October 12, 2022

U.K. Employment Law Update: Whistleblower Dismissal, Belief Discrimination and Long COVID

Dismissal of Whistleblower Was Not Automatically Unfair

In Kong v Gulf International Bank (UK) Ltd [2022] EWCA Civ 941, the Court of Appeal considered whether the dismissal of a whistleblower was automatically unfair.

Ms Kong was employed as the Head of Financial Audit at Gulf International Bank (the Bank). She raised concerns with the Head of Legal, Ms Harding, about the suitability of a legal agreement (concerns which were accepted as amounting to protected disclosures for the purposes of whistleblowing legislation). Ms Kong also questioned Ms Harding’s legal knowledge which upset Ms Harding, who felt her professional integrity was being called into question. The Bank dismissed Ms Kong due to her conduct which it asserted had resulted in colleagues not wanting to work with her. Ms Kong brought a claim for automatic unfair dismissal for having made protected disclosures (i.e., a whistleblowing claim).

The Court of Appeal held that there can in principle be a distinction between the protected disclosure of information and the conduct associated with the making of that disclosure. The reasons behind the employer’s decision to dismiss must be evaluated carefully to establish whether they can be fairly and sensibly separated from the protected disclosure. There is no objective standard for making such an assessment; it is a question of fact. In this case, the court found that what motivated the employer’s decision to dismiss was not Ms Kong’s disclosure but the inappropriate way she had conveyed her criticisms of Ms Harding.

While this case will no doubt be welcomed by employers, it is important to remember that any decision to dismiss a whistleblower will always carry some inherent risk.

Doctor Who Refused to Use Preferred Pronouns Was Not Discriminated Against

In Mackereth v Department for Work and Pensions and anor [2022] EAT 99, the Employment Appeal Tribunal (EAT) considered whether requiring a Christian doctor to use preferred pronouns was unlawful discrimination on the grounds of belief.

Dr Mackereth began employment with the Department for Work and Pensions (DWP) as a health and disabilities assessor. During his induction, he stated that he would not use the preferred pronouns of transgender users as required by the DWP’s diversity and equality policy because his belief as a Christian was that a person cannot change sex or gender (although he accepted that this belief was not shared by all Christians). The DWP tried to accommodate Dr Mackereth’s position by considering whether he could be placed in a non-customer-facing role or ensuring that he only assessed non-transgender service users but found this to be impracticable. Dr Mackereth left the DWP’s employment and brought claims of discrimination on the grounds of belief.

The EAT held that the threshold for determining whether a belief is a protected characteristic is set low in order to protect minority beliefs, even where those beliefs might offend others. As such, Dr Mackereth’s belief was a protected characteristic. However, the EAT found that he had not been discriminated against. This was because the DWP’s policy that assessors had to use service users’ preferred pronouns was necessary and proportionate to achieve the legitimate aims of ensuring that potentially vulnerable service users were treated with respect and did not suffer discrimination.

This decision suggests that although such minority beliefs of employees are capable of protection, they may not give rise to rights that override justifiable legitimate policy requirements of employers.

Long COVID Can Be a Disability

In Burke v Turning Point Scotland [2022] SLT 33, a Scottish Employment Tribunal considered whether an employee with long COVID symptoms was disabled within the meaning of UK anti-discrimination law.

Mr Burke was employed by Turning Point as a caretaker. He tested positive for COVID-19 in November 2020 and did not return to work until he was dismissed due to ill-health in August 2021. Mr Burke claimed he suffered from the physical impairments of long COVID including extreme fatigue, lack of mobility, severe headaches and sleep disruption. He brought a claim against his employer for disability discrimination in which the first issue to be determined was whether or not he was disabled for the purposes of U.K. anti-discrimination law.

The Tribunal held that Mr Burke was disabled. It found his physical impairment met the definition of disability as it had a substantial adverse effect on his day-to-day activities and was likely to last for twelve months. This was despite the fact that the severity of his symptoms fluctuated, that Occupational Health assessments had concluded him fit to return to work and that his condition had not yet lasted for twelve months. His sick pay had ceased around June 2021 and so Mr Burke had no incentive to continue to remain off work from that point. As such, Mr Burke could proceed with his claim for disability discrimination.

While this is a first instance decision and therefore not binding, employers should be mindful of the issue of long COVID and related long-term absences amongst their workforces.

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