Employment Update Seminar - Birmingham

EMPLOYMENT LAW

Employment Autumn Seminars

Wednesday 8th May 2024

No5 Barristers Chamber’s Birmingham

Contents

Section 1

Members List – Page 1

Programme – Page 3

Section 2 – Page 4

High Court Injunctions

Mugni Islam-Choudhury

Section 3 – Page 14

Restricted reporting orders redaction in the wake of Millicom Services Ltd v Clilfford and Frewer v Google

Anthony Korn

Section 4 – Page 24

Protected Religious and Philosophical Beliefs: how to defend against claims for discrimination

Sapandeep Singh Maini-Thompson

Section 5 – Page 32

Interactive Session

Alexander Mellis

Employment Update Seminar

8th May 2024

No5 Barristers’ Chambers, Birmingham

Programme

2 CPD

9:00 – 9:30 Registration

9:30 – 10:00 High Court Injunctions

Mugni Islam-Choudhury, No5 Barristers’ Chambers

10:00 – 10:30

Restricted reporting orders redaction in the wake of Millicorn Services Ltd v Clifford and Frewer v Google

Anthony Korn, No5 Barristers’ Chambers

10:30 – 11:00 Break

11:00 – 11:30 Protected Religious and Philosophical Beliefs: how to defend against claims for discrimination

Sapandeep Singh Maini- Thompson, No5 Barristers’ Chambers

11:30 – 12:30 Interactive Session

Alexander Mellis, No5 Barristers’ Chambers

MembersList Employment

ToviewordownloadmembersCVspleasevisitNo5.com

ManjitSGillKC (Silk:2000Call:1982)

MohammedZaman (Silk:2009Call:1985)

AnthonyKorn (1978)

AndrewJMcGrath (1983)

IrvineMaccabe (1983)

NabilaMallick (1992)

NigelBrockley (1992)

RichardHignett (1995)

TimSheppard (1995)

MugniIslamChoudhury (1996)

CharlesCrow (1999)

CharlesPrice (1999)

ColinBanham (1999)

HelenBarney (1999)

JackFeeny (2005)

JessicaSmeaton (2008)

RussellHolland (2008)

CarolineJennings (2010)

AlexanderMellis (2013)

AndrewRhodes (2015)

TonyPerry (2016) KawsarZaman (2018)

AliceBeech (2019)

SapandeepSinghMaini-Thompson (2021)

AfiyaAmesu (2022)

ChangezKhan (2008) AssociateTenant Pupils

AlexanderBailey (2022)

Mugni Islam-Choudhury

Call: 1996

"Mugni is exceptional and a master of employment litigation. He is really enjoyable to work with for solicitors and clients; he quickly builds rapport and total confidence. He has an amazing knowledge of case law backed up with his robust advice. He is hugely intelligent, sharp and eloquent."

Legal 500 2024

He is regularly instructed on confidential and sensitive whistleblowing, grievance and disciplinary investigations, usually involving investigation of executive directors of large employers. He is known particularly for his strong cross examination style but also putting client care at the forefront of his practice.

He was appointed Deputy District Judge in 2019 and sits as judge in the County Court on civil matters.

Expertise

Employment

Mugni is an experienced employment law specialist who has conducted employment-related hearings in the ET, EAT and civil courts for over 25 years. Mugni is a firm believer in client care and takes time to understand the needs of the client.

He is a specialist in complex and/or technical areas of law in employment litigation and has particular interest and expertise in dealing with high value claims or complex matters in the field of TUPE, discrimination, equal pay, interim relief, whistleblowing, interim relief and/or where there is a High Court connection (e.g. injunctive relief involving confidentiality breaches or in doctors disciplinary hearings). He has appeared against or alongside leading employment silks.

Injunctions

Mugni s civil law practice is focussed on injunction work in the High Court, where he acts for employers and employees in cases involving restrictive covenants, wrongful dismissal, data theft, and unfair competition.

He has successfully applied for and defended applications/claims for breach of contract, breach of fiduciary duties, interim relief and springboard injunctions, as well as defending proceedings for committal for breach.

Mugni also sits as a Deputy District Judge in the County Court.

Investigations

Mugni is instructed by a number of national law firms and large employers to conduct either independent or legally privileged investigations concerning conduct involving very senior employees or directors. Matters usually involve issues of discrimination, whistleblowing, safeguarding, fraud, gross misconduct, bullying and harassment.

