Monthly Bulletin – December 2024 – Practical Perspectives 

Anti-Islamic aspects of Claimant’s belief in English nationalism not a protected belief under Equality Act 2010

Anti-Islamic Views in English Nationalism Denied Protection under Equality Act 2010

Under Equality Act 2010 employees have protection against discrimination on grounds of ‘religion or belief’. Whether or not a person’s views should be regarded as a ‘protected belief’ is often a contentious initial issue. Tribunals are guided by principles set out by the Employment Appeal Tribunal in Grainger v Nicholson – principles which the EAT had to consider in a recent case involving a belief in English nationalism.

In Thomas v Surrey and Borders Partnership NHS Foundation Trust, the Claimant said that his assignment had been terminated by the Respondent because of his belief in English nationalism. As a preliminary issue, the employment tribunal considered whether his belief was a ‘protected belief’ under Equality Act 2010. 

Tribunal Criticised for Failing to Consider Reasonable Adjustment in Disability Dismissal Case

The tribunal held that, although many aspects of the Claimant’s belief in English nationalism would have been found to be protected by Equality Act 2010, his belief included anti-Islamic beliefs. He believed that there was no place in British society for Muslims or Islam itself and that Muslims should be forcibly deported from the UK. The tribunal held that his belief fell foul of the fifth criteria from Grainger v Nicholson: that the belief must be worthy of respect in a democratic society, must not be incompatible with human dignity and not conflict with the fundamental rights of others. The Claimant’s belief was not protected. The Claimant appealed.

The Employment Appeal Tribunal agreed with the tribunal. UK law had to be interpreted, insofar as possible, in accordance with the European Convention of Human Rights (the Convention).  Article 17 of the Convention states that a person cannot claim the protection of the Convention where to do so would allow the performance of any act “aimed at the destruction of any of the rights and freedoms” set out in the Convention. The EAT noted that forcible deportation of Muslims from the United Kingdom would undoubtedly amount to the destruction of their Convention rights. The language used by the Claimant fell within the grave forms of “hate speech” which are not protected under Equality Act 2010.

The EAT held that, whilst the threshold for protection under the Convention, and therefore under Equality Act 2010, is low, the tribunal was right to find that the Claimant’s beliefs did not pass that threshold.

Tribunal erred by failing to consider if it was a reasonable adjustment to hold off dismissing disabled employee until merger was completed

Where an employer knows (or reasonably ought to know) that an employee is disabled, the duty to make reasonable adjustments is engaged. Employers must take reasonable steps to remove any disadvantage at which an employee is placed by reason of their disability. A recent EAT case looked at whether it could be a failure to make reasonable adjustments where an adjustment was raised at appeal stage. 

In Cairns v Royal Mail Group, the Claimant was employed as a postal delivery person on outdoor duties. A knee injury and osteoarthritis (a disability) meant he could no longer work outdoors. He moved to a supernumerary indoor role for a period. The Respondent began a consultation to dismiss him on grounds of ill-health retirement. He could no longer do his outdoor job. At the time, no other indoor vacancy existed. The Claimant was dismissed. 

He claimed unfair dismissal. He also claimed that failing to wait, at appeal stage, for the imminent merger of the Claimant’s postal centre with another centre (which would have created indoor roles), was a failure to make reasonable adjustments and discrimination arising from a disability. The employment tribunal dismissed all claims, holding that there comes a time when a surplus job must come to an end.

The Claimant appealed the outcome on discrimination. The Employment Appeal Tribunal, allowing the appeal, held that the tribunal had focused too much on the situation at the time of dismissal. In doing so it had failed to consider an essential part of the Claimant’s case: that the Respondent ought, at the time of his appeal, to have kept him in employment so that he could be assigned to an indoor role on the merger of the two postal offices.

Recruitment Based on Team ‘Fit’ Deemed Discriminatory, Costs Employer £95,000

Recruitment decision made based on who would ‘fit in’ with the team found to be discriminatory 

Employers need to be able to demonstrate that decisions on recruitment have been made fairly, based on criteria which have been applied to all applicants. Allowing subjectivity to creep in risks any decision taken being challenged as discriminatory. This happened in the recent case of James & Saine v London & Quadrant Housing Trust. The Respondent advertised three vacancies for leadership positions. There were six internal candidates, three were white and three were black (and/or black/white mixed). The Respondent appointed two white candidates. The two claimants (who were both black) were not appointed. The Respondent decided to re-advertise the third vacancy externally despite having found that that the Claimants were not ‘not appointable’ to it. The Claimants claimed that the decision not to appoint them was direct race discrimination. The tribunal agreed. The Respondent based its decision on who to appoint on a subjective view of who would ‘fit in’, rather than objectively considering qualifications and suitability for the job. The tribunal stated, “basing recruitment decisions on subjective views, or gut feelings, increases the risk of stereotypes and unconscious bias coming into play”.

The oversight was a costly one for the Respondent, who ended up paying out £95,000 in compensation to the two claimants. 

This case reminds HR teams that recruitment processes must be free from discrimination and minimise the risk of unconscious bias. Recruitment and interview processes should be reviewed to make sure that they stand up to scrutiny and are based on an objective assessment of suitability.

Warehouse Worker’s Discrimination Claim over ‘Willy’ Nickname Dismissed as Frivolous

And finally, a warehouse worker has lost his discrimination claim after complaining about his boss being called ‘Willy’. In Aylmer v Dnata Catering, the Claimant objected to his boss William McGinty referring to himself as ‘Willy’. The Claimant asked his boss to avoid using the name because of its other common use as a slang term for penis. He said in an email to his boss: “If you don’t remove it and keep insisting on being called that – I consider it as sexual harassment.” When his complaints were not followed-up, he claimed that he had been victimised on the basis that his initial complaints related to sexual harassment. 

Unsurprisingly, the tribunal rejected his complaint. The employment judge ruled that Willy is a “common abbreviation” for William and the Claimant’s complaint about using that abbreviation was not a ‘protected act’ (on which the Claimant could base a claim of victimisation).

Perhaps it is a sign of the times that a once common abbreviation of the name William could, today, be regarded by someone as ‘disrespectful’ and ‘less than human’. Luckily, common-sense prevailed before the tribunal and the claim went nowhere.