We have selected a few forthcoming decisions of interest, as well as some forthcoming hearings to watch out for in 2025.
Religion and Belief discrimination
Higgs v Farmor School (CA decision forthcoming)
The Court of Appeal will give its judgment in this case which, as the Equality and Human Rights Commission indicated in its press statement, "[is] significant because it will help establish how employers can respond – without discriminating – to what appears to be an increasingly common phenomenon: a third-party complaint where an employee has published their personal views on a social media platform."
It concerned the dismissal of a Christian staff member (non-teaching) from a school after she posted comments on Facebook, expressing vehement views against LGBTQ education in schools. While an employment tribunal (ET) found that her beliefs were protected, it held that she had not been discriminated against because of them, rather she was dismissed for the objectionable manifestation of her beliefs. The EAT held that the ET had erred in its reasoning and had not engaged properly with the assessment required when balancing competing interests in religion and belief cases.
Ngole v Touchstone Leeds (forthcoming hearing in the EAT)
This is a forthcoming hearing in the EAT which concerns a decision by a charity, Touchstone Leeds, to withdraw a job offer for a Christian mental health support worker after it learnt of his views on LGBTQ issues, which were regarded as homophobic. An employment tribunal found that the unusual haste with which the offer had been withdrawn supported the conclusion that direct discrimination had played a part in the decision. However, it also found that the other grounds for discrimination were not made out and the employer had been justified in not reinstating a second offer. Mr Ngole is appealing to the EAT and it will be interesting to see if the EAT has guidance about how job offers should be dealt with when certain beliefs come to light.
Flexible working/Indirect discrimination
Dobson v Cumbria Partnerships NHS Foundation Trust (forthcoming EAT decision)
In this case, the EAT indicated that there should be 'judicial acceptance' of the 'childcare disparity' borne by women. This means that in cases of indirect discrimination relating to flexible working or the insistence on full time work, an employment tribunal should readily accept the proposition that women tend to bear the main responsibility for childcare. The Court of Appeal will not revisit this aspect but will consider whether the EAT was right to find in favour of the employer in deciding that it had been justified to insist on weekend working for Mrs Dobson. Regard was had by the EAT to the cost of agency workers and disruption to the rota if Mrs Dobson did not agree to work weekends. It is a rare example of am employer being able to justify its stance and so employers will be keen to see what guidance may be set out by the EAT.
Whistleblowing
Sullivan v Isle of Wight Council (forthcoming CA hearing)
A forthcoming Court of Appeal hearing, Sullivan v Isle of Wight, concerns whether a job applicant is entitled to bring a claim as a whistleblower (was an employment tribunal correct in finding not?). While the whistleblowing provisions in the Employment Rights Act 1996 make clear that job applicants are not covered (unless they are applying for work in the NHS), this case is being brought on the basis that whistleblowing is a freedom of expression right under the European Convention of Human Rights, which should be enjoyed without discrimination on any ground, including status. If successful, this would significantly broaden the scope of the whistleblowing legislation, in terms of who may bring a claim.
Employment status
Lutz v Ryanair (forthcoming CA hearing)
The EAT held that a pilot was a worker and agency worker, not a self-employed contractor. The contractual documentation describing Mr Lutz as not providing personal services was found to be a sham. While many of the status cases have concerned workers in the gig economy, in particular those working through apps, this case will be of interest as it concerns a different type of worker. Court of Appeal guidance on status cases is always of interest in this spotlight area.
