment application at such a late stage, after the claim, at significant time and expense, has been fully prepared. It may therefore be in everyone’s interest for the respondent to point out obvious claims at the case management stage.
Warby LJ also said that the EAT had erred in concluding that the fact that the list of issues had been agreed between the parties was a factor of no weight. Where an unrepresented claimant does assert at the start of a final hearing that a claim has been omitted from the ET1, respondents can therefore point to the fact that the list of issues has been agreed between the parties as a factor weighing against amending the list issues.
KEY:
Nicole
v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185
EqA 2010 Equality Act 2010
ERA 1996 Employment Rights Act 1996 Drysdale Drysdale v Department of Transport [2014] EWCA Civ 1083
Moustache
Moustache
Under
Implementing the duty to prevent sexual harassment: six months on, what have we learned?
s.26 of the Equality Act 2010, a person harasses
another if they engage in unwanted conduct of a sexual nature, and that conduct has the purpose
or effect
of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim. A new duty on employers to prevent sexual harassment in the workplace came into force last October.
The Worker Protection (Amendment of Equality Act 2010) Act 2023 requires employers to take ‘reasonable steps’ to prevent sexual harassment of their employees, meaning that they now have a duty to anticipate when sexual harassment may occur and take reasonable steps to prevent it. Furthermore, if sexual harassment has taken place, an employer should take action to stop it from happening again. Employers will only be able to avoid liability if they can show that they have taken reasonable steps to prevent harassment, which is a high threshold.
Employers are also now under a legal duty to take proactive steps to protect their workers from being sexually harassed at work as well as deal with complaints that arise. Employers must undertake a risk assessment to ascertain which employees are most at risk, take reasonable steps to reduce those risks and to evaluate their progress. Training of staff is a key part of this, especially for managers and above.
If an employer breaches their duty to take preventive steps to avoid sexual harassment, they may:
• have to pay additional compensation of up to 25% to any worker who successfully brings a claim of sexual harassment to any extent against them; and
• be investigated by the Equality and Human Rights Commission (EHRC) and have enforcement action taken against them.
It is worth noting that an individual cannot bring a claim against their employer for breaching the preventative duty itself. An individual must first bring a claim against their employer for sexual harassment and, if they are successful, the tribunal will automatically move on to consider if the employer has breached the new duty.
Tips for employers on how to approach the duty to prevent sexual harassment
It is vital that employers take action to assess the risks of sexual harassment from both colleagues and third parties, such as customers and clients, consider the steps that they could take to reduce the risks of such sexual harassment occurring, consider which of those steps are reasonable, and then take those steps. What is ‘reasonable’ depends on the situation. There is no set list of steps that all employers must take.
When conducting the risk assessment, employers should consider any factors specific to their sector, the type of work that is undertaken, the ways of working and different roles in their organisation.
TINA DIN and KATE MARSH, Irwin Mitchell LLP
Implementing the duty to prevent sexual harassment: six months on, what have we learned?
‘there is no ‘‘one size fits all’’ list of reasonable steps that employers can take to prevent sexual harassment in the workplace’
When deciding which steps are reasonable, employers can consider a range of factors such as the size and resources of the organisation, who the employees might have contact with as part of their work and how often they are likely to have contact with third parties and whether sexual harassment has happened before.
Examples of preventing sexual harassment
There is no ‘one size fits all’ list of reasonable steps that employers can take to prevent sexual harassment in the workplace, which will likely make this somewhat of a ‘grey area’ while the subject is tested through case law in tribunals.
However, to provide some guidance in the interim, the EHRC published guidance on 12 November 2024, ‘Preventing sexual harassment at work: checklist and action plan for employers’.
The EHRC included a checklist in its guidance, which was originally designed for the hospitality sector, but it can be adapted to suit other workplaces. The hospitality organisations that were involved in testing and developing the checklist used the tool to have conversations with relevant staff or senior leadership about how it might be used in practice, to review current workplace policies and practices and to have conversations with staff to understand where they think they can improve their practice as an organisation.
The checklist is designed to support employers to identify risks and to action concerns.
Changing the working environment
The potential for sexual harassment to occur via misuse of power by senior staff who control the pay, hours and incentives of junior staff, is a key factor to consider. It is recommended that managers or HR teams regularly reiterate the organisation’s zero-tolerance approach to sexual harassment during meetings or briefings. Considerations for minimising risks such as working alone and ensuring that staff have multiple trusted contacts to report issues to, besides their line manager, are also recommended.
