Get in touch 0117 325 0526

MENZIES LAW CASE REVIEW: employment law cases to watch in 2023

Share this...

We’re anticipating decisions on some important employment law cases in the next 10-12 months.

Here’s our summary of the ones on appeal to keep on your radar:

Menopause:  Rooney v Leicester City Council

Summary: The employment appeal tribunal (EAT) overturned the employment tribunal’s decision that the employee (who was suffering from significant menopausal symptoms) was not disabled.  (see our overview from late 2021 case here)

The EAT said that the Tribunal had not adequately explained why the employee’s condition did not amount to a disability (particularly given the impact of the symptoms on her day-to-day activities, such as forgetting to attend meetings and events and leaving her house unlocked). Further, in making its decision, the Tribunal had should only have focussed on what the employee could not do as a result of her condition.

The EAT returned the case to the Tribunal to decide afresh whether the employee was disabled.  This Tribunal hearing is due to take place in October 2023.

Implications: This is an important case to watch because; it is one of the first cases to assess how menopausal symptoms fit the definition of disability; and it will be helpful to see how the Tribunal assesses the employee’s menopausal symptoms in light of the EAT’s guidance that it should focus on what the employee cannot do.

Whatever the outcome, the EAT’s decision acts as a warning to employers that failing to notice and address the symptoms of menopause can result in a successful disability discrimination claim under the Equality Act 2010.

Holiday Pay:  Chief Constable of Police Service of N Ireland v Agnew

Summary:  The established UK position on holiday pay claims has been that a gap of three months or more between alleged deductions will act as a cut-off to back-dated payments. (see our summary on the original tribunal decision here)

However, early in 2022, the Northern Ireland Court of Appeal decided in Chief Constable of Police Service of N Ireland v Agnew that this was not the case and a series of deductions is not broken by such gap or lawful payments.

At present, this decision does not bind tribunals outside of Northern Ireland. However, it has been appealed to the Supreme Court (which heard the case on 14 December 2022) and its soon to be published decision will be binding throughout the UK.

Implications: This is an important case to watch as if the Supreme Court agrees with the Northern Ireland Court of Appeal, it will mean workers will be able to recover underpayments of holiday going back up to 2 years – which will substantially increase liability for historical underpayments of holiday pay.

Religious discrimination/philosophical beliefs/social media:  Higgs v Farmors School

Summary: The Tribunal found that although Mrs Higgs’s (a Christian school worker) gender-critical belief (opposing gender fluidity) was a protected philosophical belief, she was not discriminated against because of it. Her employer did not dismiss her (following disciplinary proceedings) because of her protected beliefs, but due to the manner in which she expressed these. She had posted comments on Facebook which the employer considered were homophobic and prejudiced against the LGBT community.

Mrs Higgs is appealing the Tribunal’s decision to the EAT. (The EAT was originally due to hear the case in July 2022, but a member of the panel made known his strong views on people with gender critical views on Twitter, which meant that he could appear biased).  The EAT hearing is due to take place on 16 March 2023.

Implications: This is an important case to watch as it deals with the complex issue of the difference between holding a protected belief (for which an employee should not be discriminated against) and demonstrating or taking action as a result of (or ‘manifesting’) that belief.

Sometimes termed as ‘clash of rights’ cases, these issues can be tricky for employer’s to manage, given the need to balance protection for holding gender critical views against individuals with other protected characteristics.

Agency workers: Kocur v Angard Staffing

Summary: The EAT and the Court of Appeal held that agency staff don’t have the right to apply and be considered for internal vacancies on the same terms as directly recruited employees. They only have the right to be notified and receive information about these vacancies. Therefore the employer did not breach the Agency Workers Regulations 2010 (AWR) by only allowing agency staff to apply for published vacancies once permanent staff had had the chance to do so.

This decision is being appealed to the Supreme Court, which is due to hear this case in December 2023.

Implications: This is an important case to watch as many employers prefer to prioritise their own, in-house, staff to fill vacancies before offering them to temporary staff. This is particularly important in the context of redundancies where it’s common to exclude agency staff from job vacancies until those members of staff who have been provisionally selected for redundancy have decided whether to apply for them.

