Reintroduction of Tribunal Fees?; Holiday and Leave Reforms and Discrimination on the Basis of Religious and Philosophical Beliefs – Employment Law Matters: Edition 7

The government has launched a consultation with a view to re-introduce Employment Tribunal fees, which were abolished in July 2017 as the Supreme Court held that they interfered with the right to access to justice. The “old” fees regime had two types of fees (£390 and £1,200), which were paid by a claimant and covered the issuance of a claim and hearing.

The current proposal is to introduce a fee of £55 to issue a claim (no fee for hearings) in order to reduce the taxpayers’ bill (£80m in 2023) to run the Employment Tribunals.

The re-introduction of fees may deter some claimants from bringing a claim, especially if the amount of compensation being sought is relatively small. Remission may be available for those who cannot afford the fees. However, it remains to be seen whether the new proposals will satisfactorily address the concerns around access to justice raised by the Supreme Court in 2017 (and, indeed, whether the proposed fees would in reality provide adequate additional funding to the Employment Tribunal system). The consultation is due to end on 25 March 2024.

• Annual leave: Introduction which permits workers to carry over entitlements if they are unable to take it due to family leave, sick leave, or failure of an employer to provide reasonable opportunity to take it.
• A definition of ‘normal remuneration’ and when it is payable.

Discrimination on the basis of religious and philosophical belief has been a hotly contested area of employment law over the past year, with several important decisions having come out already in 2024. Whilst recent decisions can serve as helpful warnings to employers who are navigating deeply held, and sometimes provocative and opposing religious, political or philosophical beliefs among their workforces, recent decisions have in some ways not made practical guidance for employers any more tangible. In particular, it is not entirely clear whether an employer can safely dismiss an employee for the manner in which they express or manifest their belief rather than for the belief itself, and the answer is unlikely to be clear until there is a Supreme Court decision on this point.

Recently, a first-instance tribunal decision in Miller v University of Bristol found that a sociology professor was wrongly and unfairly dismissed because of his anti-Zionist beliefs. Several complaints were made that Professor Miller’s lectures and public comments were anti-Semitic and breached the Equality Act 2010. After an investigation, the University concluded that his behaviour fell below its standards of behaviour expected of staff because the way in which he expressed his views were unnecessarily provocative, did not account for the backlash that the University was likely to experience, and did not consider the power imbalance between himself and students to whom he was making comments. The University dismissed him. Professor Miller argued that the University had discriminated against him on the basis of his philosophical belief which is protected under the Equality Act 2010. The Tribunal found that Professor Miller had behaved in an unacceptable manner (although found it was not racist or in breach of the Equality Act 2010), but nevertheless found that he had been discriminated against on the basis that the decision to dismiss him was not a proportionate response.

In another recent decision, in Omooba v (1) Michael Garrett Associates Ltd (2) Leicester Theatre Trust, the Employment Appeals Tribunal (“the EAT”) found that an employer had not breached the Equality Act 2010 when it revoked its casting of Ms Omooba in a production of The Colour Purple after a social media storm resulted from her casting. Ms Omooba, several years prior to being cast in the production as a character who engages in a relationship with another woman, had tweeted about her religious beliefs and same sex relationships. The EAT found that the company’s decision had been a commercial one and was motivated by the social media storm and concerns about the viability of the production if Ms Omooba was cast in the role, rather than because of her belief or her manifestation of the belief (the employer did not argue that the way she manifested her belief was inappropriate in any way). This is arguably difficult to distinguish from a 2023 philosophical belief case Higgs v Farmor’s School in which the EAT found that the school had discriminated against Ms Higgs after she made Facebook posts about her religious beliefs and homosexuality and trans rights because the school feared that parents would be concerned.

What should an employer take away from recent cases?

• The threshold for a belief falling outside protections because it is not worthy of protection in a democratic society is an extremely high one. Even if an employee has made extremely serious and harmful comments, the employee’s views may still be protected;
• Even where an employee has manifested their beliefs in an egregious manner, the employer’s response must be justifiable and proportionate. An employer should take legal advice before dismissing an employee for the way in which they manifest their belief;
• Although the recent decision in Omooba suggests that an employer may be able to dismiss an employee who holds a protected belief because of outside pressures rather than because of the belief or the manifestation of that belief, the position is not entirely clear and Omooba and other recent decisions may well be appealed.

If an employer finds itself in a position in which its employees hold seemingly diametrically opposed views or it has an employee whose misconduct is tied to a potentially protected belief, it should take legal advice before taking action.