Employment associate Lucy Sellen is also a contributing author to this article.
Given the news agenda in recent weeks, many will have missed some interesting employment cases which were decided recently.
In this article we discuss three cases which have important implications for employers. Two are employment tribunal decisions and one is a decision of the Employment Appeal Tribunal (EAT).
Although an employment tribunal judgment is not binding on other courts or tribunals, they provide important guidance on how certain key issues are likely to be decided.
In this article we cover:
- McClung v Doosan Babcock – support for football club not a protected belief
- Quinn v Sense Scotland – employee with Covid and long Covid not disabled when dismissed
- University of Dundee v Chakraborty – investigation report into grievance not legally privileged
McClung v Doosan Babcock – support for football club not a protected belief
The Employment Tribunal has ruled that support for a football club does not amount to a protected religious or philosophical belief under section 10 of the Equality Act 2010. This means that a dismissal in connection with support for a football club is not an act of unlawful discrimination.
The facts
Mr McClung had been a supporter of Rangers football club for over 42 years. He worked as a subcontractor for the construction and servicing company, Doosan Babcock, between January and June 2019. However, he was not given any work after June 2019. He argued that this was because the manager who had the authority to provide him with work was a Celtic fan.
Mr McClung sought to pursue claims of automatic unfair dismissal and philosophical belief discrimination. He believed his support for the football club was so strong that it was tantamount to a philosophical or religious belief.
He argued attending matches and supporting the club was a way of life, akin to Christians attending church. He spent most of his disposable income on attending Rangers games and claimed he was motivated to do the best he could in order to ensure he continued to attend the games.
Decision
In making its decision, the Tribunal applied the test from Grainger plc v Nicholson and found that although the beliefs were genuinely held, those beliefs did not amount to a philosophy or doctrine.
The Tribunal held that supporting the football team was a “lifestyle choice” that had no “larger consequences” for humanity as a whole and therefore did not satisfy the test in Grainger.
The Tribunal also had regard to the (non-binding) Explanatory Notes to the Equality Act which, unhelpfully for Mr McClung, stated that “beliefs such as humanism and atheism would be beliefs for the purposes of [section 10], but adherence to a particular football team would not be”.
Takeaways for employers
This decision is likely to be welcomed by employers. Although the decision is not binding, we think it would be followed by other employment tribunals in finding that support for any sports team would not be a protected philosophical belief.
This decision sets a limit to the recent trend of individuals testing the boundaries of what might amount to a protected philosophical belief. For example, the claims of Forstater v CGD Europe and Mackereth v DWP involving gender critical beliefs which were included in our case law round up in September.
In each of those cases the EAT confirmed that the claimants’ gender critical beliefs were capable of amounting to protected philosophical beliefs under section 10, although the claimant in Forstater was ultimately successful in her discrimination claim, whilst Mr Mackereth was not.
Discrimination claims of any kind, including on the basis of philosophical belief, attract uncapped compensation and the cost of defending them (even where the overall prospects for the claimant are poor) can lead to some employers making commercial decisions to try and resolve them via an early settlement.
Quinn v Sense Scotland – employee with Covid and long Covid not disabled when dismissed
This was a case in which an employee, Mrs Quinn, raised various complaints of disability discrimination against her employer, Sense Scotland, and alleged that her “long Covid” amounted to a disability under the Equality Act. The Tribunal had to decide whether or not Mrs Quinn was disabled at the time of her dismissal.
The facts
Mrs Quinn first tested positive for Covid on 11 July 2021. After contracting Covid, she experienced fatigue, shortness of breath, generalised aches, pain and discomfort, headaches and brain fog. She struggled with a number of activities including shopping and driving, and she no longer socialised or exercised.
The symptoms continued until Mrs Quinn was dismissed by Sense Scotland on 27 July 2021. Mrs Quinn was deemed unfit to work by her GP from 2 August to 27 September 2021 due to an “upper respiratory traction infection due to SARS-CoV-2”, then “ongoing symptomatic Covid-19”, and then “post-Covid-19 syndrome”. Mrs Quinn was diagnosed with long Covid around six weeks after her dismissal.
Decision
The Tribunal considered the definition of “disability” under the Equality Act 2010, namely that a person has a disability if they have “a physical or mental impairment [which] has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities”.
The effect of an impairment is “long-term”, according to the Act, if it has lasted for at least 12 months, or is likely to last for at least 12 months (or for the rest of the life of the person affected).
