Significant employment law cases of 2023

As 2023 draws to a close, this week’s Wednesday Wonder reviews some of the most significant employment law decisions of the past year.

Employment status

Fire Brigades Union v Embery looked at whether an employee can be employed by two employers to carry out the same work. Mr Embery worked for the London Fire Brigade (LFB) but was released from his duties for the LFB so he could devote more time to his duties as an elected official for the Fire Brigade Union (FBU). He was subsequently terminated by the FBU for breaching one of their rules. He claimed unfair dismissal from the FBU. His claim was dismissed by the Employment Appeal Tribunal (EAT), who found that there was no employment relationship between the FBU and Mr Embery. Though he was carrying out duties for the FBU, Mr Embery remained employed by the LFB who were responsible for paying him and making NIC and pensions contributions. This case reinforced the general principle than an individual cannot be employed by two different employers to carry out the same work at the same time.

Recently, in Independent Workers Union of Great Britain v Central Arbitration Committee the Supreme Court decided whether Deliveroo drivers should be considered workers for the purpose of collective bargaining. After Deliveroo drivers joined the Independent Workers Union of Great Britain, the Union requested recognition from Deliveroo for collective bargaining purposes. Deliveroo rejected the request. The Union then made an application to the Central Arbitration Committee (CAC), an organisation with the power to order Deliveroo to recognise the Union. One of the conditions that had to be satisfied for the Union to be recognised is that the drivers be “workers” within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992. The CAC rejected the Union’s application on the basis that the drivers did not meet the definition of worker.

The case was appealed to the Supreme Court, who upheld the CAC’s decision. Significant to the decision was the fact that the drivers had an unfettered right of substitution. The Supreme Court reasoned that while the riders rarely used their right of substitution, the right was genuine. There was therefore no obligation on the riders to provide personal service which is “essential to the existence of an employment relationship.” This case highlights the significance of a genuine right of substitution in defeating a claim based on worker status. 

Religious discrimination

In Higgs v Farmor's School the EAT laid out guidance to help employers navigate controversial beliefs in the workplace. Mrs Higgs is a Christian and believes that same sex relationships and gender fluidity are prohibited by the Bible. She made posts on her personal Facebook account objecting to the sex education being taught in school. A parent at the school reported the posts. They were concerned that Mrs Higgs was homophobic or transphobic and that her views could negatively affect vulnerable pupils. Mrs Higgs was suspended and taken through a disciplinary process. She was subsequently dismissed and filed a discrimination claim in the Employment Tribunal (ET).

The ET found in favour of the school, and Mrs Higgs appealed. The EAT upheld Mrs Higgs’ appeal and remitted the case back to the ET. The EAT also laid down some guidance for employers and future tribunals when considering similar cases:

• Employers must recognise the importance of the right to religion or belief, even where the belief is not popular and may offend.
• The manifestation of a person’s belief may be restricted to protect the rights of others.
• The restriction on one right must be proportionate to the employer’s objective. Employers should consider whether their objective could also be achieved via a less severe restriction.   

Fahmy v The Arts Council England is another case that considered gender critical beliefs in the workplace. Ms Fahmy holds gender critical beliefs, including that sex is not the same as gender identity and that a person cannot change their sex. It was not disputed that these beliefs were protected under the Equality Act 2010. The employer had recently revoked a grant which had been given to the LGB Alliance due to concerns that the LGB Alliance is anti-trans. On a Teams call Ms Fahmy defended the LGB Alliance. She also asked how gender critical views were protected by the employer. Subsequently, a collective grievance was circulated via email which referred to gender critical beliefs as a “cancer”.

The ET held that Ms Fahmy had been harassed. The email and petition were unwanted conduct which had the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for Ms Fahmy. The employer had not done enough to prevent harassment related to religion or belief. It was noted by the ET that the employer’s Dignity at Work policy did not even reference belief. This case reminds employers on the importance of having comprehensive anti-harassment policies and regular anti-harassment training.

Vicarious liability

This case in this section is Trustees of the Barry Congregation of Jehovah's Witnesses v BXB and contains mention of sexual assault. Mr and Mrs B joined the Congregation and shortly after befriended Mary and Mark Sewell. Mr Sewell is an “elder” in the congregation. This is a mark of distinction as elders are rarely criticised and their directions are always followed. One afternoon, after they had been out evangelising, both couples were back at the Sewells’ house. There, Mr Sewell raped Mrs B. He was found guilty of rape and sentenced to a prison term.

Mrs B then claimed damages from the Congregation, claiming it was vicariously liable for Mr Sewell’s actions. The case was appealed to the Supreme Court which applied the two stage test for establishing vicarious liability. Stage one asks whether the relationship between the Congregation and Mr Sewell was one of employment or “akin to employment”. Stage two determines whether the wrongful conduct was closely related to the acts which Mr Sewell was authorised to carry out. The Court found that the relationship between Mr Sewell and the Congregation was “akin to employment”. The Congregation is hierarchal in structure and exercises control over its members. Mr Sewell was given authority by the Congregation, which created the risk that this power would be abused. However, the Court reasoned that the offence committed by Mr Sewell was insufficiently intertwined with his duties as an elder. The Congregation was therefore not vicariously liable. This case confirms the test to be applied by the courts when establishing vicarious liability, and reassures employers that they will not be held vicariously liable for wrongdoing committed by employees which is not sufficiently connected to their employment.

Holiday

In Chief Constable of the Policy Service of Northern Ireland v Agnew the Supreme Court looked at the question of how far back a claim for underpayment of holiday may go. Employees of the Police Service of Northern Ireland were not paid the correct amount of holiday pay. Their holiday pay was paid at the basic rate of pay only, when it should have included an element of overtime. The employer accepted that the employees were underpaid. The issue was how far back the employees’ claims for underpayments could go. The employees argued that they could bring claim in respect of a series of underpayments, provided the last underpayment in the series was less than three months before they brought the claim. The employer argued that the series would come to an end if underpayments were separated by a gap of more than three months or if a correct payment was made.

The employer’s appeal was dismissed. The Supreme Court ruled that an interval of three months between underpayments did not necessarily constitute a break in the series, nor did a correct payment of holiday pay. This case will be significant for employers facing claims for underpayment of holiday pay. Employers who regularly pay their employees commission or overtime should take care to ensure that they are calculating holiday pay correctly.

As always we will keep you updated on any significant case updates in 2024 as they occur. If you have questions about any of the above cases, please get in touch by email at employment@warnergoodman.co.uk or call 023 8071 7717.