Top 5 recent workplace developments – July 2023

This is our selection of recent developments which we think will impact on HR practice.

1. Discrimination: Philosophical belief

The EAT has provided guidance on factors to take into account when assessing whether an interference with the right to freedom of belief and expression is proportionate.

Mrs Higgs, a School Pastoral Administrator and Work Experience Manager, was dismissed after the school received complaints about Facebook posts she had made relating to relationships education in primary schools.

The school considered that someone reading the posts could reasonably consider that she not only believed that gender fluidity should not be taught in schools but also had a negative attitude towards the LGBTQ+ community, and trans people in particular. Mrs Higgs subsequently brought claims for discrimination and harassment due to her protected beliefs.

The EAT stated that in such cases, a tribunal must first engage with the question of whether the employee's actions were a manifestation of their philosophical beliefs by determining whether there was a sufficiently close or direct link between the belief and their actions. The EAT found that there was such a close link between Mrs Higgs’ protected beliefs and her Facebook posts. 

The EAT also noted that where an employer takes action because of the way an employee has expressed their belief, the tribunal should carry out a proportionality assessment to determine whether the employer’s interference in the employee’s right to freedom of expression is objectively justified. The EAT provided guidance on relevant factors to take into account when assessing whether an employer’s interference with the right to freedom of expression is proportionate:

• the content, tone and extent of the employee’s statement or action
• the likely audience
• the nature of the employer's business and any consequential impact on the employer's ability to run its business
• whether the employee has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and might present a reputational risk, and
• the interference should always be done in the least intrusive way. 

The EAT allowed the appeal and sent the claim back to the tribunal for determination.

Practical point

The EAT’s guidance is helpful for employers on assessing the proportionality of a response to an employee’s manifestation of gender critical views.

A tribunal has now awarded £100,000 compensation in the high-profile gender critical beliefs case, Forstater v CGD Europe. Last year, a tribunal had held that Ms Forstater had suffered direct discrimination when her consultancy agreement was not renewed after she expressed gender critical beliefs (including a belief that sex is immutable and should not be conflated with gender identity, and that trans women are men) on Twitter and at work.

Higgs v Farmor's School v The Archbishops' Council of the Church of England

2. Privilege: Investigation report  

The Scottish Court of Session has upheld an order for disclosure of an original investigation report, rejecting arguments that it was protected by legal privilege. 

Mr Chakraborty, a Post-doctoral Research Assistant to a Professor at the University of Dundee, raised a grievance against the Professor under the University's Dignity at Work policy, alleging racial abuse, harassment, bullying and discrimination. An investigation was subsequently carried out. The final version of the investigation report incorporated changes suggested by external legal advisers and had an annotation noting that the report was amended following legal advice. In the tribunal proceedings, Mr Chakraborty sought disclosure of the original version of the report. The University maintained that the report acquired legal advice privilege when it was amended because comparison of the two versions could allow conclusions to be drawn about the terms of the legal advice it had received.

The issue in this case was whether the University's own act, of issuing the final version of the report containing a footnote revealing that it had been amended following "independent legal advice", made the original report confidential. Legal advice privilege applies to confidential communications which:

• pass between a client and the client's lawyer, and
• have come into existence for the dominant purpose of giving or receiving legal advice about what should sensibly be done in the relevant legal context.

The Court of Session concluded that the original report was not privileged and must be disclosed. It found that any privilege in the report was probably waived when the University revealed the legal advice to the investigator – but in any event it was waived once it became known that the report had been amended following legal advice.

Practical point

This case is a useful reminder that all draft reports and communications produced during the course of an internal procedure will likely be disclosable as evidence in any subsequent tribunal proceedings. It is therefore important to keep careful control over draft versions of grievance investigation reports.It is advisable to have a single document which is overwritten when amended. 

The University of Dundee v Chakraborty

3. EDI: Positive action 

An inquiry has found that a Royal Air Force recruitment drive to boost diversity discriminated against white men.

The RAF ordinarily used the “first past the post” system in recruitment so that positions were given to candidates who passed the various stages of selection such as aptitude, medical and fitness tests. However, this changed after diversity targets were set, to increase the number of female recruits to 20% and ethnic minority recruits to 10% by 2020, and for 40% of the force to be female and 20% from an ethnic minority background by 2030. 

In 2020 and 2021, 161 candidates, who were either women or from ethnic minority backgrounds, were accelerated into training places ahead of other candidates.