Private Sector

Mugni appears regularly for a number of FTSE100 and FTSE250 clients that are household names. His wider practice also includes acting for airlines, aerospace and engineering, banks and professional services businesses such as accountancy and law firms.

He is also experienced in representing employers who wish to protect themselves from their departing employees trying to poach their business, and appears in the High Court on restrictive covenant injunction cases.

NHS/Health Sector

Mugni has built up an extensive knowledge over the last 20 years of the workings of the NHS/health sector, acting for a whole range of acute trusts, FTs, mental health trusts, and other health entities He has experience dealing with:

Complex whistleblowing claims this represents a large proportion of Mugni s ET work

Doctors disciplinaries (MHPS)

Agenda for Change issues

Professional misconduct of other healthcare staff and/or relating to Serious Untoward Incidents. TUPE issues arising from commissioning decisions.

Local Government & NDPBs

Mugni is familiar with the specific needs of NDPBs and local authority clients (particularly in respect of schools) and the complex legislative framework in which they operate. He has many years of experience in acting in discrimination or whistleblowing claims for such clients, but also has experience in acting in niche areas by providing:

Advice and representation in termination of employment of senior officers (e.g. Chief Executive or Finance Director) due to

gross misconduct, under the Local Authorities (Standing Orders) Regulations 1993 (SI 1993/202).

Advice and representation on transfer of liabilities relating to staff transferring when a maintained school converts to academy status, under TUPE and/or the Academy Act 2010 (as amended) upon dissolution of the governing body.

Education Sector

Over the years, Mugni has developed expertise in dealing with cases in the education sector, acting for Universities, academics, FE Colleges and private schools.

Awards

Appointments

Deputy District Judge, since 2019, sitting in the County Court

Qualifications

UCL LLB(Hons)

Employment Restrictive Covenants: Recent

cases

Presented by –Mugni Islam-Choudhury 8th May 2024, No5 Barristers’ Chambers, Birmingham

Overview

 Contractual Interpretation

 Severance

 Interim injunctions -the American Cyanamid test

 Order for “Speedy Trial”

 Indirect Restraint of Trade

 On the horizon

Contractual Interpretation

 Boydell v NZP Ltd [2023] IRLR 572 (CA)

 At first instance HHJ Auberbachgranted an injunction severing some words from clause 3.1 of the contract

 Bean LJ approved existing decisions that:

 Words used in a contract must be given the natural and ordinary sense in the context of facts known at the time the contract was concluded

 “Fantastical”, “extravagant” or “unlikely or improbable” circumstances should be ignored, if a clause is valid in all ordinary circumstances

Contractual Interpretation

 Bean LJ also approved the SC decision in Tillman v Egon Zehnder Ltd [2019] IRLR 838 that:

Where words are a capable of two meanings, one which is void and the other valid, the latter should be preferred.

If there are two alternative realistic constructions the parties are deemed to have meantto enter into a valid agreement.

If there is only one realistic construction, then it must be followed irrespective of the impacton the parties.

Severance

 Bean LJ applied SC decision of Tillman v Egon Zehnder Ltd [2019] IRLR 838 that:

 A cautious approach to severance (i.e. deletion of clauses or words) should be taken

 The “blue pencil” test applies an unenforceable provision is capable of being deleted withoutaddition or modification ofwhat remainsisgood law.

 It is for the employer to show that the removal of the offending words does not change the overall effectofthe posttermination restraints.

Interim Injunctions – American Cyanamid Test

 Bean LJ held that:

 The American Cyanamid test (“Is there a serious issue to be tried and what is the balance of convenience?”) is not statutory test

 In employment cases, it may be unjust to stop at that point.

 Where the restrictions is likely to have substantially expired by the time of trial, it is permissible to conduct a preliminary view of the prospects of success and factor thisin to the “balance of convenience”.

Order for Speedy Trial

 VeritionAdvisors (UK Partners) Ltd v Jump Trading [2023] IRLR 787 (CA)

 SimlerLJ held the test is: - Good reasons showing real urgency - How jumping the queue would affect other court business - Prejudice to any party - Any other factors, including delay - Most employment claims would satisfy the urgency test.

