Welcome to the July edition of Worked Up! As we enter British summer time with Wimbledon in full swing and temperatures (finally) starting to rise, we’ve rounded up some of the key employment-related news that you may have missed over the last month while sipping an iced tea in the sun (also, incidentally, a great way to enjoy Worked Up).

In amongst the latest raft of ministerial resignations, the government has confirmed that it has no plans to amend the Equality Act 2010 to make menopause a protected characteristic or implement provisions relating to combined discrimination. This comes despite menopause-related employment tribunal claims doubling over the past year according to analysis carried out by the Menopause Experts Group. In separate news, during a debate in the House of Lords, it was also announced that the long-awaited Statutory Code of Practice on dismissal and re-engagement (known as “fire and rehire”) will be published later this summer.

The rules regarding the categories of health professionals who can sign medical “fit notes” has also been extended. From 1 July 2022, registered nurses, occupational therapists, pharmacists and physiotherapists will all be able to sign these statements for employees and patients. Finally, following what was heralded as the biggest rail strike in a generation, new regulations have been laid before Parliament to make it easier for employers to engage temporary staff during industrial action.

In this month’s edition of Worked Up we look at some of the key employment cases from recent weeks, including whether long COVID can be deemed a disability, if ethical veganism amounts to a philosophical belief, the pitfalls of being too slow at enforcing non-competes and the importance of following the correct internal processes prior to making a dismissal.

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If you missed our recent webinar series on all things retention and recruitment and would like to catch up, you can access recordings of the sessions here and here.

Employee with long COVID deemed disabled for Equality Act purposes

Turkeys and Trespass: Does ethical veganism amount to a philosophical belief?

You snooze, you lose: Court of Appeal refuses injunction to enforce non-compete provision

Focus on the process says EAT in disability discrimination case

Mr T Burke v Turning Point Scotland ETS/4112457/2021

In this case, an employment tribunal has determined that an employee with long COVID symptoms was disabled within the meaning of section 6 of the Equality Act 2010 (“EqA 2010”).

The claimant in this case, Mr Burke, was employed by Turning Point as a caretaker since 2001. In November 2020, he tested positive for COVID-19 and reported fluctuating symptoms including extreme fatigue, joint pain, severe headaches and sleeplessness. He was issued with successive fit notes which stated that he was unable to work and referred to the effects of long COVID and post-viral fatigue syndrome. By contrast, two occupational health reports concluded that he was medically fit to work and that the disability provisions of the EqA 2010 were unlikely to apply.

Mr Burke’s sick pay ceased in June 2021 but due to relapses of his symptoms (namely fatigue) he never returned to work. He was dismissed in August 2021 on grounds of ill health. Mr Burke brought several claims, including one for disability discrimination.

As a preliminary issue, the tribunal had to determine whether Mr Burke was disabled during the relevant period. It concluded that he was. It held that he suffered from the physical impairment of post-viral fatigue syndrome caused by COVID-19, noting that there was “no financial benefit to the claimant remaining off ill at that time” as he had exhausted all sick pay. This impairment had an adverse effect on his ability to carry out normal day to day activities. Mr Burke explained that he no longer felt able to walk to the shop “at the end of my block to buy a newspaper” or help with the cooking or household chores. The effect was considered substantial even though his symptoms varied in severity, and it was likely to be long-term on the basis that his symptoms were capable of lasting for at least 12 months. The relevant tests were therefore satisfied to meet the definition of disability.

We understand this is the first case in the UK where an individual has successfully claimed that long COVID is a disability under the EqA 2010. It may result in an increase in the number of claims being brought by employees suffering from similar symptoms, with official figures released last month showing that more than two million people in the UK are thought to be living with the effects of long COVID.

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Ms S Free Miles v The Royal Veterinary College ET/2206733/2020

In this case, an employment tribunal decided that a belief in ethical veganism, which encompassed an obligation to break the law in order to relieve animal suffering, did not amount to a philosophical belief under section 10 of the Equality Act 2010 (“EqA 2010”)

The claimant in this case, Ms Miles, was a veterinary nurse employed by the Royal Veterinary College. In February 2019, she was arrested by police in connection with alleged burglaries by the Animal Liberation Front. When searching her flat, the police found an unwell turkey named Dorothy which Ms Miles claimed she was looking after for a friend. Following investigation and disciplinary meetings, Ms Miles was summarily dismissed for multiple findings of gross misconduct. This included her association with extreme animal rights’ groups that endorsed law breaking and that she had participated in illegal activities such as trespass and theft of animals. During her appeal hearing, Ms Miles revealed that she had been charged with the criminal offence of conspiracy in connection with animal rights activities and would be tried later that year.

She brought an employment tribunal claim against the Royal Veterinary College for direct and indirect philosophical belief discrimination. She relied on her belief in ethical veganism, which is that humans “should not eat, wear, use for sport, experiment on or profit for animals” and which extends to “a moral obligation to take positive action to reduce or prevent the suffering of animals”, even if this involves acting unlawfully. The tribunal held that had her belief been limited to the first part only, it “would have had no reservation” in concluding that it amounted to a philosophical belief under section 10 of the EqA 2010. It also stated that it might have reached the same conclusion had the moral obligation to take positive action been limited to lawful action only, such as participation in protests and demonstrations.

