Frontline UK Employment Law Update Edition 28 2024 - Case Updates

1. Rentokil Initial UK Ltd v Miller (EAT)
2. Worcestershire Health and Care NHS Trust v Angela Allen (EAT)
3. Omooba v Michael Garrett Associates Ltd (EAT)
4. Hilton Foods Solutions Ltd v Andrew Wright (EAT)

Rentokil Initial UK Ltd v Miller [2024] (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) upheld the Employment Tribunal's (“ET”) finding that offering a trial period to a disabled employee in a different role constitutes a reasonable adjustment, clarifying that such a trial period should not be viewed solely as an information-gathering tool for the employer.

The Claimant, employed as a pest control technician by the Respondent, was diagnosed with multiple sclerosis in March 2017. Despite efforts to accommodate his disability (including adjustments to his working conditions), the Respondent determined by the end of 2018 that the Claimant couldn't continue in his role due to the risks posed by his condition. He was placed on full pay while the Respondent explored alternative positions.

In February 2019, the Claimant applied for a service administrator role but was not offered the position after scoring poorly on tests and an interview. Subsequently, the Respondent concluded that there were no further reasonable adjustments that could be made to his original role, and, as there were no other suitable alternative roles, they dismissed the Claimant, leading him to file claims for failure to make reasonable adjustments, disability discrimination, and unfair dismissal.

The ET upheld the claims, stating that the Respondent’s requirement for field staff to work in their substantive roles disadvantaged the Claimant due to his disability. The ET found that it would have been a reasonable adjustment for the Respondent to have offered the Claimant a trial period in the service administrator role, considering factors such as the junior nature of the role, the Claimant’s relevant experience, and the potential for training.

Although the Respondent appealed, arguing against the necessity of a trial period as a reasonable adjustment, the EAT dismissed the appeal. The EAT confirmed that offering a trial period could constitute a reasonable adjustment, especially when it could prevent dismissal. The burden of proof shifted to the Respondent to demonstrate why offering the Claimant the new role, even on a trial basis, wasn’t reasonable. The ET’s decision to reject the Respondent’s argument that the Claimant was unsuitable for the role was upheld by the EAT.

This case emphasises the obligation for employers to consider and make reasonable adjustments for disabled employees, including (in appropriate cases) offering trial periods for alternative roles. While employers should review their processes to ensure appropriate consideration of trial periods, the obligation to make reasonable adjustments does not mandate offering trial periods in every case.  This decision does not mean that all disabled employees must be offered a trial period in a different role if they are no longer able to carry out their original role. However, employers must objectively assess whether offering a trial period is feasible and gather compelling evidence to justify any refusal to accommodate such an adjustment, particularly when dismissal is a likely outcome for the employee.

Worcestershire Health and Care NHS Trust v Angela Allen [2024] EAT 40 (LINK)

The Employment Appeal Tribunal (“EAT”) has allowed an appeal against the Employment Tribunal’s (“ET”) ruling that the Claimant’s allegations of age harassment and disability discrimination were “conduct extending over a period” for the purpose of determining whether the Claimant’s claims in respect of those allegations were brought in time. 

The Respondent conducted a restructuring exercise which resulted in the Claimant’s role being at risk of redundancy. The Claimant went off sick and was subsequently dismissed, purportedly due to sickness-related absence. She brought a number of claims before the ET, including for age and disability related discrimination. She claimed (inter alia) that the Respondent’s treatment of a grievance raised about her redundancy and an occupational health referral which asked the medical adviser to comment on her “retirement due to ill health” constituted acts of age-related harassment contrary to the Equality Act 2010 (“EqA”), and that her dismissal was discrimination because of something arising in consequence of disability, also contrary to the EqA.

The ET upheld these claims, finding that although only the dismissal fell within the three-month limitation period for bringing them, the two instances of age-related harassment and the discriminatory dismissal were “conduct extending over a period”, so the limitation period ran from the date of the last incident. The ET held that the incidents all related to the Respondent’s change management process and proposed removal of the Claimant’s job and therefore were intrinsically linked with each other.

On appeal, the EAT held that for conduct to have extended over a period of time, it had to involve ongoing discriminatory conduct. It was not sufficient that certain incidents had a link, and that the later events would not have occurred but for the prior events. In this case, different individuals were involved in the alleged age discrimination and the dismissal, and there was a “substantial gap” between the events. Although it may be possible for a conduct extending over a period to include different types of discrimination and/or relate to different protected characteristics, the events found by the ET to form a continuing act in this case involved “different types of prohibited conduct, two different protected characteristics and decisions by different people”, and the ET had failed to identify what the continuing discriminatory conduct had been. In light of this, the EAT overturned the ET’s finding that there was a continuing act of discrimination.

This case demonstrates that a number of acts of discrimination over time may not always amount to “conduct extending over a period” for the purposes of determining whether a claim has been brought within the statutory limitation period. There must be something in the conduct which involves continuing discrimination as opposed to a succession of unconnected or isolated specific acts. Careful factual analysis is required to determine this.

Omooba v Michael Garrett Associates Ltd (T/A Global Artists) and another [2024] EAT 30 (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) held that the Employment Tribunal (“ET”) had been correct to dismiss an actor’s claims for direct religion or belief discrimination, harassment, and breach of contract against a theatre and agency for terminating her contracts in response to a social media backlash concerning her public religious beliefs. 

The Claimant was an actor who was cast for a lesbian role in a theatre production in 2019. The Claimant had previously refused to play certain theatre roles on the basis of her religious beliefs and, in 2014, had made public social media comments that homosexuality is a sin. After the Claimant’s casting for the lesbian role in 2019, a social media storm revolving around her previous public comments led to her contracts with the Respondents (her agency and the theatre) being terminated. 