Indirect Restraint of Trade

 Direct versus Indirect

 E.g. Direct -express non-compete clause

 E.g. Indirect –re-payment of training costs in the event of employee departure

Indirect Restraint of Trade

 Steel v Spencer Road LLP (t/a Omerta) [2024] IRLR 200 (HC)

 S had a basic salary + discretionary bonus

 Clause allowing clawback of bonus paid in previous three months if employee hands in notice.

 In Jan 2022, S received £187,500 bonus and in Feb 2022, gave notice of resignation. Omerta demanded return of the bonus

Indirect Restraint of Trade

 Steel v Spencer Road LLP (t/a Omerta) [2024] IRLR 200 (HC)

 S argued that provision was unlawful and unenforceable as an indirect restraint of trade.

 At first instance, Judge held that as S was allowed to work elsewhere, it was not a restraint of trade, and therefore the demand for repayment was valid.

 S appealed

Indirect Restraint of Trade

 Steel v Spencer Road LLP (t/a Omerta) [2024] IRLR 200 (HC)

 Bacon J dismissed the appeal

 Re-affirmed the approach of a 2-stage test:

1)Whether the clause is a restraint of trade

2)If so, it is only enforceable if reasonable with reference to the interests of the parties and public

Indirect Restraint of Trade

 Steel v Spencer Road LLP (t/a Omerta) [2024] IRLR 200 (HC)

 There are no “immutable boundaries or rigid categorisation” –applying Quantum ActurialLLP v Quantum Advisory [2021] EWCA Civ227

 Sometimes Stage 1 overlaps with Stage 2

 It is very fact sensitive

Indirect Restraint of Trade

 Steel v Spencer Road LLP (t/a Omerta) [2024] IRLR 200 (HC)

 The case of Tullett Prebonplc v BGC Brokers LP [2010] IRLR 648 (HC) was affirmed and applied:

 Although they may disincentivise an employee from leaving, the bonus clawback provisionsare not within the restraintof trade doctrine,since theydid not restrict ability to work elsewhere

On the horizon

 Labour Party has not expressly stated its position, although has done so for other areas –e.g. (employment status, UD from day 1, zero hours)

 Boris Johnson Government consulted on general non-competes

 Reported in May 2023 (Sunak Government)

 Proposal is to put a cap on general non-competes of no more than 3 months for workersand employees (but notpartnerships,LLPs and shareholder agreements)

 No legislation has passed, and dependent on Parliamentary timetable.

Any Questions

Employment Restrictive Covenants: Recent cases

Presented by –Mugni Islam-Choudhury mic@no5.com

Anthony Korn

Call: 1978

"Anthony is a go-to for complex issues. He is technically very strong."

Chambers 2023

Expertise

Employment

Anthony s practice ranges from the straightforward unfair dismissal case to complex TUPE, discrimination and equal pay issues. He has worked in the health and education sectors dealing particularly with disability discrimination and reasonable adjustment issues, TUPE, redundancy and age discrimination. He also specialises in cases involving TUPE transfers in the private sector and breach of contract claims involving bonuses.

Recent cases at both an Employment Tribunal and appellant level have included high value whistleblowing and equal pay claims (for both claimants and respondents). He is a leading expert on the quantification of Employment Tribunal claims. His practice extends to High Court injunctions to enforce restrictive covenants and confidentiality obligations. Anthony is licensed to undertake Public Access Work.

Anthony is known for his quick grasp of complex issues, the clarity of his advice, his thorough preparation of tribunal cases, his extensive knowledge of case law and his pro-active and tactical approach to litigation. He has been described by a wing member as one of the best advocates to have appeared in the Reading Tribunal . In another case, his cross examination was described as a master class

Anthony also has considerable experience in representing employers who are faced with difficult litigants in person.

Anthony has lectured extensively in employment law to the Industrial Law Society, the Employment Lawyers Association and the Industrial Society on issues ranging from TUPE to sex discrimination to unfair dismissal. He currently lectures for CLT on TUPE, Discrimination and

Awards

Memberships

ELA s Legislative and Policy Committee Employment Law Bar Association Management Committee

Chair of the Legislative and Policy Committee of the Employment Lawyers Association Editor of ELA Briefing

Appointments

Anthony is also an ACAS Arbitrator and Mediator.

