The 10 most important employment law cases of 2021: part two

In the second of a two-part series, Jo Moseley examines five more important tribunal cases from last year that HR and business leaders should be aware of

Menopause: are symptoms a disability in law? 

To bring a disability discrimination claim, an employee must show they have a mental or physical condition, which has a substantial and long-term effect on their ability to carry out normal 'day-to-day' activities. These can include an inability to sleep or concentrate. Substantial is something more than trivial and, long-term means it has, or is likely to, affect an individual for more than a year. 

In Rooney v Leicester City Council the EAT held an employment tribunal erred in law in holding that a woman who had severe peri-menopausal symptoms was not a disabled person. She suffered from insomnia, lightheadedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes – these symptoms had a negative impact on her life. 

Why it matters

Most women affected by menopause (those aged 50 to 64) are the fastest growing economically active group in the UK. Around 70 per cent of working women in the UK (almost 4.5 million) are in this age bracket, and that number is set to increase. More women will therefore transition to the menopause while working and employers that fail to support them through this process will lose their skills and expertise.

There has been a steady increase in the numbers of women bringing employment tribunal claims against their employers alleging they have been mistreated at work because of their menopausal symptoms.

It's also possible that menopause will be add to the list of protected characteristics in the Equality Act which will be a game changer. We are expecting a Women and Equalities Committee report on how menopausal women are treated at work and what steps need to be taken to protect them this spring.   

Indirect discrimination: can employees bring associative discrimination claims?

An employee can bring a direct discrimination or harassment claim if they have been discriminated against because they associate, or are connected, with someone with a protective characteristic. 

The ECJ expanded the concept of associative discrimination to allow employees who are disadvantaged by a workplace provision, criteria or practice to bring indirect discrimination claims even if they didn't have the protected characteristic which caused the disadvantage – provided they were also impacted by it. But, that concept had not been tested in the UK and the Equality Act has not been amended to include associative discrimination in these types of claims. 

In Follows v Nationwide Building Society, an employment tribunal upheld a claim of indirect associative discrimination on the grounds of disability. The claimant, Mrs Follows, wasn't disabled but she cared for her mother who was. After a restructure, she wasn't able to comply with a new requirement to work in the office on a full-time basis to effectively supervise junior staff. 

The tribunal accepted Follows’ argument that carers are less likely to be able to be office-based than non-carers. This put her at a substantial disadvantage because of her association with her mother's disability and Nationwide had not been able to objectively justify its treatment of her.

Why this matters

Employment tribunals do not create precedents that are binding on other tribunals and courts. However, this case suggests that tribunals may be willing to make similar findings – particularly where carers of disabled people are disproportionately impacted by workplace policies which require them to work full-time and/or in an office. 

It therefore makes sense to help staff manage work around their other commitments by offering flexible or agile working (where appropriate) and exploring other options to help them remain in work. 

Redundancy: do employees have a right to appeal?

The Acas Code of Conduct on Disciplinary and Grievance Procedures requires employers to take certain steps before dismissing an employee – including giving them the right to appeal against their dismissal; however, this doesn't apply to redundancy dismissals.

In Gwynedd Council v Barratt and Hughes, the Court of Appeal had to determine if two employees made redundant were unfairly dismissed because their employer did not allow them to appeal against their dismissal. On the facts, it held that their dismissals were unfair because the employer had circumvented the established way of dealing with redundancies (consultation, pooling, selection criteria and looking for suitable alternative employment) by putting staff on notice that their jobs were at risk and requiring them to apply for vacancies. 

Why this matters

This decision doesn't mean employers must always allow employees to appeal against their redundancy as a final stage in the process. If they have properly consulted about the redundancies (both collectively and individually) their staff will have already had the opportunity to challenge their selection and ask to be considered for alternative roles. In those circumstances, they may decide not to offer an appeal to avoid going over the same ground. 

But, offering an employee the right to appeal against a redundancy dismissal will strengthen their case that a dismissal for redundancy was fair. And, it's also been held that where the employer does provide an appeal, the usual rule applies that a fair appeal can, if necessary, cure an unfair initial decision. That's why many employers err on the side of caution and offer appeals even where they have properly consulted individuals and given them the opportunity to challenge their selection at an earlier stage in the process.

Collective bargaining: when can employers make direct offers to staff?

In Kostal v Dunkley, the Supreme Court had to decide when an employer, operating within the context of a unionised workforce, can lawfully approach its staff direct to try and reach agreement where negotiations with the union have failed.

It held that employers can only lawfully approach staff direct to try and impose new terms and conditions once they have followed and exhausted the agreed collective bargaining agreement. 

Why this matters

This decision doesn't mean that unions can veto any changes to terms and conditions of employment they don't support. Employers can approach staff who are union members to try and agree terms provided they have followed all of the steps set out in the collective agreement. But they must have reached this point and be able to show that they genuinely believed that the collective process had come to an end. They can't shortcut the process even if it's obvious that the union will not support the changes they want to make. 

Even if it doesn't look as though they are going to reach an agreement with the union and are close to exhausting the process, we recommend that they take legal advice before they decide to approach union members direct. The financial consequences of getting this wrong are, potentially, very large. Awards are fixed and tribunals can't reduce them like they can in other claims. 

Equality: gender critical beliefs

The EAT in Forstater v CGD Europe and others held that a belief that biological sex is real, important, immutable and can't be conflated with gender identity is a philosophical belief protected under the Equality Act. 

Why it matters

This decision has to be seen in the context of the highly charged (and in some cases toxic) debate around trans rights. The law now protects both those people who believe in gender identity and those who hold gender critical beliefs. But that doesn't mean that either group is free to act on their beliefs in the context of work and, for example, to harass or bully those who hold different views. So, people who hold gender-critical beliefs can't misgender trans people with impunity. Nor should those who believe in gender identity accuse colleagues of being transphobic simply on the basis that they take a different viewpoint. 

This can be a difficult path to navigate, particularly if employers have groups of people in their organisation with polarised views. They should not impose blanket restrictions preventing staff from expressing their views but they can (and probably should) remind them that they expect all staff to treat each other with courtesy and respect. It's also helpful to remind them about what could happen if they step over the line. 

Catch up with the first part of this two-part series.

Jo Moseley is an employment law solicitor at Irwin Mitchell