Additionally, staff must be made aware of relevant policies, such as those on staff relationships. It is recommended that employers discuss issues with staff to identify any feelings of vulnerability or dangerous situations at work in order to address these concerns, particularly for more vulnerable staff like younger or disabled employees or non-native English speakers.
The working environment should also be assessed by employers, in order to identify for example, means to improve lighting and adjusting working patterns to enhance safety. It also important to evaluate staff room spaces for potential safety improvements.
Communicating with staff
Staff should be reminded about sexual harassment policies, what constitutes sexual harassment and that it will not be tolerated from staff or customers. Placing notices for customers and staff (in appropriate locations) to communicate the organisation’s zero-tolerance policy is a useful reminder, in addition to steps to take if sexual harassment of a colleague is witnessed and the option to report anonymously, if needed.
Staff should be reminded that social activities, such as drinks outside of work can still be associated with their workplace and that incidents will be taken seriously, sometimes resulting in disciplinary action, including summary dismissal.
The ECHR has also provided earlier guidance, ‘Sexual harassment and harassment at work: technical guidance’ and ‘Employer 8-step guide: preventing sexual harassment at work’.
Working practices
Below are several suggested measures to adopt into employers’ working practices to help prevent sexual harassment in the workplace:
• designating multiple key contacts to handle reports or concerns over sexual harassment;
Implementing the duty to prevent sexual harassment: six months on, what have we learned?
‘the EHRC guidance serves as a helpful prompt for employers to use when considering what reasonable steps to take in fulfilling their duty to prevent sexual harassment’
• ensuring up to date and refresher training, as well as clearly signposted response and escalation procedures; and
• providing anonymous reporting options, potentially through an external whistleblowing service, where suitable (although this may not be the most useful tool for identifying actual or potential perpetrators or vulnerable employees).
A clear policy for dealing with harassment by customers or clients should be established, including warning systems and potential bans, with all staff informed of these procedures. Staff should receive training on safe intervention if they witness harassment.
The importance of written agreements with external agencies is also sensible, detailing procedures for handling harassment involving their staff and recommending communication with HR or hiring teams as needed.
Summary
It is clear that the EHRC guidance was designed for the hospitality industry; however, it serves as a helpful prompt for employers to use when considering what reasonable steps to take in fulfilling their duty to prevent. Although there has clearly been a shift in workplace culture towards a more zero-tolerance approach to sexual harassment since the onset of the Me-Too movement, the issue has not disappeared from the workplace and it remains to be seen whether employers will now take preventive steps as a result of the enhanced duty. These might include more proactive policies such as limiting the number of work social events and/or limiting the availability of alcohol, which quite often come hand-in-hand with complaints of inappropriate conduct.
KEY:
EHRC Equality and Human Rights Commission
Section 19A of the Equality Act: a new chapter in
discrimination legislation
In 2024, the scope of indirect discrimination widened with the decision of the EAT in Rollett and the introduction of s.19A of the Equality Act, removing the requirement for claimants to have a relevant protected characteristic. Below, the authors examine the implications for practitioners and look at what may follow.
The EAT decision in Rollett
In Rollett, handed down on 15 August 2024, Mrs Justice Eady, the then President of the EAT, concluded that the employment tribunal had jurisdiction to hear claims under s.19 Equality Act 2010 (EqA) brought by claimants without a relevant protected characteristic, who suffer the same disadvantage arising from a discriminatory provision, criterion or practice (PCP) as persons with the protected characteristic. The substantive claims continue before the employment tribunal.
Eady P’s judgment was an application of the well-known ‘Marleasing principle’, whereby Member States must seek to interpret national law in accordance with EU legislation and its associated case law ‘as far as possible’. Specifically, Eady P’s decision gave effect to CHEZ, a decision of the Court of Justice of the European Union (CJEU) which held that the Race Directive ‘is intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds’.
Rollett heralded a new class of claimant under s.19 EqA: relying on CHEZ, claims for indirect discrimination could be brought by individuals who did not have a relevant protected characteristic. However, as the supremacy of EU law came to an end on 1 January 2024, Rollett can only be relied on by claimants whose claims arose before that date.
The chapter does not, however, end on 1 January 2024.
Section 19A EqA
On 1 January 2024, the Equality Act (Amendment) Regulations 2023 (SI 2023/1425) came into force. By way of various amendments to the EqA, the regulations were designed to reproduce in domestic law the effect of the EU equality directives that would cease to apply after the end of 2023.