Qualifications

Magdalen College, Oxford (BA Jurisprudence)

ACAS Arbitrator

Public Access licensed

Publications

As well as editing our own newsletter, Anthony has written on a wide range of employment law subjects in publications that range

from the Journal of Business Law to Personnel Today and Croner s employment law digest. He is a contributor to Blackstone s Employment Law Practice and Jordans Employment Law Manual. He is the co-author of Employment Tribunal Remedies (4th edition) published by OUP in 2011.

Recent Developments on Restricted Reporting Orders and Redaction of Documents

Presented by –Anthony Korn 8th May2024, No5 Barristers’ Chambers, Birmingham

Power to Order Restricted Reporting

 Section 10A of the Employment Tribunals Act (Confidential information)

 Section 11 of Employment Tribunals Act (Sexual misconduct)

 Section 12 of the Employment Tribunals Act (disability)

 Rule 50 of Tribunal Rules

Rule 50(1)

 ET power at any stage of the proceedings in so far as it considers it necessary in the interests of justice to protect convention rights of any person or in the circumstances identified in Section 10A of the ETA

 Bound to take account of the principle of open justice (Rule 50(2))

 Terms of order (Rule 50 (3)) including identifying the person whose identity is to be protected and specifying the length of the order (Pipenbrockv London School of Economics and Political Science [2022] IRLR 957)

FrewerV Google UkLtd [2022] IRLR 472

Relevant Background

 Whistleblowing claim

 Claimant alleged that Google operated in an anti competitive manner

 Application for anonymization of clients and redaction of information

 Application made under Rule 29 (case management) and Rule 50 (privacy)

Tribunal orders

 Anonymisation of all clients in documents placed before ET

 Redaction of commercially sensitive information

 Documents to be made available to Claimant in unredacted form

EAT Ruling

 Disclosure limited to relevant documents

 Documents which support or adversely affect a party’s case

 Disclosure is necessary for the fair determination of the issues

EAT Ruling

Continued

 May be reasonable to redact documents which contain irrelevant information

 Such redaction may be permitted if documents are commercially confidential

 Any application for an Order Rule 50 must have regard to the ‘open justice’ principle

 A rule 50 Order can only be made if it is necessary

EAT Ruling

Continued

 An Order under Rule 50 will only be made if the information is commercially confidential

 An order will not be made if the information is merely commercially sensitive

 A high threshold is required for any order which derogates from the principle of open justice

EAT Outcome

 Appeal allowed

 Tribunal failed to identify which rule it was relying on

 Order regarding anonymization of client names amounted to an error of law

 Strong public interest in knowing identities of clients

 Judge failed to consider public interest and open justice principle

Matter of Anonymity Remitted

 Article 6 and Article 10 rights

 These required a ‘focussed’ and ‘detailed’ consideration

 Order to redact commercially sensitive information could not stand

 Tribunal failed to conduct ‘the necessary structured analysis’

Millicom Services Ltd V Clifford [2023] IRLR 295

Factual Background

 Whistleblowing claim

 Respondent provides digital services in South America and Africa

 Claimant was employed as a Global Investigations Manager

 Claimant disclosed that staff of subsidiary had tracked mobile phone of customer who was a prominent citizen in a foreign country and disclosed the findings to a government agency

 The citizen was subsequently the victim of a serious criminal offence

The Proceedings

 Claimant brought proceedings against Millicom and 3 former colleagues

 Millicom requested that identities were anonymised including identity of customer, details of the attack, the alleged link between the attack and the Respondent and its staff

 Risk to safety of customer and employees meant that such an order was in the interests of justice and to protect rights under Articles 2,3,5,6 and 8 of the ECHR.

 Millicom argued that without the order there was a risk of reprisals and physical violence against Millicom employees

 Chief Executive said that in the absence of an order he would not be willing to give evidence or defend proceedings

ET Ruling

 ET declined to make an Order. It said that ECHR did not apply because the countries were outside the jurisdiction and there was no objective evidence to support the application.

 Further any duty of confidence was outweighed by the open justice principle

 EAT allowed appeal

Court of Appeal Ruling: EAT was Correct to Allow Appeal

 ET’s conclusion on ‘interest of justice’ under Rule 50 was flawed. The EJ had not considered this separately from the issue of convention rights

 The starting point was the principle of open justice but the principle of open justice contains key qualifications: the EJ should have started by asking whether the derogations sought were justified by the common law exception to open justice.

