The top employment law cases schools and colleges need to look out for in 2024
We’ve identified the cases which could have a big impact on the education sector over the next 12 months.
- Religious or belief discrimination
- Holiday pay and entitlement
- Protection from detriment for participating in trade union activities
- Dismissal and re-engagement (“fire and rehire”)
1. Religious or belief discrimination cases
It’s not easy to deal with fundamental difference in values or beliefs that emerge between colleagues, particularly where there are strong feelings on both sides. This can often lead to grievances and claims.
Teachers and support workers have an absolute right to hold protected beliefs, but do not have the same absolute right to express those beliefs. Employers can impose restrictions on what workers can say, but only if it's appropriate to do so and they can justify their approach. This is a difficult balance to strike.
Over the last few years, we’ve seen a sharp increase in the numbers of claims brought by staff who allege they have been dismissed, undermined and/or treated unfairly for expressing, so called, gender critical beliefs ‘GC’ (the belief that sex is immutable and can't be changed). This issue has been particularly charged in the education sector. Last week Professor Jo Phoenix won her discrimination case against the Open University after she was forced to resign following a campaign of harassment directed at her and others who held GC beliefs. The Open University has two other similar claims pending (which may be heard this year) and there are other claims against different educational institutions in the pipeline.
There's often a lot of publicity around these claims. Many claimants crowdfund to pay for legal advice and representation. And the journalistic organisation, tribunal tweets, live tweet cross examination of parties involved in many GC cases to a huge audience.
Particular cases to note include:
- Higgs v Farmor’s School concerned a Christian employee who was dismissed after expressing views on her own social media profile that can broadly be described as GC. The school said that it had dismissed her because of the way she expressed those beliefs which, it said, suggested that she was homophobic and transphobic. However last year the EAT allowed Mrs Higgs appeal because the tribunal had not considered whether the school's decision had arisen out of Mrs Higgs' belief (which was protected) or by a justified objection to that belief (which wasn't). The school has asked for permission to appeal to the Court of Appeal. If that is granted, we should get guidance on this difficult issue. You can read the full background, please see our earlier blog post here.
- Bailey v Stonewall Equality Ltd & ors concerned a lesbian barrister was discriminated by her chambers because of her gender critical beliefs and views about Stonewall. Her argument that Stonewall had instructed, caused or induced her chambers to discriminate against her failed and that part of the decision has been appealed. On 14 May 2024 the EAT will consider whether Stonewall crossed a line between lawful protest and unlawful inducement. This will put the spotlight on the Stonewall diversity scheme which many organisations in the education sector are part of. You can read the background to the case in our earlier blog post here.
- Randall v Trent College & ors involved a school chaplain who was dismissed after he delivered a controversial sermon on an LGBT issue. The ET found that the chaplain had not been dismissed because of his beliefs but because of the way he had manifested those beliefs. The chaplain has appealed and the EAT will consider it later this year.
Why it matters?
Employers are finding it increasingly difficult to know how to deal with complaints made against or by staff whose beliefs conflict with those of their organisation, other staff or its service users. It is difficult to draw firm conclusions because each case is fact sensitive. But the decision in Higgs is important because the EAT set out basic principles that apply to all employers who wish to restrict what their staff can say about their protected beliefs both inside and outside work. If the Court of Appeal do hear the appeal, we may get further guidance.
2. Holiday pay and entitlement cases
Significant changes to holiday pay and entitlement came into force on 1 January 2024 (with some of the changes taking effect for holiday years that start on or after 1 April 2024).
Key changes include:
- Defining a new class of workers: “part-year workers” and “irregular-hours workers”. New rules set out how holiday accrues for these workers and employers will now also be able to roll up their holiday pay if they want to.
- Providing clarity on when workers can carry holiday from one year to the next
- Defining “normal pay” to include overtime, commission and other payments
- Changes to record keeping rules
You can read more detail on these changes here.
Why it matters?