Notably, reg 3 inserted a new s.19A into the EqA, entitled ‘Indirect discrimination: same disadvantage’. Under that section, a person (A) discriminates against another person (B) if A applies a PCP which puts, or would put, persons with a relevant protected characteristic at a particular disadvantage, and the PCP puts or would put B at ‘substantively the same disadvantage’.
MARTINA MURPHY and JESSICA FRANKLIN, Outer Temple Chambers and CLARE ARMSTRONG, Equality and Human Rights Commission
Section 19A of the Equality Act: a new chapter in discrimination legislation
‘among the most obvious beneficiaries of s.19A are men with childcare commitments who wish to bring ‘‘same disadvantage’’ indirect sex discrimination claims’
Section 19A is extended to all the protected characteristics except pregnancy and maternity. However, to succeed, there must be no objective justification.
The explanatory note to the regulations makes clear that s.19A is intended to reproduce the principle established in CHEZ
An example of a ‘same disadvantage’ claim
The following example is provided to illustrate how s.19A can be used. An employer has a requirement of fulltime hours. This requirement is a PCP which arguably puts or would put women at a particular disadvantage because women are more likely to take on the greater burden of childcare responsibilities.
A woman who cannot meet the full-time hours requirement can bring an ‘ordinary’ indirect sex discrimination claim under s.19. A man, who also cannot meet the requirement of full-time hours because of childcare commitments, can now bring a ‘same disadvantage’ indirect sex discrimination claim by relying on s.19A. There would of course have to be no objective justification to succeed.
It is important to note that s.19A requires that the PCP puts or would put persons with the relevant protected characteristic at a particular disadvantage. In other words, the group with the protected characteristic need not actually exist. To take the example above, the employer defending the claim of ‘same disadvantage’ indirect sex discrimination brought by the man, may have no female employees at all.
It might seem strange that s.19A allows a claim to be brought by a person without a protected characteristic, relying on a hypothetical group with the protected characteristic. However, the EqA already allows for ‘associative’ direct discrimination claims and also for claims for discrimination or harassment by ‘perception’. In both these cases, the claimants suffer discriminatory treatment but do not themselves have a protected characteristic.
An outcome that benefits all
The extension of protection to this new class of claimant reinforces discrimination legislation for everyone’s benefit. The existence of an indirectly discriminatory PCP may mean that there are few, if any, employees who have the relevant protected characteristic and who are able to bring an ‘ordinary’ indirect discrimination claim.
Claims under s.19A will help level the playing field, removing an indirectly discriminatory PCP to the benefit of all those who are, or would be, put to a disadvantage by its application. To return to the full-time hours PCP, the man’s successful challenge may lead to the removal of the requirement for the benefit of men and women alike.
Thoughts on the application of s.19A
Among the most obvious beneficiaries of s.19A are men with childcare commitments who wish to bring ‘same disadvantage’ indirect sex discrimination claims such as in the scenario above. But the protection is extended to age, disability, gender reassignment, marriage and civil partnership, race, religion or belief and sexual orientation too. There is plenty of scope for creativity. By way of example:
• an employer holds its social events on Friday nights. This PCP puts or would put Jewish employees (who regularly attend Shabbat dinner on Friday nights) at a particular disadvantage because they are forced to miss the social events. A non-Jewish employee has a regular therapy appointment every Friday night. They are also forced to miss the social events. They may be able to bring a ‘same disadvantage’ (religion) claim under s.19A;
• an employer requires its employees to come into the office three days a week. The office is on the third floor and has no lift. This PCP puts or would put disabled wheelchair-users at a particular disadvantage because it is difficult for them to reach the third floor. A non-disabled employee, who has broken their ankle and is temporarily using a wheelchair, also has difficulty reaching the third floor. They may be able to bring a ‘same disadvantage’ (disability) claim under s.19A; and
Section 19A of the Equality Act: a new chapter in discrimination legislation
‘a person who is a carer for a person with a protected characteristic, may, depending on the facts, be able to bring a s.19A claim’
• an employer’s job advertisement mandates a minimum of 15 years’ experience in retail. This PCP puts or would put younger applicants who have the required skills, at a particular disadvantage. An older applicant, who has the required skills but does not have 15 years’ experience (for example, because of a career break), may be able to bring a ‘same disadvantage’ (age) claim under s.19A.
