July’s Employment Law Digest – Case Law update

Making reasonable adjustments even in extreme circumstances

The Employment Tribunal decision in Miss M Crew and Miss J Mason v Three Milestone Education Ltd:

• The Claimants were teaching assistants at a school.
• One of the Claimants, Miss Mason, had cocaine delivered to the school during working hours, and asked the other Claimant, Miss Crew, to remove the drugs from her car to stop them being found by a police search of her vehicle which was imminent.
• The school’s code of ethics stipulated that employees ought not to have been involved with drugs at school.
• Miss Mason was disabled with anxiety and depression. When she requested that her mother attend her disciplinary hearing with her as a companion, the school refused.
• Miss Crew and Miss Mason were both dismissed for gross misconduct.

The Employment Tribunal found:

• In relation to Miss Crew, she had been unfairly dismissed for procedural reasons. However as she would inevitably have been dismissed anyway, and due to her own blameworthy conduct, it would not be just and equitable to award her compensation.
• In relation to Miss Mason, the School’s refusal to allow her mother to attend her disciplinary hearing as a companion amounted to a failure to make reasonable adjustments. The School knew of Miss Mason’s disability and allowing her mother to attend would have been an easy adjustment to make. Not making the adjustment put her at a disadvantage. This refusal had the effect of harassing her as it created an intimidating environment during the hearing.

This highlights the importance, even in (on the face of it) clear cut cases, of following fair procedures and making reasonable adjustments whenever possible.

Workplace harassment

In Greasley-Adams v Royal Mail Group Limited:

• The Claimant was a driver who had Asperger’s Syndrome and was disabled.
• Two of the Claimant’s colleagues, Mr M and Mr K, submitted a bullying and harassment grievance against the Claimant which was upheld.
• The Claimant then submitted a grievance against Mr M and Mr K which was dismissed.
• The Claimant brought various claims against the company, including a claim for harassment. He claimed to have experienced unwanted conduct in being singled out and subjected to comments about his disability. He alleged that rumours had been spread, and that colleagues had discussed an incident at work connected to his autism, which was then used to discredit him in the grievance investigation.
• The Employment Tribunal did find that there had been some instances of unwanted conduct, including for example, colleagues discussing the Claimant’s disability and the autism-related incident, however it rejected the argument that those incidents violated the Claimant’s dignity before he became aware of them. It also held that it was also not appropriate for matters disclosed to the Claimant in his bullying investigation to be considered as violating his dignity.

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The Claimant appealed.

The Employment Appeal Tribunal dismissed the appeal:

• The test for harassment is cumulative. A person, ‘A’, harasses another person, ‘B’, if A engages in unwanted conduct in relation to a protected characteristic (here, disability), and that conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. When deciding whether the relevant conduct has that effect, the following matters must be considered:
  • B’s perception;
  • other circumstances of the case;
  • whether it is reasonable for the conduct to have that effect.
• As such B’s perception of the alleged harassment is a mandatory, key component in the question of whether harassment occurred, and without awareness by B, there can be no perception.
• When determining the issue of reasonableness, the Employment Tribunal had also been entitled to take into account other circumstances of the case such as the investigator’s need to carry out the investigation without constraints, and for witnesses to be able to give truthful answers during the investigation. The EAT agreed with the tribunal’s conclusion that once the claimant had become aware of the conduct during the investigation, it was not reasonable for it to have the effect of violating his dignity.

Discrimination: ethical veganism

In Owen v Willow Tower Opco 1 Ltd an employment tribunal decided that a care home worker who refused to have a COVID-19 vaccination did not have a genuinely held belief in ethical veganism. They therefore did not have a protected characteristic under the Equality Act 2010:

• The claimant was a member of bank staff in a care home.
• By June 2021, the care home decided that all staff should be vaccinated against COVID-19. At that time the legislation requiring vaccines for those who worked in care homes had not come into effect.
• In August 2021, the claimant, who had not been vaccinated, raised a grievance. She explained that she was following a vegan diet and as such believed she would be exempt from the vaccine requirement. The claimant also raised concerns about the efficacy of the vaccine and potential side-effects which were at that time unknown.
• The claimant was referred to occupational health to see if there was any reason why she could not have the vaccine for medical reasons given she was following a vegan diet. It confirmed there was no health condition to prohibit her from taking the vaccine.
• Her grievance was not upheld. As she did not have an exemption, she was dismissed after the legal requirement for staff in CQC registered care homes to be vaccinated had come into force.
• She claimed unfair dismissal and religion or belief discrimination.

The Employment Tribunal found:

• That the claimant followed a vegan diet and avoided using some non-vegan products. However, she was unable, or failed to, say anything further about how her life was modified/structured to follow her belief and she was unable to say when she started having a belief in ethical veganism. This was not enough to conclude that she genuinely held a belief in ethical veganism.
• Her main criticisms of the vaccine appeared not to be connected to veganism but that it was experimental and may contravene health and safety legislation. The ET found that this was inconsistent with ethical veganism being a belief; if it was a genuinely held belief, the ET would have expected that to exercise her more than it apparently did in the evidence it heard.

Without more evidence as to the extent of her belief, the ET could not find that she genuinely held a belief in ethical veganism and it dismissed her discrimination claim. The ET also found that she did not have sufficient service to bring an unfair dismissal claim.