Philosophical Belief: Mackereth v Dept for Work & Pensions

Summary: The Tribunal and the EAT held that although Dr Mackereth’s (a Christian health and disabilities assessor) gender-critical belief (that a person cannot change their sex/gender at will) was a protected philosophical belief, he was not discriminated against because of it.  See our previous write-up on the Mackreth case here)

His employer did not suspend or dismiss him because of his protected beliefs, but due to the action he wanted to take as a result (i.e. the way in which his beliefs ‘manifested’). It was his refusal to use the preferred pronouns of transgender customers (which conflicted with his employer’s policies) which led to the employer’s treatment end of his employment, not his protected belief itself.    Dr Mackereth is seeking permission to appeal to the Court of Appeal.

Implications: This is an important case to watch as it (so far) illustrates that having a gender-critical belief does not mean that an employee can ‘misgender’ transgender people with impunity and that employer’s are entitled to take action if they ‘manifest’ their belief in this way. However, if the Court of Appeal upholds Dr Mackereth’s appeal, this may tip the balance back towards protecting those who hold the gender critical views.

Trade Union activities: Mercer v Alternative Future Group

Summary: The Court of Appeal (disagreeing with the EAT) held that employees who are subjected to a detriment (such as suspension or removal of discretionary benefits) for preparing for or taking part in strike action, cannot bring a claim under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) (which generally protects workers who participate in industrial action).

The Court of Appeal said that this gap in protection for striking workers may put the United Kingdom in breach of article 11 of the European Convention on Human Rights (ECHR). However, it is for Parliament and not the courts to address this issue.

The decision has been appealed (by UNISON) to the Supreme Court. The hearing is expected to take place on 12–13 December 2023.

Implications: This is an important case to watch. If the Supreme Court overturns the Court of Appeal’s decision and holds that section 146 TULR(C)A does in fact allow employees to bring claims in respect of detriments, this will make it more difficult for employers to take (lawful) steps to dissuade employees from going on strike.

Covid Dismissals: Mhindurwa v Lovingangels Care Ltd

Summary: The Tribunal in this case held that during the Covid-19 pandemic (and at a time when the  Coronavirus Job Retention Scheme (CJRS) existed) employers had a duty to actively consider furloughing an employee under this scheme as an alternative to redundancy. The absence of a reasonable explanation for not doing so would make the dismissal unfair.

The employer has appealed against this decision and the EAT hearing is due to take place on 20 April 2023.

Implications: This is an important case to watch for employers who are facing unfair dismissal claims from employees whom they made redundant during the pandemic without first considering the use of furlough under the CJRS. If the EAT upholds the Tribunal’s decision, this will likely mean that such dismissals were unfair.

(see also the recent Court of Appeal decision in Rodgers v Laser Cutting)

Fire and Rehire: USDAW v Tesco Stores Ltd

Summary: The Court of Appeal overturned an injunction imposed by the High Court which permanently prevented an employer from proceeding with dismissal and re-engagement proposals (so-called ‘fire and rehire’) to remove a pay enhancement.

The Court of Appeal did not consider it appropriate to grant an injunction to permanently stop a private sector employer dismissing an employee where its decisions were made in a way that was consistent with the employment contract.

The Supreme Court has granted the union, USDAW, leave to appeal the Court of Appeal’s decision. However, no hearing date has been set yet.

Implications:  This is an important case to watch.  Although the Court of Appeal’s decision is reassuring for employers (in that it makes it more difficult for workers and unions to obtain injunctions to prevent ‘fire and rehire’ dismissals), this could be overturned by the Supreme Court.

Whistleblowing:  Keen followers of whistleblowing cases and law will notice we have not covered Kong v Gulf International Bank (UK) Ltd In January the employee’s appeal to the Supreme Court was refused so no further decisions will come on this case.  See our previous comments and summary on the Kong case here

Contact Menzies Law

Newsletter sign up

Review Solicitiors