MOrsel: A tale of 2 cases

Last week saw the rare occasion of two tribunal cases making the headlines in one week. Here's a quick summary of points to note:

When going to the pub while off work is not a sackable offence

In Kane v Debmat Surfacing Limited, Mr Kane was employed by the Respondent as a driver. He had suffered from chronic obstructive pulmonary disease (COPD) for several years. Due to his ill-health, Mr Kane had various periods of absence from work, the one in question being 9 to 30 March 2020. On 9 March 2020, Mr Kane was seen at a social club close to his workplace by another employee of Debmat who then informed his manager. The manager telephoned Mr Kane who is alleged to have told him that he had 'been bad in bed all day with his chest.' An investigation meeting was subsequently held and following a disciplinary meeting, Mr Kane was dismissed for a 'serious and wilful breach of the company's rules' which it was said to constitute gross misconduct.

The Employment Judge concluded that Mr Kane was unfairly dismissed. The exact nature of the misconduct was unclear; there was no rule that Debmat could point to which said that an employee could not socialise in whatever way they deem appropriate whilst absent from work through illness. Assumptions had been made as to what Mr Kane may have been advised by his doctor but no evidence was ever presented as to this. There were serious factual inconsistencies regarding the telephone call in which Mr Kane was said to have lied to his manager. The Tribunal found that Debmat had not followed a fair procedure in dismissing Mr Kane, and if they had done so, the likelihood of dismissal would have been 25%. Further, they found that Mr Kane had not contributed to his dismissal.

It is not often that what may be considered a lowly 'run-of-the-mill' unfair dismissal claim makes even the local news but this case is clearly ripe for attention-grabbing headlines. For example, 'Going to the pub while off work sick is not a sackable offence, judge rules' (the Metro website).

The reality is however far less exciting; the decision turns on a combination of factual inconsistencies, the employer's flawed procedure, and their lack of relevant rules or policies. At the risk of stating the obvious, employers should review their own absence policies to ensure that what may be considered as the unwritten rule of 'don’t go to the pub whilst off sick' is covered. Remember though that in certain circumstances of ill health, socialising may be appropriate; these cases will always turn on their own facts.

Protection of gender-critical philosophical beliefs

Maya Forstater won her appeal over tweets that she had posted on gender recognition. She alleged that she was discriminated against (when her contract was not renewed following the tweets) because of her belief that a person's biological sex is absolute and cannot be changed, that a transwoman is not in reality a woman. The Employment Appeal Tribunal decided that this belief was a philosophical belief that was capable of protection under the UK's Equality Act.

Why is this important?

A philosophical belief can only be protected under the Equality Act if the belief touches on a substantial aspect of human life, is worthy of respect in a democratic society, is not incompatible with human dignity and does not conflict with the fundamental rights of others. The lower tribunal had determined that Ms Forstater's belief was not capable of protection because "it was not worthy of respect in a democratic society". The EAT disagreed, concluding that the lower tribunal had mistaken the law.

This impact of the judgment is challenging because "gender-critical" beliefs and "gender-identity" beliefs are polarised, but both are protected under the UK's law. Individuals are entitled to hold philosophical beliefs and not to be discriminated against because of those beliefs. Difficulties inevitably come for employers when employees have conflicting views; holding genuine beliefs is one thing, but bullying, harassing or intimidating individuals because of those beliefs is quite another. What impact will this judgment have on employers? Will they be placed in impossible positions in balancing the beliefs of individuals on both sides of the debate? That could have a bearing on managing employees in practice as well as policy drafting.

Such discrimination is not currently directly protected in either Jersey or Guernsey, but protection may be introduced in the future.

For more information please contact Carla Benest, Rachel Guthrie or Toby Mann.