Employment tribunal and court judgments | September 2024

In 2018, Mr Thomas was contracted through an employment agency to provide consultancy services to the Surrey and Borders Partnership NHS Foundation Trust. Shortly before the contract was set to end, he was informed that the agreement was being terminated due to his failure to disclose an unspent conviction.

Mr Thomas argued that the real reason for his dismissal was his philosophical belief in English nationalism and political association with the English Democrats. Consequently, Mr Thomas alleged discrimination based on religion or belief under the Equality Act 2010.

English nationalism as a protected belief

As a preliminary issue, the employment tribunal had to consider whether Mr Thomas’ belief in English nationalism was a protected belief under the Equality Act 2010.

The tribunal found that English nationalism could be considered a protected belief, insofar as it can be interpreted as a general belief in the cultural, linguistic, and historical unity of English people and England as a nation. On that basis, Mr Thomas’ belief in English nationalism was likely to have been capable of protection in law.

Anti-Islamic views

While English nationalism was capable of being a protected belief, the tribunal had to consider whether Mr Thomas held anti-Islamic views and, if so, whether those anti-Islamic views met the threshold to be a protected belief.

The tribunal examined Mr Thomas’ belief in light of the fifth criteria of the Grainger test ([2010] ICR). This part of the test states that if a belief is to be protected, it must be worthy of respect in a democratic society, must not be incompatible with human dignity, and must not conflict with the fundamental rights of others. This rule is based on Article 17 European Convention on Human Rights (ECHR) which says that a person cannot claim the protection of human rights (e.g., freedom of expression), where to do so would allow the performance of any act “aimed at the destruction of any of the rights and freedoms” of others.

The tribunal found that Mr Thomas did hold anti-Muslim and anti-Islamic beliefs which included a belief that there was no place in British society for Muslims or Islam, and that Muslims should be forcibly deported from the UK.

Therefore, the tribunal held that this part of his belief fell foul of the test in Grainger and was not protected.

The appeal

Mr Thomas appealed to the Employment Appeal Tribunal (EAT).

The EAT agreed with the tribunal. The EAT found that the forcible deportation of Muslims from the UK, as per Mr Thomas’s belief, would undoubtedly amount to the destruction of their rights and that his language clearly fell within “hate speech”.

The EAT noted that while the threshold for protection of belief is low, the tribunal was right to find that Mr Thomas’ belief did not pass that threshold.

Comment

The decision of the EAT is particularly timely in light of the rioting seen during the summer related to English nationalism and similar groups. The decision confirms that while English nationalism may be capable of protection, anti-Muslim and anti-Islamic beliefs similar to those held by the claimant will likely fall outside of the scope of protection.

In Forstater, it was stated that the only beliefs falling foul of protection would be those which are “an affront to Convention principles in a manner akin to that of pursuing totalitarianism or advocating Nazism, or espousing violence and hatred in the gravest of forms”. Sheldon J, reflecting on this, stated (obiter) that this stipulation in Forstater might not be the last word on the matter and it may be that beliefs espousing intolerance and discrimination could fall outside of protection. While Sheldon J’s comments weren’t binding, they are made within the context of a long line of cases on protected belief in recent years. We await to see how other appellate courts and the EAT continues to deal with such instances.

This decision signals the dangers of “googling” a candidate and highlights the various risks in respect of discrimination and processing personal data.

Background

Mr Ngole was a social worker and applied to be a mental health support worker with a mental health charity, Touchstone. He was offered the job subject to DBS checks and references. His references were not sufficiently detailed, so Touchstone therefore conducted an internet search to find out more about him. This search revealed he had been previously dismissed from a university course after expressing certain religious views on social media disapproving of homosexual acts.

The charity was worried that Mr Ngole’s values did not align with theirs, and in particular were concerned about the impact on LGBT+ service users. They therefore withdrew the conditional job offer. After Mr Ngole challenged this, Touchstone offered a second interview but were not persuaded to reconsider their position and did not reinstate their job offer. Mr Ngole therefore brought a range of discrimination claims against Touchstone.

