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Littler Global Guide - United Kingdom - Q4 2019

Littler Global Guide - United Kingdom - Q4 2019

22 January 2020

Leaked Legal Advice Protected Under Privilege, Court of Appeal Holds
Precedential Decision by Judiciary or Regulatory Agency

Author: Sophie Vanhegan, Partner 

On October 22, 2019, the UK Court of Appeal held that a leaked email, in which in-house counsel told a line manager that the company could use a planned reorganization to dismiss someone with a live grievance, was covered by legal advice privilege and could not be relied upon by the claimant in his disability discrimination and victimization claim. The Court of Appeal held that the email contained advice which employment lawyers give day in and day out where an employer wishes to consider an underperforming employee for redundancy selection. This overturned the decision of the Employment Appeal Tribunal that this was not privileged because it was advice to act in an underhanded or iniquitous way. This decision is welcome news to in-house and private practice lawyers alike in that it reinforces the principle that the legal advice privilege is not something that can be easily circumvented.


Hidden Reason for Dismissal Can Be Attributed to Employer, Even if Decision Maker Was Unaware of It, Supreme Court Holds
Precedential Decision by Judiciary or Regulatory Agency

Author: Darren Isaacs, Partner and Deborah Margolis, Associate 

On November 27, 2019, the Supreme Court held in a whistleblowing claim that the principal reason for dismissal was a hidden reason that had been concealed from the person who made the decision to dismiss, not the engineered reason of the employee’s line manager (which had been the ostensible reason for the decision-maker’s decision). The employee was therefore dismissed for the hidden reason (which was that the employee had made a protected whistleblowing disclosure under UK law), an automatically unfair reason for dismissal.


Employees Can Claim Third-Party Discrimination Only in Limited Circumstances
Precedential Decision by Judiciary or Regulatory Agency

Author: Darren Isaacs, Partner and Mark Callaghan, Associate 

On October 18, 2019, the Employment Appeal Tribunal (EAT) provided useful clarity on the circumstances in which an employee may bring a discrimination claim against their employer for the discriminatory acts of third parties. In this case, the employee, a mental health nurse from a minority ethnic background, was racially assaulted by a patient in circumstances where the employer had failed to prevent and/or protect him against such harassment. The EAT confirmed that an employer will be liable for third-party harassment where the employer has acted (or failed to act) because of the employee’s protected characteristic (and not just failed to act for a nonprotected reason). The employee’s discrimination claim against his employer here failed because the employer’s failings were not themselves connected to the employee’s ethnic background.


Christian Doctor’s Anti-Transgender Views Not Protected, Employment Tribunal Holds
Precedential Decision by Judiciary or Regulatory Agency

Author: Caroline Baker, Partner 

On October 2, 2019, an Employment Tribunal found that a doctor engaged to carry out health assessments for the government’s Department for Work and Pensions was not discriminated against on the grounds of religion or belief by being subjected to disciplinary action for refusing to address transgender patients by their chosen pronoun. While the doctor’s Christianity is protected under the discrimination law, the Tribunal held that the doctor's particular beliefs that God only created men and women and that a person could not choose their gender, and his lack of belief in and conscientious objection to “transgenderism” were views incompatible with human dignity which conflicted with the fundamental rights of others. As a result, such views were not protected religious or philosophical beliefs under UK discrimination law.


Employment Appeal Tribunal: Validity of Defense to Equal Pay Claim
Precedential Decision by Judiciary or Regulatory Agency

Author: Raoul Parekh, Partner 

On October 11, 2019, the Employment Appeal Tribunal held that an employer was entitled to rely on a defense that a difference in pay between a female HR director and the rest of the male executive team was justified until a further decision (or failure to decide) on the female employee’s pay occurred. The initial pay differential was justified by the female employee’s lower experience and reduced importance to the business. The first instance tribunal did not have sufficient evidence to conclude that the justification for the pay discrepancy had expired. Employers will welcome the decision as clarifying that the defense to an equal pay claim remains valid until a discriminatory decision is made (or omitted to be made).