Employers should think creatively too. As there is no requirement for an actual group with a protected characteristic before a claimant can bring a ‘same disadvantage’ claim, employers must consider whether their PCPs might put someone with a protected characteristic at a particular disadvantage, even when they employ no one with that protected characteristic.
‘Substantively the same disadvantage’
A key battleground will be what amounts to ‘substantively the same disadvantage’.
Taking the full-time hours example above, if the male claimant’s disadvantage arises not out of childcare commitments (as the protected group’s does), but out of another regular commitment (for example, volunteering or physiotherapy), is the claimant put at substantively the same disadvantage as woman with childcare commitments? Similarly, in the Friday night social example above, if the non-Jewish person’s Friday night commitment is something less (arguably) serious than therapy, for example, a regular gym class, is that person put at substantively the same disadvantage as the Jewish person attending Shabbat dinner? In the third-floor office example above, what if the non-disabled person has not broken their ankle but is simply unfit. Are they put at substantively the same disadvantage?
These ‘same disadvantage’ cases may turn on the degree to which the disadvantage complained of is something within the control of the claimant. Perhaps there will be a circling back to the idea of proving the ‘reason’ for the disadvantage (an idea rejected in Essop; Naeem in the context of ordinary indirect discrimination). Guidance from higher courts will be welcome.
The objective justification issue will need careful handling. There may be a temptation to find PCPs objectively justified in cases where there is no one with the protected characteristic being put to a particular disadvantage, but tribunals should be cautious: firstly, to avoid treating ‘same disadvantage’ claimants as somehow less deserving, and secondly, because a finding in favour of the employer on objective justification could put a future claimant with the protected characteristic out of a remedy.
Remedies will also need careful handling. Respondents may try to argue that an award for injury to feelings should be lower where the victim does not have a protected characteristic. However, if tribunals routinely make minimal awards for injury to feelings under s.19A, the protection will be stripped of its force.
Other forms of ‘associative’ indirect discrimination
‘Friends and family’ or ‘associative’ indirect discrimination refers to the situations where a PCP puts a person who associates with or has a relationship with a person who has a protected characteristic (which was not the case in CHEZ) at a particular disadvantage (see further, Harvey). For example, where a person is put at a particular disadvantage by a PCP because they care for a disabled person. A handful of first instance decisions, such as Follows, have found that CHEZ enabled such a claim to be brought under s.19.
In Rollett v BA, the employment tribunal held that while s.19 had to be read in line with CHEZ to permit a ‘same disadvantage’ claim, CHEZ was not authority for the ‘friends and family’ type of claim. The tribunal in Rollett considered but declined to follow the earlier tribunal decision in Follows
In view of s.19A enacting the ‘substantively the same disadvantage’ type of associative discrimination, it seems that a ‘friends and family’ type claim is now unlikely to succeed. However, a person who is a carer for a person with a protected characteristic, may, depending on the facts, be able to bring a s.19A claim.
Section 19A of the Equality Act: a new chapter in discrimination legislation
's.19A is brimming with potential. It will be interesting to see how this provision develops over the next few years'
For completeness, ‘associative’ indirect discrimination does not extend to claims for failures to make reasonable adjustments, nor to discrimination arising from disability (Hainsworth).
Conclusion
As will no doubt be apparent, s.19A is brimming with potential. It will be interesting to see how this provision develops over the next few years.
Martina Murphy leading Jessica Franklin (Outer Temple Chambers) appeared for the claimants in Rollett before the EAT (and below), instructed by Kepler Wolf and TMP Solicitors and supported by Clare Armstrong and David Araya on behalf of the Equality and Human Rights Commission.