The inquiry, conducted by the Ministry of Defence, found that the pressure to meet the recruitment targets had led to unlawful positive discrimination. The diversity campaign, which was intended to be positive action, was found to have discriminated against at least 31 men who were held back in training. These men will now receive compensation.

Practical point

We are now five years on from the first year of gender pay gap reports being published, and with increased interest in voluntary ethnicity pay reporting and the prospect of disability workforce reporting, employers are feeling the pressure to show that their equity, diversity and inclusion (EDI) strategies are working and their gender pay gaps and other diversity statistics have started to improve. The inquiry’s findings serve as a reminder of the risks of setting unrealistic diversity targets and recruiting and promoting to achieve those targets. 

RAF Recruiting and Selection Non-Statutory Inquiry Report

4. Equality, diversity and inclusion (EDI): Code of practice

The British Standards Institute (BSI) has published a new code of practice on EDI in the workplace.

The BSI has published a code of practice on diversity, equity and inclusion in the workplace. The code provides practical guidance and workplace tools to help employers develop a framework and culture that encourages, promotes and supports EDI in the workplace. 

The code sets out practical measures, including:

• demonstrating leadership buy-in and commitment to EDI at all levels of the organisation 
• recruitment and retention strategies that enhance EDI
• addressing behaviour which is inconsistent with EDI principles through education, understanding and awareness, and supporting people who challenge such behaviour
• identifying appropriate EDI learning and development needs at all levels within an organisation
• recognising, engaging and supporting underrepresented social and cultural group
• setting achievable targets and objectives with clear Key Performance Indicators and data analytics to support continuous improvement
• measuring the organisation’s progress in creating and maintaining an effective culture of EDI

Practical point

The code shows employers how to develop and implement policies and practices to support their EDI aims and objectives in keeping with their existing principles and framework. Employers are encouraged to implement recommendations and guidance that is most appropriate to their organisation in a phased approach so that progress and results can be measured. Watch our short Vimeo for suggestions on how we can help HR departments manage workplace culture and EDI in the workplace.

5. Post-Brexit employment law reform 

On 29 June 2023, the Retained EU Law (Revocation and Reform) Act 2023 (the Act) was passed, making provision for significant changes to the status, operation and content of retained EU law.  

As part of the Brexit arrangements, most EU law in force in the UK on 31 December 2020 was preserved as EU retained law and continued to be interpreted in accordance with EU principles, which has priority over inconsistent domestic law.  The Act ensures that specified pieces of retained EU law will be repealed at the end of 2023, but this does not include any key employment laws. However, from January 2024 the Act will bring an end to the supremacy of EU law, abolish directly effective rights and remove EU interpretative principles from UK law. 

The UK government has powers under the Act to revoke, re-state or amend certain legislation derived from EU law, and to pass regulations to codify any principles of interpretation or case law that it considers desirable to retain in domestic law. These powers last until 23 June 2026 (the tenth anniversary of the referendum).  

Under the Act, the higher domestic courts such as the Supreme Court and Court of Appeal will have wider discretion than previously to depart from case law based on EU principles (such as domestic holiday pay cases) and retained EU case law.  

There is a new reference procedure which enables lower courts or tribunals to refer points of law on retained case law which they consider are of general public importance to the higher courts. There is a also a new procedure for UK or devolved law officers to refer points of law to higher courts after proceedings in the lower courts have concluded, and to intervene in proceedings where a higher court is considering arguments around departing from retained case law. 

Practical point

UK employment laws are heavily affected by retained EU law.  As a result, the Act will have a significant effect on UK employment law by changing the way that EU-derived law (such as the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) and the Working Time Regulations) is interpreted in the UK.  

In addition, the Act will undermine existing case law by creating doubt about the scope, meaning and application of key EU-derived employment rights.  The Act will therefore create uncertainty for UK businesses and could lead to more employment related claims as from January 2024.

Some minor post Brexit changes have already been proposed in the government’s recent “Smarter Regulation” policy paper (including reducing record-keeping burdens and simplifying holiday pay entitlements under the Working Time Regulations, and lifting certain requirements under the TUPE for smaller employers).  But there are still many EU derived laws which will be uncertain unless the government takes steps to make further changes. 

One practical example is the “rolling 90 day period” for collective redundancy consultation purposes (as ruled by the European Court in UQ v Marclean in December 2020) which is directly at odds with the Trade Union and Labour Relations (Consolidation) Act 1992.  

Businesses should keep a close watch on government announcements for any plans to exercise its powers under the Act.