 The fact that the relevant employees (and others who were not parties to the proceedings) worked overseas outside the ECHR jurisdiction was not decisive. The EJ had failed to consider the position at common law or under Rule 50

 The ‘subjective’ fears of the Respondent’s Chief Executive for himself and others should not have been rejected and were relevant

 There was a real risk of life and limb being threatened

 ET failed to carry out the necessary balancing exercise

 The Court observed that not all whistleblowing claims involve information that is protected by the duty of confidence and those that do will involve a determination to determine whether any restrictions on disclosure are compatible with open justice

 The matter was remitted for a re-determination by a differently constituted ET

Anonymity Application Remitted

 The ET’s approach to the issue of confidentiality was also flawed

 The issue was whether a restriction on the principle of open justice was necessary to protected any information communicated to a person in confidence

 Relevant circumstances include the nature of the information and the nature of the relationship which gives rise to a relationship of confidence. The issue was whether it was in the public interest that the duty of confidence should be breached

Sapandeep Singh MainiThompson

After graduating from Oxford University, he came top of his year in his Master s degree at the London School of Economics before obtaining first-class marks in all papers during his LLM at University College London, specialising in labour law, comparative public law and the conflict of laws in commercial disputes.

Sapan is a Governing Trustee of the charity Royal Star & Garter.

Expertise

Employment

Sapan represents both Claimants and Respondents in the Employment Tribunal, the Employment Appeal Tribunal (EAT) and the High Court. He has worked with clients across multiple sectors including health & social care, higher education, financial services, retail, local and central government.

His experience includes:

Successfully acting for an employee in an EAT appeal concerning an employer s obligations of consultation under Regulation 13 of

TUPE;

Successfully representing an HR manager against a well-known food company in a 3-day claim for pregnancy & maternity discrimination & constructive unfair dismissal (Unfair Dismissal, Equality Act);

Appearing unled in the High Court for an accounting company in injunction proceedings, in relation to breach of confidence and copyright by an ex-employee (Injunctions, Data Protection; Restricted Reporting Orders);

Successfully defending a university in a 7-day claim brought by an academic for race discrimination & constructive unfair dismissal (Unfair Dismissal, Equality Act);

Successfully acting for a financial services company in a 7-day claim for sexual harassment, sex discrimination, victimisation and wrongful dismissal (Breach of Contract, Equality Act);

Successfully defending a mental health care company in a 4-day claim for whistleblowing detriment, religious belief discrimination and unfair dismissal (Whistleblowing, Equality Act, Unfair Dismissal);

Representing a manufacturing company in a 4-day claim for unfair dismissal, successfully obtaining a Polkey reduction of over 50% owing to financial mismanagement by the Director (Unfair Dismissal, Breach of Contract);

Drafting the particulars of claim for a senior asset manager in a six-figure Equal Pay claim (Equal Pay);

Advising a law firm on the enforceability of non-compete clauses in a solicitor s contract of employment (Restrictive Covenants);

Representing a public sector claimant at a 2-day remedy hearing concerning complex issues of causation, divisibility and apportionment of psychiatric injury (obtaining over £50,000 in compensation) (Remedy, Causation, Remoteness);

Representing the Department for Work & Pensions in a 10-day claim for discrimination arising from disability, victimisation and unfair dismissal (led by Michael Paulin) (Unfair Dismissal, Equality Act).

Representing a higher education college in a 5-day claim for discrimination arising from disability & unfair dismissal (led by Mugni Islam-Choudhury) (Redundancy, Equality Act).

Sapan advises on liability and quantum and conducts judicial mediations. His advisory practice encompasses ancillary civil matters such as breach of contract and data protection claims. He is a member of the Government Legal Department s Junior Junior Panel and is regularly instructed to draft responses and to assist in employment proceedings.

In addition to court work, Sapan provides training and seminars to law firms on a range of employment and equality law matters. Sapan has presented on gender recognition and discrimination law at Mills & Reeve, Shoosmiths, Shakespeare Martineau, Bates Wells, Knights Plc, Freeths, Harbottle & Lewis and various other firms. His presentations have been described by solicitors variously as excellent , thoughtprovoking and very insightful .

His work on gender reassignment and the Equality Act was published by the New Law Journal in January 2024.