The creation of a new class of workers was made to overcome the perceived unfairness of the Supreme Court's decision in Brazel v Harpur Trust which said that schools and colleges can't pro-rate statutory holiday for term-time workers to reflect the number of weeks worked each year. However, the definition of part-year worker is ambiguous and recently published non-statutory guidance suggests that term-time workers who are paid in twelve equal instalments will not meet this definition (see the example of ‘Ian’).
This will create legal uncertainty (the last thing this sector needs) and the law will have to clarified through individual cases, which will have to be appealed to get binding judgments.
In the meantime, schools and colleges will need to take a view as to how they deal with these issues until further case law emerges. We can help with this.
3. What steps can employers take to dissuade employees from going on strike and remain within the law?
An employee who takes part in a lawful strike is protected against being dismissed for that purpose. But, the position is less clear where they are suspended or disciplined in an attempt to prevent or deter them from going on strike. Can they rely on s146 TULRCA 1992 (which protects employees against detriment because they are a member of a trade union or have taken part in activities linked to a trade union) to protect them?
In Mercer v Alternative Future Group Limited, the Court of Appeal held that an employee who was subjected to a detriment (short of being dismissed) for taking part in industrial action couldn't bring a claim under s146. It went on to say that this may put the UK in breach of Article 11 of the European Convention on Human Rights, which gives people the right to join a trade union and prevents disproportionate and unjustified action taken against them for doing so, but that it couldn't re-write the law to comply with this.
The Supreme Court heard the case on 12 and 13 December 2023 and we await the judgment.
Why this matters
From January to October 2023, almost 2.5 million working days were lost due to strikes (ONS data). The House of Commons Library produced this briefing paper looking specifically at the impact of strikes in the education sector.
It's not unusual for employers to remove discretionary benefits from workers and/or subject them to other detriments in an attempt to deter them from taking part in strike action - particularly in the HE sector. If the Supreme Court rules that s146 can be interpreted in line with Article 11, employees will be able issue claims in the employment tribunal to obtain compensation for their losses as a result of being subjected to detriments.
4. Fire and rehire: can you dismiss and re-engage an employee for refusing to agree changes to contractual benefits?
If an employer can’t persuade an employee to accept new terms and conditions, it has the option of dismissing them and offering to re-engage them on new terms. This will, usually, only be done as last resort because of the risks involved. You must follow a fair dismissal process to avoid an unfair dismissal claim and be able to evidence a clear business reason for the change.
In 2021, Tesco gave notice to all staff in receipt of a particular benefit (Retained Pay), offering a lump sum in exchange for removing it. If an employee did not accept this offer, Tesco threatened to dismiss them and offered to re-engage them on new terms.
Retained Pay was an enhanced pay package that had been offered to employees facing redundancy, as an incentive for them to relocate rather than take redundancy. It was referred to by Tesco in negotiations with its recognised union USDAW, and in a subsequent collective agreement, as a “permanent” entitlement and could only be changed through mutual consent, promotion, or due to a contractual change in working patterns.
USDAW brought a successful claim against Tesco in the High Court to stop the “fire and rehire” process via an injunction. The High Court found that the parties’ intended to keep Retained Pay for as long as each employee was employed in their role. As such, the High Court concluded a term should be implied into the contract preventing Tesco from giving notice to terminate it.
The decision was appealed and subsequently overturned by the Court of Appeal. The Supreme Court will hear the appeal on 23 and 24 April 2024.
Why this matters?
If the Supreme Court agrees with the High Court’s original decision, employers will need to be very careful about threatening to dismiss employees where the benefits they want to remove are permanent (or could have acquired that status).
Employers will also need to use clear language when offering any benefits as an incentive (or otherwise), to avoid those benefits being interpreted as “permanent” if you don’t intend them to be. For example, by clearly stating that benefits could be subject to change or withdrawal at a future point in time.
More generally, the case is of interest due to increasing criticism of fire and rehire as a practice. Although there have been calls to ban the practice outright (particularly following the 2022 P&O ferries headlines), it currently remains lawful in the UK and can be a useful mechanism in the right circumstances. Nonetheless, large employers looking to make changes to terms and conditions via a dismissal and re-engagement route may want to think carefully about the risks of adverse publicity.
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