Important Case Law Updates and What They Mean for Employers 

In the UK, employment legislation comprises of primary legislation (Acts of Parliament setting out the Key Principles of law), secondary legislation (more detailed legislation, usually within a “parent act”) and case law.  

Case law evolves over time as cases are brought before an employment tribunal and are appealed through the hierarchy of courts. Cases brought before a tribunal help to understand the interpretation of the law and due to the defined hierarchy, cases heard by a court at a lower level, must be judged on the basis of any precedents set in a similar case, as decided by a higher court (if applicable).  

It is important for employers to be aware of case law updates, as it may determine how they deal with employment matters in the workplace and ensures that these are handled in the correct way. This blog is intended to provide an overview of recent case law updates and implications for employers moving forward.  

What important cases have we seen this year?  

Dr David Mackereth v The Department of Work and Pensions  

Dr David Mackereth was dismissed by his employer for refusing to use transgender service users preferred pronouns. Mackereth raised a claim for religious discrimination and harassment, on the grounds that according to his religious beliefs a person cannot change their gender. The employment tribunal originally found that his biblical beliefs were “incompatible with human dignity and conflict with the fundamental rights of others” and therefore did not meet the criteria of a philosophical belief and was not protected under the Equality Act. Mackereth appealed this decision. 

The Employment Appeal Tribunal (EAT) found that the Employment Tribunal (ET) had erred in its approach to the claim and their findings that Mackereth’s beliefs were not a philosophical belief. The EAT did however agree that the ET had properly considered the context in which he expressed his beliefs, and a distinction could be made between his beliefs and the way he expressed them.  

The decisions to dismiss was found by the EAT not to be due to holding the beliefs, but to the context of how the beliefs were expressed and the potential impact this could have on vulnerable service users. The EAT therefore agreed with the ET’s findings that the decision to dismiss was a proportion means of achieving a legitimate aim.   

Key Points from this Case:  

• Whilst Mackereth failed in his claim for direct discrimination, employers should be cautious around things which could be considered a philosophical belief and thus protected under the Equality Act 
• A distinction can be made between holding a belief and how this is expressed, and employers may take action if this has the potential to impact others, particularly where it involves vulnerable individuals  
• Asking an employee to use preferred pronouns was not discrimination due to his beliefs, it was a request on the basis of how an individual wanted to be addressed   

The Harper Trust v Brazel  

Ms Brazel was a music teacher who worked part of the year, working during school term time only. As she only worked part of the year, the school had applied the principle of accruing her holidays on the basis of her actual working hours and giving her a proportion of the 5.6 weeks holiday under the working time regulations, using a calculation of accruing 12.07% of her working hours as holiday pay. The ET originally dismissed her case, ruling that the correct method of calculating holiday pay had been applied.  

The ET’s ruling was overturned by the EAT and then heard by the Court of Appeal. The outcome of the findings were that nothing within the working time regulations suggested that term-time workers should receive pro-rata of the 5.6 weeks and holiday pay should be calculated using average earnings over a 12-week period (now 52 weeks). The supreme court then heard this and voted again in Brazel’s favor.  

The implications of this for employers is significant, and it will continue to be a challenging area to navigate. The case considers the position of permanent employees who are term time workers and therefore this would not be applicable to individuals on fixed term contracts or those who start or leave within the holiday year. It does however raise a question around calculation for those on zero hours contracts and how this should be calculated moving forward, as it may no longer be appropriate to use the 12.07% calculation.   

Key Points from this Case:  

• Employees who are permanently employed are entitled to 5.6 weeks holiday per year, regardless of whether they only work during term time or if there are weeks when they do not complete work.  
• Holiday pay for those on variable hours should be based on the average earnings over a 52-week period (excluding weeks when no work was completed)  
• It is not appropriate to use a calculation of 12.07% of hours worked for accrual or holiday pay for individuals working variable hours or part of the year, if their contract is in place for the full year   

Burke v Turning Point Scotland  

Mr Burke was a caretaker for Turning Point Scotland and had suffered from Covid-19 and following the initial isolation period he had lingering symptoms of fatigue and experienced severe headaches, which were attributed to long Covid. The symptoms experienced were significantly impacting his day-to-day life. Burke was absent from November 2020 and never returned to work, he was dismissed in August 2021, following two occupational health reports, both concluding it was unlikely he had a disability under the Equality Act. Burke raised a claim for disability discrimination, among various other claims.   

Turning Point Scotland attempted to have the claim for disability discrimination struck out, arguing that long Covid would not be considered to be a disability under the Equality Act. The tribunal found that in these circumstances long Covid met the definition of a disability under the Act, in that it was a physical or mental impairment which had a substantial and long-term adverse effect on his day to day life.    

Covid-19 has brought new challenges to the employment landscape, particularly in relation to long covid and whether this would be considered a disability, and therefore protected under the Equality Act. The findings of the Burke v Turning Point Scotland case, provides clarity that long covid could be considered a disability. 

It is important to note that long Covid being a disability was very much dependent on the specific circumstances of the case and as this is a first instance decision at an Employment Tribunal, it would not therefore be binding on tribunals moving forward.  

Key Points from this Case:  

• Long Covid could considered to be a disability under the Equality Act  
• Whilst medical input can be beneficial, an employment tribunal is not bound by the findings in a medical report and the question of a disability is a legal question for a tribunal to determine  
• Employers should exercise caution when dealing with cases of long Covid, treating this as they would any other disability. 

How can AAB People help?  

Employment Legislation can be difficult to navigate, particularly in relation to how case law may impact your business. If you have any questions on any of the above and how this could apply to your organisation, please do not hesitate to get in touch with a member of the AAB People Team.