Discrimination

Sapan has been instructed by Claimants and Defendants to advise upon claims in the County Court concerning discrimination in the provision of goods and services.

His recent experience includes:

Advising a Claimant in a claim for disability discrimination against an unincorporated association concerning the denial of an application for club membership;

Advising a Claimant in a claim for disability discrimination against a higher education college concerning a failure to implement reasonable adjustments to a student s examination arrangements.

Investigations

Sapan undertakes investigations and inquiries for both private and public sector clients. Recent instructions include:

Investigating a whistleblowing complaint of discrimination arising from disability on behalf of a major legal advice charity (interviewing 8 witnesses);

Leading an employment grievance investigation into complaints of race discrimination and gross misconduct at a mediumsized London law firm (interviewing 6 witnesses).

Accreditations

Middle Temple: Colombos Public International Law Essay Prize (2021)

Defence Extradition Lawyers Forum: John RWD Jones QC Essay Prize (2021)

Geoffrey Nice Foundation Scholarship (2020)

Middle Temple: Queen Mother Scholarship (2019)

Middle Temple: Harmsworth Entrance Award (2019)

BPP University: Advocacy Scholarship (2019)

Winner of the Leicester University Medical Law Moot (2018)

LSE: Department of Government prize for Best Overall Performance (2017)

LSE: Department of Government prize for Best Dissertation (2017)

St John s College, Oxford: Casberd Scholarship (2014-2016)

Appointments

Junior Junior Counsel, Attorney General s Civil Panel Counsel Governor, Royal Star & Garter

Qualifications

2019: University College London, LLM in Labour Law, Conflict of Laws and Public Law (First Class, with Distinctions in all subjects)

2017: London School of Economics, MSc Comparative Politics (First Class, Ranked 1st of 70)

2016: University of Oxford, BA History and Politics

Protected Religious and Philosophical Beliefs: how to defend against claims for discrimination

Presented by – Sapandeep Singh Maini-Thompson 8th May 2024, No5 Barristers’ Chambers, Birmingham

Contents

1.Whatareprotectedbeliefs?

2.Directdiscriminationongroundsofaprotectedbelief;

3.Indirectdiscriminationongroundsofaprotectedbelief;

4.Connectingthreadsandfuturedevelopments.

ProtectedBeliefs

Section10(2)EqA:

(2)Beliefmeansanyreligiousorphilosophicalbeliefandareferencetobeliefincludesareferenceto alackofbelief.

Article9(1)ECHR:

‘Everyonehastherighttofreedomofthought,conscienceandreligion;thisrightincludesfreedomto changehisreligionorbeliefandfreedom,eitheraloneorincommunitywithothersandinpublicor private,tomanifesthisreligionorbelief,inworship,teaching,practiceandobservance.’

GraingerCriteria[2010]

Thebeliefisgenuinelyheld;

Thebeliefisnotsimplyanopinionorviewpointbasedonthepresentstateofinformation available;

Thebeliefconcernsaweightyandsubstantialaspectofhumanlifeandbehaviour;

Thebeliefattainsacertainlevelofcogency,seriousness,cohesion,andimportance;

Thebeliefisworthyofrespectinademocraticsociety,isnotincompatiblewithhuman dignityandisnotinconflictwiththefundamentalrightsofothers.

RecentlyEstablishedProtectedBeliefs

Gender-criticalbeliefs(Forstater)

Anti-Zionism(DavidMiller)

Oppositiontocriticalracetheory(Corby)

ClaimsforDirectDiscrimination:anemployer’smain defence?

PagevNHSTrust[2021]EWCACiv255

(1)thecasewherethereasonisthefactthattheclaimantholdsand/ormanifeststhe protectedbelief,and

(2)thecasewherethereasonisthattheclaimanthadmanifestedthatbeliefinsome particularwaytowhichobjectioncouldjustifiablybetaken.

HiggsvFarmor’sSchool[2023]EAT89

Aschoolpastoraladministratorwasdismissedfollowingparentalcomplaintsabout Facebookpostsshehadmaderegardingtheschool’srelationshipscurriculum.

EAT:theETmustconductaproportionalityassessment;

Recognisingthefundamentalrightsofothers;

Contextspecificity;BankMellatcriteria.

WhataretherelevantfactorsforanETtoconsider?