KEY:
EqA Equality Act 2010
PCP provision, criterion or practice
Rollett (EAT) British Airways Plc v Rollett (3315412/2020) [2024] EAT 131, [2024] IRLR 891
CHEZ CHEZ Razpredelenie Bulgaria AD v Komisia za zashita ot discriminatsia (C-83/14) [2015] IRLR 746
CJEU Court of Justice of the European Union Essop; Naeem Essop v Home Office (UK Border Agency) and
Naeem v Secretary of State for Justice [2017] UKSC 27, [2017] 1 WLR 1343
Harvey Professor Owen Warnock, Harvey on Industrial Relations and Employment Law (London: LexisNexis, 1991), Div. L, (3), (A), (3) Indirect discrimination (f) ‘Same disadvantage’ cases and associative indirect discrimination
Follows Follows v Nationwide Building Society (2201937/2018V) 14 March 2021
Hainsworth Hainsworth v Ministry of Defence [2014] EWCA Civ 763, [2014] IRLR 728
Rollett v BA Rollett v BA (332541) 20 January 2023
contributor guide lines
The purpose of these guidelines is to minimise the need to edit submissions to conform to the ELA Briefing style. As the guidelines may be updated from time to time, it is important that contributors follow the latest version, available from the editor or on the ELA website. It is a condition of publication that ELA Briefing has First British Publication Rights. Do not submit articles printed elsewhere (in identical or similar form) or being considered for publication elsewhere. Authors may provide a link to their article as it appears in ELA Briefing (not the complete issue of ELA Briefing) on their firm/company website, provided they clearly acknowledge that the article was first published in ELA Briefing (© Employment Lawyers Association). Please ensure that any contributions will not expose ELA or IDS to civil or criminal proceedings.
SUBMISSION: articles should be emailed as a Microsoft® Word attachment to ELABriefingEditor@elaweb.org.uk by the copy deadline (details on the website or from the editor) in order to be considered for that month’s issue. Articles may be held over to a subsequent month if there are space constraints.
PHOTO: all submitted articles should be accompanied by a highresolution portrait ‘headshot’ photograph of the author(s) in jpeg or tiff format (a minimum of 5cms at a quality of 300dpi).
REFERENCES: at the end of the article, list the short form and full name (with un-italicised case reference) of all cases and legislation, in the order in which they appear in the article. Please provide a hyperlink in the key to any case report cited, and for any reports and legislation you mention (for the digital edition).
CONTENT: articles should examine recent case law developments or legislative proposals, providing succinct analysis and practical tips and keeping the facts to a minimum (for example, there is often no need to summarise the decision of a lower tribunal). Submissions can also be opinion pieces, checklists, overviews of a topic suitable for more recently qualified readers, overviews of foreign laws or discussions of topics related to employment law, such as HR practice. ET decisions are rarely suitable. Articles should be balanced and address both employer and employee viewpoints where possible. They should be written in an accessible style, with short sentences and paragraphs, sub-headings to signpost underlying content, a conclusion and no footnotes.
WORD COUNT: for all articles must be either 600-650, 1,100-1,200 or 1,800-1,900 words (reflecting the page length).
TITLES: should be no more than 50 characters, followed by the author’s name and firm/chambers. The topic should be clear from the title.
INTRODUCTION: begin with a ‘standfirst’ paragraph of 30-40 words, which should introduce the subject covered in the article.
EXTRACTS: suggest a phrase or short sentence for each page, to be extracted as quotes.
SUB-HEADINGS: only use initial capitals for the first word.
BULLETED LISTS: use bulleted lists rather than numbered or lettered paragraphs. Short lists should be introduced with a colon, begin with a lower case letter (unless, for example, there is a name) and have no punctuation at the end. Longer bulleted paragraphs should be punctuated at the end with semi-colons and with a full stop on the final bullet.
ABBREVIATIONS:
• use symbols (%, US$,€ ); do not use ampersand unless it is part of a name
• use numerals for all numbers except one to nine and million/billion
• do not use stops for abbreviations such as etc, ie, eg
• use acronyms where they exist, but with initial capital only: Acas, Ofcom, Nato, Defra
• use standard abbreviations for organisations and the like (CBI, ECJ, EAT, MoJ, BIS, ELA)
• if no standard abbreviation exists, first use its full name, then a short form
• only define short forms (in brackets without quote marks) if not doing so would be confusing
• refer to all legislation and cases (italicised) using an abbreviated form taken from the key
• sections of legislation should appear as follows: s.94 ERA (ERA s.94 at the start of a sentence), ss.94-95 ERA
CAPITALS: use initial capitals for languages, personal titles, names of places, institutions (such as the current Government) and publications, statutory provisions (other than section and paragraph), months and public holidays. Use lower case for job titles (such as director, editor) and legal descriptors such as claimant, defendant, judge, counsel, court, tribunal, etc.
DATES: display in the following format: 24 July 2012.
ITALICS: italicise case names and names of publications.
QUOTES: use single quote marks where quoting from judgments or legislation (except for quotes within quotes). Do not italicise. Include paragraph and page references in brackets after the quote mark (para 12, p.12).