However, Ms Miles’ belief went further than this and included acting in contravention of the law. As a result, it did not satisfy the fifth element of the test for a philosophical belief set out in Grainger PLC & Others v Nicholson EAT/0219/09, which states that “it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others”. The tribunal stated that it is not open to individuals to decide which laws are worthy of respect and which are unjust and can be disobeyed. Ms Miles’ discrimination claims therefore failed on the basis that she did not hold a philosophical belief under section 10 of the EqA 2010.

This decision provides a useful illustration of where the tribunal will draw the line between protecting philosophical beliefs and maintaining a wider respect for the law. It can be distinguished from the case of Mr J Casamitjana Costa v The League Against Cruel Sports ET/3331129/2018 where the claimant’s belief in ethical veganism was afforded legal protection under the EqA 2010, but did not manifest itself in illegal action.

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Planon Ltd v Gilligan [2022] EWCA Civ 642

In this case, the Court of Appeal upheld a decision by the High Court not to grant an interim injunction to enforce a non-compete clause against a former employee.

Mr Gilligan’s contract with software management company Planon Limited (“Planon”) contained a non-compete clause which forbade him from being involved “in any capacity with any business concern” which was in competition with Planon for 12 months following the termination of his employment. Mr Gilligan resigned on notice and left Planon in August 2021. In September 2021, he started working for one of their competitors. Planon sought an interim injunction in October 2021 in the High Court and then appealed to the Court of Appeal after its application was refused.

The Court of Appeal dismissed the appeal. However, their reasons for refusing to enforce the non-compete clause differed from the High Court. It found that the judge had erred in assessing the reasonableness of the restriction by failing to identify the criteria being used and only considering the likely effect on Mr Gilligan’s employment prospects. By the date of the appeal hearing, Mr Gilligan had been in his new role for seven months, meaning that the non-compete clause had only four months left to run. The Court of Appeal held that these were “very weighty factors” in deciding that the balance of convenience pointed firmly away from granting the injunction. Much, if not all, of the damage caused to Planon’s legitimate business interests would have already occurred.

The Court of Appeal also held that damages would not be an adequate remedy for Mr Gilligan. Elisabeth Laing LJ considered that, in principle, restraining an employee from taking up a new job for many months might cause them damage that could not be compensated in money alone. Bean LJ also noted that “except in cases of very wealthy defendants or where the claimant employer is offering paid garden leave for the whole period of restraint”, the argument that damages would be an adequate remedy “has no traction”.

This judgment is a cautionary reminder to employers seeking injunctive relief that time will always be of the essence. Applications should be made as quickly as possible upon discovering that an employee is working for a competitor as a delay of even a few days may be enough to swing the balance in favour of the status quo.

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Department for Work and Pensions v Mrs Susan Boyers [2022] EAT 76

In this case, the Employment Appeal Tribunal (“EAT”) held that a decision to dismiss a disabled employee without properly evaluating the success of a trial amounted to discrimination arising from a disability within section 15 of the Equality Act 2010 (“EqA 2010”)

The claimant in this case, Mrs Boyers, worked for the Department of Work and Pensions (“DWP”) as an administrative officer at its Middlesbrough office. She was disabled for the purposes of the EqA 2010 as she suffered from chronic recurrent migraines, which were exacerbated following alleged incidents of bullying and harassment by a colleague. From February 2017, Mrs Boyers was absent from work with work-related stress. Towards the end of 2017, she stated that she was willing to return to work but not at the Middlesbrough office. She had a six-week trial at an alternative location which the DWP deemed unsuccessful and instructed her to return to the Middlesbrough office without notice. Mrs Boyers felt unable to make the return and remained on sick leave until she was dismissed in January 2018 by reason of capability, due to her unacceptable level of attendance. She brought an employment tribunal claim for, among other reasons, discrimination arising from disability under section 15 of the EqA 2010.

The employment tribunal upheld the claim on the ground that the dismissal could not be justified as a proportionate means of achieving a legitimate aim. On the case’s second visit to the EAT, the appeal was dismissed. The EAT considered that the employment tribunal had properly carried out the balancing exercise required of it. It was entitled to take the employer’s procedure that led to the dismissal into account when considering proportionality. There were several aspects of the six-week trial which were not carried out reasonably. For example, the DWP did not provide weekly feedback as promised and there were issues with the IT equipment and training provided to Mrs Boyers. Without properly evaluating the trial to decide whether it had been genuinely successful or not, the DWP could not show that dismissal was appropriate and reasonably necessary to achieving its aims.

This judgment explicitly recognises that failures in procedure and process can be relevant to the objective justification defence. Employers will struggle to prove they acted proportionally when dismissing a disabled employee if: (a) they provide no evidence on how its decision-makers thought their actions would serve the legitimate aims being relied on; and (b) they fail to demonstrate that less discriminatory alternatives to dismissal were considered. This case is a reminder to employers that dismissal action should not be taken prematurely and that all possible courses of action should be carefully considered.

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