ProportionalityCriteria

(i)thecontentofthemanifestation; (ii)thetoneused; (iii)theextentofthemanifestation;

(iv)theworker’sunderstandingofthelikelyaudience;

(v)theextentandnatureoftheintrusionontherightsofothers,andanyconsequentialimpactontheemployer’s abilitytorunitsbusiness;

(vi)whethertheworkerhasmadeclearthattheviewsexpressedarepersonal,orwhethertheymightbeseenas representingtheviewsoftheemployer,andwhetherthatmightpresentareputationalrisk;

(vii)whetherthereisapotentialpowerimbalancegiventhenatureoftheworker’spositionorroleandthatofthose whoserightsareintrudedupon;

(viii)thenatureoftheemployer’sbusiness,inparticularwherethereisapotentialimpactonvulnerableservice usersorclients;

(ix)whetherthelimitationimposedistheleastintrusivemeasureopentotheemployer.

Isthisanewtestfordirectdiscrimination?

HastheEATinadvertentlyopenedthedoortojustifyingdirectdiscriminationbyan employerintheproportionatepursuitofalegitimateaim?

CourtofAppeallikelytoaddressthisquestion;

Isthisworkable?

Omooba[2024][EAT]

Musicaltheatreactorwasdroppedbyanagencycompany&theatrefollowinga“social mediastorm”surroundingherhistoricaltweetsonChristianityandhomosexuality.

Claimsfor:directdiscrimination;harassment;indirectdiscrimination&breachofcontract.

NotaHiggs-typecasesaidtheEAT:atruly“separablereason”forthetreatment.

Cancellingtheappellant’scontractwasajustifiedmeansofmitigatingcommercial damage.

Summaryconclusions

Employersmustpermittheexpressionofprotectedbeliefsintheworkplace;

Employersshoulddistinguishthemanifestationofaprotectedbelieffromthebeliefitself; -Specialsensitivitytosocialmediaisadvised

Employersshouldensureaproportionateapproachistakentosanction.

IndirectDiscrimination

MackerethvDWP[2022]EAT99

ChristiandoctorwhoobjectedtotheuseoftransgenderpronounsinhisroleasaHealth andDisabilitiesAssessor;

ConflictwiththeDWP’spolicyaimnottocauseoffencetopotentiallyvulnerable transgenderserviceusers&nottoincurreputationaldamage;

Nopracticalalternativeemploymentcouldbefound;

Whenthereisnopracticalalternativetotheimplementationofalegitimatepolicyaim,the balancingexercisewillfavouranemployerdischargingaserviceoveranemployee expressingaprotectedbelief.

Connectingthreads

Willreputationalfactorsenableemployerstodilutetheproportionalityassessment requiredbyHiggs?

IstheproportionalityassessmentlikelytosurvivetheCourtofAppeal’sscrutiny?

Ensuringtheproportionalityoflegitimateaims

Alexander Mellis

Call: 2013

"Alexander is a clever barrister with great insights into complex cases. He has a compendious knowledge of CPR and is a very strong performer in relation to claims where fraud is alleged"

Legal 500 2023

Alexander has been instructed on behalf of both Claimants and Respondents in the Employment Tribunal. This includes claims for unfair dismissal, wrongful dismissal, breach of contract claims including employer s contract claims, whistleblowing and a wide array of discrimination claims. Alexander has the ability to work with a wide variety of clients, understanding that the needs of a corporate client can differ drastically from that of an individual.

Preliminary hearings in which Alexander has been instructed have involved issues such as amendments to include determination of employment status, time limits and amendments to claims.

Cases of interest that Alexander has recently been instructed on include:

5-day hearing in a breach of contract claim and employer s contract counter-claim against a litigant in person, successfully securing damages for the employer following the claimant s resignation in breach of contract; 4-day unfair dismissal and disability discrimination claim, successfully securing an unfair dismissal finding for a long serving deputyhead teacher who was made redundant when he returned from sick leave;

Whilst always keen to utilise settlement to ensure the best outcome for a client, Alexander is also willing to press on to a hearing where accepting an available offer is simply not to the client s benefit.

Accreditations

Harmsworth Scholar, Middle Temple

Qualifications

BPTC Very Competent , Kaplan Law School

LLB(Hons) First Class, University Of Durham Harmsworth Scholar, Middle Temple