ET decision

The tribunal had to balance Mr Ngole’s rights to freedom of expression against Touchstone’s objective of protecting others. Whilst this objective was legitimate, the tribunal found that the withdrawal of the offer prior to the second interview was not proportionate as there were less intrusive options available. It was therefore found that the withdrawal of the job offer amounted to direct discrimination on the grounds of Mr Ngole’s religious beliefs. However, Mr Ngole’s other claims failed, including those about the requirement for a second interview and Touchstone’s refusal to reinstate the job offer.

Practical implications

This case demonstrates that online “due diligence” is risky. From an employer perspective, it is best practice to only use the information that you have told candidates you will use to make a decision. Further, if you find out information about candidates’ views that raises concerns, consider the below criteria, which the EAT has previously identified as likely to be relevant when assessing whether an interference with the right to freedom or belief and expression is proportionate:

• The interference in the expression of a protected belief should always be done in the least intrusive way possible to achieve the objective in question.
• The content, tone and extent of the statement or action in question are relevant.
• The likely audience of the statement or action should be considered.
• An employer should consider whether the employee has stated that the views expressed are their personal views, or whether they may present a reputational risk to the organisation.
• The nature of the employer’s business and whether the statement or action in question may impact its ability to run that business are relevant.

From a data protection perspective, there are steps that can be taken to mitigate the risks of breaching GDPR. Where vetting results in adverse information, the applicant should be made aware of this and provided with an opportunity to make representations to certify that the information is accurate.

Factual background

In 2007, Tesco restructured its distribution centres which included closing some centres. Tesco tried to encourage those employees to relocate to other sites by offering them a salary enhancement known as “Retained Pay” (“RP”).

Tesco made a collective agreement with the Union of Shop, Distributive and Allied Workers (“USDAW”) to provide RP to employees who agreed to relocate. The right to receive RP was expressly incorporated into the employment contracts where RP was to “remain a permanent feature” of an employee’s contractual entitlement subject to certain qualifications.

Another term in the employment contracts gave Tesco the right to dismiss the employee without cause subject to notice.

In 2021, Tesco tried to end RP. Employees were told that if they did not consent to the removal of their right to receive RP, they would be dismissed and offered re-engagement. The re-engagement terms would be the same as before, but without the RP term.

USDAW and employees applied to the High Court for an injunction to stop Tesco from terminating their employment to remove the RP term.

In the High Court, Ellenbogen J granted the injunction, but the Court of Appeal later allowed Tesco’s appeal. The claimants appealed to the Supreme Court.

Supreme Court decision

The Supreme Court allowed the appeal.

The Court held that the reference to RP as a “permanent feature” of employees’ contractual entitlement meant that RP should continue to be paid for as long as an employee remains employed by Tesco in the same role. It was not time-limited.

The Court also found that there was an implied term that Tesco could not use its power to dismiss employees on notice in order to remove their entitlement to RP. To allow otherwise would have undermined the intention of both parties at the time they entered into the collective agreement.

Consequently, the injunction granted by Ellenbogen J in the High Court was reinstated to prohibit Tesco from using fire and re-hire to remove the RP term. Damages were not awarded by the Court as their calculation would have been inadequate and speculative.

Comment

This case is a reminder for employers to be cautious when promising benefits and enhancements, particularly those which are framed as “permanent”. The promise by Tesco in this case for a permanent pay enhancement made it incredibly difficult to make decisions in the future concerning these employees despite circumstances changing.

Employers may still be able to use dismissal and re-engagement to change terms, but as this case shows, there are significant legal and reputational risks if some contractual entitlements are conferred permanently.

In R (TTT), the court shed light on how the courts will weigh up individual protections afforded under the law against wider aims to promote integration. You can read our analysis here.

Meanwhile, the Court of Appeal confirmed that employers must take reasonably practical steps to ensure the safety of each and every employee (and not just the majority). See our commentary here.