This month’s 'In Brief' is a case law catch up. We’ve handpicked some of the most recent decisions and grouped them by category, so you don’t miss an important decision.

If you want to know more about any of the cases, each has a link to a more detailed case review on the Northern Ireland Employment Law Hub, where you will also find a further link to the full judgement online.

The decisions highlighted in this article cover the issues of Contracts of Employment, Discrimination & Equality, Fire and Rehire, Holiday Pay, Human Trafficking, and Pay.

Human Trafficking, Pay and Diplomatic Immunity

Basfar v Wong [2022] 
This case relates to the potential limitations of diplomatic immunity. A claimant employed by a diplomatic household (originally in Saudi Arabia) moved to the UK where she continued to work. She alleged trafficking as she was confined to the property, had no rest days, no rest breaks, worked long hours and had not been paid for seven months. She ‘escaped’ and raised various claims relating to the lack of pay. The defendant relied upon diplomatic immunity under the Vienna Convention. There is, however, an exception under the Convention relating to commercial activity which is outside the official functions of the diplomat. After debate, the Supreme Court held the claimant’s ‘employment’ to be a commercial activity which did not fall into the category of diplomatic immunity. It will be interesting whether this gives more protection to those employed in diplomatic households in future.

Discrimination and Equality

Mackereth v Department for Work and Pensions [2022]
This case examines how employers manage an employee whose beliefs conflict with organisational policy. The respondent, a doctor employed as a health and disabilities assessor of benefits claimants, stated he could not use gender pronouns, in line with the organisation’s policies, as this conflicted with his personal Christian view that gender could not be changed and was determined instead at birth. The doctor left his employment and lodged a claim of religious discrimination. The Tribunal initially dismissed the claim but on appeal, the EAT disagreed with the threshold used by the Tribunal. The EAT, however, did rule a belief will not receive protection where it ‘destroys’ the protected right of another group. That use of ‘destroy’ is a high threshold thus allowing for greater levels of protection. In this case, however, the issue of whether the belief was protected or not was an academic pursuit as the claimant was unable to demonstrate that he had suffered less favourable treatment due to the belief.

Department for Work and Pensions v Boyers [2022]
Employers need to be aware of the link between absences, disability and dismissal. The respondent was employed for 12 years when she was dismissed. The claimant was absent due to chronic migraines, anxiety, and depression, partly caused by alleged bullying and harassment by a colleague. A work trial at a different site was deemed unsuccessful by the respondent and the claimant was dismissed on ground of capability. A claim for disability discrimination was lodged. At first instance, the Tribunal found the dismissal was unfair and discriminatory. It was not regarded as a proportionate means of achieving a legitimate aim. On appeal, the respondent argued there was no balancing of the respondent’s needs against the discriminatory impact on the claimant. The case was remitted back to the same Tribunal for a fresh determination on proportionality. Again, the Tribunal found the respondent had failed to show the dismissal decision was proportionate. The respondent appealed to the EAT once again.

The EAT stated when it came to justification it was the outcome and not the process that had to be justified. It was held that the Tribunal had engaged upon the balancing exercise when it came to the legitimate aim of the respondent against the discriminatory effect of the claimant. As a result, the appeal was rejected on this ground. The respondent appealed, citing evidence of disability discrimination could only be successful where there were reasonable adjustments possible, and the employer failed to implement them. The EAT held that this was not the case. It was held the lack of reasonable adjustments did not stop a finding of disability discrimination.

Pay

The Harpur Trust v Brazel [2022] 
This long-awaited decision from the Supreme Court is likely to have effect on how holiday pay is calculated for staff who work parts of the year. The claimant, a visiting music teacher on a permanent contract, worked during term time. The Trust used ACAS guidance to calculate holiday pay, while the claimant argued she should receive the average weekly remuneration for the previous twelve weeks. The matter went through various appeals until the Supreme Court made its recent ruling.

Employers may have a list of actions from this decision:

• it is essential to identify staff affected by this decision and use the appropriate holiday pay calculation.
• employers may be required to explain how a part-time member of staff is receiving a greater sum of holiday pay than a full-time member of staff when examined alongside overall earnings.
• employers will also need to be mindful of historic underpayments and look at ways of resolving those matters with employees.

Dowie v Holywood No 1 Limited [2022] 
Employers should beware of slapdash payroll administration. A chef at Stokers Halt in Holywood started on an initial salary of £30 000 per annum but was promoted within a month to Head Chef on £37 000. Delayed payslips, receiving multiple payslips at one time, errors in rate of pay and no tax being deducted were constant issues, despite being escalated to the Director of the Company. The problems were still unresolved when the Director stated kitchen staff would need to be reduced and the claimant offered to resign. The claimant raised a Tribunal claim as he did not receive payment up to his termination date and his payslips evidenced underpayment and lack of deductions during his short employment. The judgment determined there was a haphazard approach relating to pay administration and serves as a cautionary tale for other employers.

Contracts of Employment, Fire & Rehire and Pay

USDAW v Tesco Plc [2022] 
This case offers an insight into collective into contracts of employment and fire and rehire tactics. A recognised trade union reached an agreement for retained pay that would remain for as long as the employee was in their role. In 2010, it was noted as a ‘permanent feature’ of the contractual entitlement, which could only be changed through mutual consent, on promotion or a change to work patterns. In January 2021, however, the defendant stated it was removing retained pay with a lump sum being paid for the entitlement to be removed. If an employee failed to accept that, they would be dismissed and offered new terms. The union escalated the issue to the High Court, who ruled the ‘permanent’ status prevented the respondent from using hire/refire. The respondent appealed to the Court of Appeal, who found the High Court had erred and the 2010 agreement had not considered fire and refire as part of the definition of ‘permanent’. This meant the defendant could give notice under the contract and that the retained pay would only exist for as long as the contract existed. The

Court of Appeal stated it was wrong of the High Court to intervene in this case and that injunctions should not be used to restrict the contractual rights of private employers.

These cases and many more can be found in the Case Law section on the Hub.