Matt's Employment Law and HR Update - 12 January 2022

"Support Gay Marriage" cake case rejected by the European Courts

Is this the final word on the Ashers Baking case, perhaps more frequently referred to as the "Gay Cake" dispute? You may believe you have heard this all before, and that is probably because you have as this case has been making its way through all the courts for a number of years. It first reached the Court of Appeal 6 years ago....

The issue was whether a bakery had acted in a discriminatory way by refusing to supply a cake iced with the message "support gay marriage". The Ashers Baking Co refused to supply the cake based on their Christian belief that marriage must be between a man and a woman.

Showing the unpredictability of the court process, Mr Lee had originally succeeded with his case in the County Court, a decision that was then subsequently upheld in the Court of Appeal.

The Supreme Court?overturned the decisions of the County Court and Court of Appeal, stating that just because the reason for less favourable treatment "has something to do with the sexual orientation of some people" does not mean that the less favourable treatment is “on grounds of” sexual orientation. There must be a closer connection than that.

The SC went on to find that the bakery did not refuse to fulfil the order because of Mr Lee’s actual or perceived sexual orientation. The bakery would have supplied Mr Lee with a cake without the message “support gay marriage” and they would also have refused to supply a cake with the same message requested by a heterosexual customer. The objection was to the message, not the messenger.

The case was then further appealed to the?European Court of Human Rights?and it is that decision that has now been published.

The?ECtHR?has ruled that the further appeal was inadmissible for the reason that Mr?Lee?has only relied on domestic (UK) law throughout the litigation and had not at any stage relied upon European Law. So, it all ends on a bit of a technicality.

What does this mean for?LGBTQ+?rights in the workplace? Well, it further demonstrates the difficulties that the courts have in balancing the protections for people when there are conflicts in beliefs. This is something that employers will need to be increasingly engaged with to avoid conflict in the workplace and potential litigation in the future.

Statutory Sick Pay Rebate Scheme

The government has made regulations to re-introduce the Statutory Sick Pay Rebate Scheme across the United Kingdom, allowing small and medium-sized enterprises (SMEs) to recover up to two weeks' Statutory Sick Pay (SSP) for each employee who is off work due to COVID-19 including those in self-isolation, on or after 21 December 2021. Claims must be made by 24 March 2022. For more details, please visit the government website: Claim back Statutory Sick Pay paid to your employees due to coronavirus (COVID-19) - GOV.UK (www.gov.uk)

Refusing to pay sick pay to non-vaccinated employees

We are seeing more commentary and comment in the press regarding the issue of sick pay and vaccinations, or to put it more accurately, employers who are refusing to pay company sick pay to non-vaccinated employees in circumstances where they are having to isolate due to the lack of vaccination.

The issue of whether people are vaccinated or not has been a contentious issue which has again been highlighted (in admittedly a rather different way) with Novak Djokovic in Australia.

To summarise where we are, the rules at the moment are that:

• Vaccinated employees that come into close contact with someone who has tested positive do not need to self isolate;
• Non-vaccinated employees that come into close contact with someone who has tested positive do need to self isolate for either 7 or 10 days.

Whilst non-vaccinated employees continue to be entitled to receive Statutory Sick Pay under the SSP regulations that were amended in 2020 to provide sick pay in circumstances where someone needs to self isolate but are not themselves unwell, it does not necessarily follow that there is a contractual entitlement to receive additional company sick pay in the same circumstances. The reason for this is that the contractual rules are likely to stipulate that entitlement to receive company sick pay is dependant on actually being unwell, which of course if the employee is simply self isolating because having been in close contact with a positive case of COVID, they are not. They are simply complying with government rules regarding self isolation.

This then leads to some employers deciding that they will not pay contractual sick pay in such circumstances where the employee has made a positive decision not to be vaccinated.

So, this seems quite a straightforward choice then for employee and employer, doesn't it? Well, to an extent yes. But.....

If the reason for the employee not being vaccinated is because of an underlying health condition that is a disability, then the refusal to pay company sick pay will almost certainly be unfavourable treatment arising from disability. Employers do have the opportunity to justify such an approach under the Equality Act 2010, but clearly employers will need to be careful that they do not take such a blanket approach that may disadvantage disabled employees.

If you wish to explore your options in this regard, then get in touch with us in order that we may review your contracts and policies.

Bennett v Mitac Europe?Ltd - Cancer and disability

Cancer is one of the very few conditions that is defined as a disability for the rest of that individuals life for the purposes of disability in the Equality Act 2010. If an individual therefore successfully recovers from Cancer they remain disabled in accordance with section 6 of the Equality Act despite the fact that they may no longer have a condition which has a substantial adverse effect on their ability to undertake day to day activities.

This case though dealt with the question of when this protection commences. The Statutory Guidance states that the protection should be from the "point of diagnosis".

However, in this decision, the Employment Appeal Tribunal stated that:

(i) If a person has cancer but does not seek medical attention, so never obtains a diagnosis, that would not mean that the person did not have cancer and so was not disabled.

(ii) In such a case the person might have difficulty in proving that he had cancer. The diagnosis will often provide the first evidence that the person has cancer. Usually, the date of diagnosis will be the date from which a person is deemed to be disabled.

(iii) If a disability is undiagnosed and unsuspected by the employer it will not be possible for the employer to have discriminated because of it.

(iv) On the other hand, if a person does have cancer, and the employer believes that to be the case, disability and knowledge can be established before a medical diagnosis has been obtained.

The case has been remitted back to the Employment Tribunal to consider this points, alongside a number of other issues.

This is another case which highlights the need for employers to appropriate manage such sensitive health issues. It also works as a timely reminder that employees with cancer are fully protected under the Equality Act 2010

Professional misconduct: Thomas v Education Workforce Council

A rather amusing factual basis to this case! One that perhaps we may have considered on occasions ourselves, but have (quite rightly and sensibly) suitably restrained ourselves. Let me explain.

Mr Thomas applied for a teaching post as a sports lecturer. His application was rejected. He responded to this rejection by email. In his short email he stated:

"Go fuck your self ;)"

His email was forwarded to the Fitness to Practise Committee. The Committee concluded that:

"there was clearly a degree of moral blameworthiness in sending an offensive and inappropriate email of this nature in a professional capacity."

Mr Thomas appealed this decision in the Administrative Courts, but his appeal was rejected in a firm manner. The appeal judge stated:

“The fact that the conduct that is here in question concerns a few words in an email written in a matter of seconds does not prevent it from amounting to unacceptable professional conduct … A 'temporary lapse' is an example of conduct that might not reach the threshold, but everything will depend on the particular facts.”

Now, I appreciate that this is not an employment tribunal matter - or indeed an employment matter - but is rather one of professional conduct. Despite that, this case is still of relevance and interest when assessing misconduct and specifically the nature of email exchanges that employees may have with one another. If you have a problem with the way that people communicate with one another in your business you should clearly set rules and communicate the standards of behaviour regarding email correspondence and be specific about it. This only requires a minor amendment to your disciplinary policy.

Our employer support packages

If you would like information about our employment law support packages for employers (including employment tribunal representation) or about our training for your managers and supervisors then simply get in touch with me directly through LinkedIn or book some time with me in my calendar https://calendly.com/matt-huggett

This article is intended for information purposes only.  It is not intended to provide legal advice and provides information which is correct as at 12 January 2022.  Please contact us for specific legal advice on any of the issues raised in this update. 

Matt Hugett
12 January 2022