The Tribunal found that at the time of her dismissal, Mrs Quinn was suffering from the impairment of Covid and that it did indeed have a substantial effect on her ability to carry out normal day-to-day activities including shopping, driving, socialising and exercising.
However, as to whether the effect was long-term, the Tribunal noted that Mrs Quinn’s ability to carry out normal day-to-day activities had been impacted for only two and a half weeks at the time of her dismissal, and she did not have long Covid at the time of her dismissal.
The Tribunal also commented that the substantial majority of people who contract Covid do not develop long Covid and do not suffer from it for more than a year and therefore it cannot be said that the risk “could well happen”. Accordingly, the Tribunal found that at the time of Mrs Quinn’s dismissal the substantial long-term effect had not lasted for 12 months and was not likely to last or recur for 12 months.
As a result, the Tribunal held that Mrs Quinn was not disabled at the relevant time and her complaint of disability discrimination could therefore not proceed.
Takeaways for employers
Although long Covid has previously been recognised as a disability by an Employment Tribunal – see Burke v Turning Point Scotland and our discussion of the case here – the judgment in Quinn demonstrates that it very much depends on the circumstances, and in particular the precise impact that Covid or long Covid has on the employee at the time of the dismissal or other act complained of.
In Burke, Mr Burke had been absent from work with Covid for nine months at the time of his dismissal. In that case, the Tribunal found that it “could well” be that Mr Burke’s long Covid would last for a period of 12 months when viewed from the time of his dismissal. Both of these cases are first instance decisions, and so not binding on other employment tribunals, and each turns on its own facts.
More generally, this case is a reminder to employers that an illness or impairment must meet all aspects of the statutory definition of “disability”, otherwise the employee will be unable pursue a claim for disability discrimination. It also highlights that an illness or impairment may not be likely to last for 12 months when viewed from the relevant time, even if it does subsequently last for a prolonged period.
University of Dundee v Chakraborty – investigation report into grievance not legally privileged
The Employment Appeal Tribunal has held that legal privilege did not apply retrospectively to an original version of an internal investigation report which attracted neither litigation nor legal advice privilege at the time it was produced.
The facts
Mr Chakraborty was employed by the University of Dundee. He raised a grievance under the University’s Dignity at Work and Study policy. The University appointed an independent member of its academic staff to investigate the grievance and to compile an investigation report.
A report was produced, and a copy sent to the University’s external legal advisers, who suggested a number of changes. The author of the report also made some further changes before a final version of the report was provided to Mr Chakraborty. By this time, Mr Chakraborty had submitted complaints to the Employment Tribunal of race discrimination and harassment. The report was shared with Mr Chakraborty and added to the Tribunal bundle.
It was clear from an annotation on the investigation report provided that an earlier version of the document had been revised following legal advice. Mr Chakraborty therefore made an application for disclosure of the original, un-amended version.
The University resisted the application on the basis that a comparison of the original with the amended version would show the nature of the legal advice received, such that the original version of the document was subject to legal advice privilege.
Decision
The Employment Tribunal rejected the University’s argument and ordered it to disclose the original report to Mr Chakraborty. On appeal to the EAT, the University contended that whilst the original version of the document was not privileged at the point when it was created, it retrospectively acquired legal advice and litigation privilege once the amended version of it was lodged. This was because a comparison of the two versions could allow conclusions to be drawn about the terms of the legal advice received by the University.
The EAT upheld the Employment Tribunal’s decision. Although both the terms of any advice given by the solicitor about the original document and any amended version of the original document created for the purpose of the litigation would plainly be privileged, the original un-amended document would not. It would not retrospectively become privileged even if an incidental consequence of its disclosure and comparison with the disclosed final version might allow inferences to be drawn about why the two versions were different.
The EAT also observed that it was unclear how it could be inferred what legal advice was given simply from a comparison of the two versions given that the investigator had made her own amendments to the original report, which may have been unconnected to the legal advice.
Key takeaways for employers
This decision is an important reminder to employers that the contents of reports produced for internal procedures are generally discoverable in subsequent Employment Tribunal proceedings, as well as through a data subject access request.
Employers should ensure that line managers are aware of the risk and the need to ensure that they keep careful control over the number of draft versions of an internal report.
To benefit from legal advice privilege, employers must seek legal advice on the terms of the report at the time it is created. Once it is circulated within the organisation, it will be too late to withhold it from disclosure on the grounds of privilege, even if it is later revised in light of legal advice.
Contact us
If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak to your usual Fox Williams contact.
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