November 25, 2019
Authored by: Nikeeta Mahay
Our November update considers recent developments in employment law, including cases on religion and belief discrimination, third party harassment and investigations. We also outline other points of note, including the new EU Whistleblowing Directive and the EHRC’s Guidance on NDAs.
Dismissal not unfair where in-house counsel recommended changes to investigation report
The EAT has held that a dismissal was not unfair where a draft investigation report prepared by HR and an investigator was altered on the recommendation of in-house counsel.
In this case, the in-house solicitor had advised the investigator to remove his evaluative opinions and conclusions of whether the employee’s conduct amounted to misconduct, and to limit the findings to whether there was a prima facie case to answer. This was on the basis that the conclusions should be left to the disciplinary panel that was subsequently appointed.
The EAT upheld the Tribunal’s decision that the overall dismissal was still fair as there was no evidential material that had been withheld from the investigation report for review by the disciplinary panel. As part of this decision, the EAT took into account that the appeal hearer (who was a barrister) reviewed the draft investigation reports and did not find that the report was changed in order to make the employee’s dismissal more likely, and no pressure had been applied to the investigators.
Why this matters?
This case is a useful reminder about the scope of the investigator’s role in a disciplinary procedure. At the outset of an investigation, the investigator should be clear about the scope of their role and limit findings to factual matters, rather than evaluative opinions. This case will also provide comfort to in-house counsel advising internal clients about the scope of investigatory reports.
No discrimination where doctor refused to address transgender patients by chosen pronouns
An Employment Tribunal has held that a Christian doctor who refused to address transgender patients by their chosen pronouns, titles and sex did not suffer discrimination on the grounds of his religion or belief. Whilst the Tribunal accepted that the doctor’s Christianity was a religion protected under the Equality Act 2010, it went on to find that the doctor’s particular beliefs which led to him refusing to address transgender patients in their chosen way were not protected under the legislation.
In this case, the doctor was a contract worker from an employment agency who was engaged to work at a DWP assessment centre. The doctor was informed at an induction session that DWP had a policy that transgender individuals should be referred to by their preferred name and pronoun. The doctor stated that whilst he agreed to use the first name a transgender patient wished to use, as a Christian, he believed that God assigned people’s gender at birth and he could not refer to individuals by a gender that was different to their birth sex. Following the induction session the doctor continued to state that he could not comply with the DWP policy and ultimately his contract was terminated.
The Employment Tribunal accepted that the doctor did genuinely hold the religious beliefs he asserted and that his right to hold those beliefs was protected. However, having considered the test established in earlier case law, the Tribunal held that the doctor’s particular lack of belief in, and conscientious objection to, transgenderism, which led him to refuse to address transgender patients in their chosen way, were incompatible with human dignity, and this conflicted with the fundamental rights of others (that is, transgender persons). As such, these beliefs were not protected under the Equality Act 2010. The Tribunal also found that any person who refused to follow the DWP policy would have been treated in the same way as the doctor. The Tribunal therefore rejected the discrimination claims.
Why this matters?
This case is the latest in a number of religious discrimination cases which demonstrate that not all manifestations of an employee’s religion will entitle them to discrimination protection.
Employer not liable for employee’s racial harassment by a third party at work
The EAT has held that an employer was not liable for racial harassment that an employee experienced by one of its patients. Since provisions explicitly protecting employees from third-party harassment were removed from the Equality Act 2010 a few years ago, case law has held that an employer will only be liable for third party harassment where the employer’s action or inaction is because of a relevant protected characteristic. In this case, the EAT found that the employer’s failure to take adequate steps to prevent racial harassment in the workplace was not because of race, and there was therefore no third party harassment. The EAT also held that there is nothing in any provision of EU law that requires employers to be liable for third party harassment.
Why this matters?
The removal of the third party harassment provisions was criticised by many people at the time, and the EHRC and Women and Equalities Select Committee have both repeatedly called for the provisions to be reinstated, particularly in light of the #MeToo movement. A government consultation on whether new third-party harassment provisions should be introduced closed in October 2019 and the outcome is awaited. The employee may well appeal to the Court of Appeal.
Round up of other developments
EU Whistleblowing Directive formally adopted: The EU Justice and Home Affairs Council has formally adopted this Directive to protect whistleblowers reporting breaches of EU law. Much of the content of this Directive is already contained in UK legislation. The provisions will kick-in in 2021. The extent to which it will apply in the UK depends on Brexit.
EHRC Guidance on confidentiality agreements (NDAs): The EHRC has produced guidance on the use of confidentiality provisions in discrimination cases. The guidance, if followed in its entirety, would mean employers changing the way they handle employment contracts and settlement agreements. For more information on the EHRC’s Guidance on NDAs you can read our detailed blog.