The Claimant brought claims against the Respondents for direct religion or belief discrimination and harassment, and breach of contract (against the theatre) claiming damages for loss of opportunity. Notably, before the ET hearing, the Claimant stated in a witness statement (having only just read the script for the play) that she would never have played the role she was cast for due to her religious beliefs and would have resigned from the role in any event.

The ET dismissed the claims and made a costs order against the Claimant for her unreasonable conduct and there being no reasonable prospect of success once she realised, she would never have in fact played the role. 

In relation to direct discrimination by the theatre, the ET concluded that the theatre had terminated her contract because of the adverse publicity, reputation of the producers and potential commercial impact of the social media storm, which would likely have led to the forced cancellation of the production, rather than because of the Claimant’s religious beliefs. The ET also found that the agency had terminated the contract because of the commercial risk to the agency, not because of the Claimant’s religious beliefs. The ET also dismissed the Claimant’s harassment claims. It decided that the hostility towards the Claimant on social media was not due to any action taken by the Respondents. Finally, it also dismissed her breach of contract claim because it was the Claimant who was in prior repudiatory breach; she would never have played the role but had failed to inform the theatre, entitling the theatre to dismiss her, and establishing that there was no financial loss suffered. 

On appeal, the EAT upheld the ET’s decision that there was no discrimination. Regarding direct discrimination, the central issue was the reason for the Claimant’s treatment and whether the Respondents had terminated the Claimant’s contracts because of her beliefs, which involves the mental thought processes of the decision-makers. The EAT concluded that if an equivalent threat to production had arisen but related to a different religion or belief, the Respondents would have made the same decision. The Claimant had argued that the ET had failed to distinguish between motives and reasons and that the real motivation for terminating her contract was her belief (even if other motives existed). This was rejected by the EAT; the ET had been clear that, whilst the Claimant’s beliefs formed part of the context, the reason for the decision to terminate the Claimant’s contracts was the adverse publicity caused by her beliefs expressed on social media, rather than because of the beliefs themselves. The EAT also dismissed the Claimant’s appeal in relation to the ET’s findings for her harassment and breach of contract claims. 

This case highlights the significance of being able to show the “reason why” a claimant suffered loss. An employer subject to a direct discrimination claim will need to have strong evidence that the employee suffered loss (e.g. contract termination) because of a factor other than their protected characteristic(s), such as the risk to the commercial viability of a theatre production, to persuade a Tribunal that the protected characteristic is not the real reason. It therefore focuses on the commercial consequences of manifesting a protected belief rather than the manifestation of the belief itself and whether that manifestation is appropriate or not.  This is an unusual, fact specific case and an interesting development in a body of growing case law on the issue of protected beliefs within the workplace. The Claimant is seeking permission to appeal to the Court of Appeal, and we may therefore see further developments on this in the future.

Hilton Foods Solutions Ltd v Andrew Wright [2024] EAT 28 (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) found that an employee who had informally discussed taking parental leave with his employer could proceed with a claim that he had been automatically unfairly dismissed because the reason, or principal reason, for his dismissal was that he “sought to take” parental leave. 

The Claimant was made redundant by the Respondent but believed that the redundancy was not genuine.  He brought a claim for automatic unfair dismissal against the Respondent alleging that the true reason for his dismissal was that he had “sought” to take parental leave.  A dismissal is automatically unfair under section 99 of the Employment Rights Act 1996 (“ERA”) if the reason or principal reason for the dismissal is that the employee took or sought to take parental leave under the Maternity and Parental Leave Regulations 1999 (“MPLR”).

The Claimant had not made a formal request for parental leave but relied on informal discussions about taking parental leave with a number of the Respondent’s personnel including Human Resources and his Line Manager.  These included a conversation with the Respondent’s Managing Director, in which the Claimant said that he would be seeking parental leave.  The Claimant alleged that the Managing Director’s response had been negative and that he had said the Claimant would need to be in the office “Monday to Friday, 8-5pm with no exceptions”.  The Claimant alleged that his suggestion that he was entitled to parental leave was met with foul language. 

The Claimant also alleged he had subsequently emailed Human Resources to set up a meeting to discuss his options with regards to parental leave and reported the conversation with the Managing Director to HR, but that HR had been dismissive of the report.

The Respondent applied to strike out the claim on the ground that it had no reasonable prospect of success.  The Respondent argued that the Claimant had not complied with the formalities set out in the MPLR to exercise the right to take parental leave (including not making a formal request in writing and giving notice) and could not therefore be said to have “sought” to take parental leave.  

The Employment Tribunal (“ET”) rejected the application, holding that the Claimant had arguably “sought” to take parental leave by making informal enquires about taking parental leave on several occasions.  On appeal, the EAT agreed, holding that a wide and purposive interpretation should be applied to the MPLR and on a straightforward reading there is no absolute requirement that an employee must have given notice to have “sought” to take parental leave. The EAT held that the word “sought” is an ordinary English word and the ET is best placed to interpret it, on a proper consideration of all the relevant facts, to determine whether a stage has been reached at which it can be said the employee has sought to take parental leave. 

The EAT also held that it had been Parliament’s intention to limit protection against dismissal to employees who had given notice to take parental leave. This was demonstrated by the inclusion of two concepts in the MPLRs: an employee who has “‘sought” to take parental leave on the one hand, and an employee able to exercise a right to parental leave because the relevant notice has been given on the other.

This case serves as a helpful clarification of the scope of protection given to employees who have sought to take parental leave from both dismissal and detriment under the ERA. An employee does not have to have complied with the formal notice requirements in order to benefit from protection; informal discussions can be sufficient as evidence that an individual has “sought” to take parental leave.