Happy Friday everyone and thank you for joining us for our monthly newsletter. For those that missed last month’s newsletter you can find that here. This month, we are looking at a Tribunal claim for a woman who was dismissed from her position at a rape crisis centre for her gender critical views, the redundancies made at Manchester United, some last-minute legislative changes that have been passed on the last day of Parliament before the general election, and some lighter side of the news.

‘Heresy hunt’ against gender critical rape crisis centre worker

This month saw another successful claim for unfair dismissal being brought as a result of gender critical beliefs. Roz Adams, a biological woman, was employed by the Respondent, Edinburgh Rape Crisis Centre, from 2021 as a Counselling Support Worker. The Respondent advertised paid and volunteer roles as being for women only, the purpose of which was to protect the users of the centre. While the centre offered services to women, trans-identified, and non-binary people, the staff members were exclusively women. The Claimant, while believing that sex is an immutable biological fact, had worked with transgendered victims in the past without issue.

In April 2021, a new CEO was appointed to the Respondent, Mridul Wadha, who is a trans woman. Despite the media controversy surrounding the appointment, the Claimant supported the decision and believed that the appointment could improve the services offered. However, the Claimant also believed that the service should be open and transparent to users about who they were talking to and the gender of the person providing services. This was based on the belief that men commit the overwhelming majority of sexual violence and that a woman who was the victim of such violence would want to speak exclusively to other women. Over the course of her employment, the Claimant became aware of certain practices which she felt were ‘off’, such as categorising emails raising issues about the centre’s approach to transgender issues as ‘hate mail’ and promoting the ‘mantra’ that trans women are women.

The Respondent was approached by a woman in her 60s. She indicated that she wished to take part in group work due to a sexual assault which had taken place over 40 years ago. When she requested assurance that the person she would be talking to would be a woman, the centre responded that they were trans affirming and that she was not suitable for the service. Around this time, the Claimant also became aware that it was a policy at the Respondent to not refer victims to a fellow sexual violence support centre, as it was set up specifically as a single sex space. The Claimant’s concern was primarily that a counselling relationship required a foundation of trust and informed consent. The Claimant believed that this relationship would be at risk if the victim later became aware that the person they had built that relationship with was not being honest with them by concealing their gender identity.

Following an extended series of incidents which revolved around a colleague of the Claimant coming out as non-binary, the Claimant came to the conclusion that she could not work for someone who felt she was not entitled to her beliefs. Following a period of statutory sick pay, the Claimant did not believe that she would be protected at work and resigned. She then brought a claim for constructive unfair dismissal and was successful.

While this is another case in the growing body of case law regarding gender critical beliefs being a protected characteristic, it is always important to take a measured approach in dealing with these issues and the Tribunal considered the procedural aspects conducted by the Respondent extensively and found them to be below the standard expected.

Manchester (less) United

This month we have seen Manchester United make sweeping redundancies in an attempt to have more employees return to the office and cut the number of staff. From 1 June, all staff working for the club must return to work in their Manchester or London offices, whereas they had previously been allowed to work from home. Following an email from management, any employee who wishes to volunteer for redundancy will be paid their September bonus early if they agree to leave the business. The club appears to be taking some pointers from the civil service in trying to push staff to return to the office.

While the points raised by an owner of the club may be valid, there are some points worth remembering before adopting a policy like this. Any contractual variation needs to be implemented in a reasonable manner to avoid breaching implied terms. Demanding that staff, especially those that had applied to the role because of the ability to work remotely, return to the office may present difficulties. Disabled employees are more likely to request flexible working and the ability to work from home. If the disabled employee is to return to the office, adjustments may need to be made to ensure they can effectively perform their duties. If an employee is unable to travel due to their disability but is otherwise capable of performing a role effectively remotely there may be lurking discrimination claims should that employee be treated unfavorably as a result of the policy.

Given the number of staff being made redundant, the rules surrounding collective consultation may apply. Over reliance on settlement agreements without taking this into consideration may lead to protective awards of up to 90 days’ pay for those that bring claims, as there is no material difference between a staff member who is settled out before they are made redundant and staff that are made redundant in the standard way. In any event, the opportunity to take a bonus early represents little incentive to volunteer for redundancy. Employees appear to be better off returning to the office for a few months, receiving the bonus, then moving on to alternative employment regardless.

The timing of this decision also leaves much to be desired. Like teachers, football staff tend to work in cycles spanning months at a time rather than your usual drop in drop out salaried employee. This may leave to a mass exodus of staff which the club will struggle to replace before the start of the next cycle.

Any bets on performance next season, then? (I have no idea about football or betting!)

Legislative updates

With the closure of Parliament ahead of the general election (ironically) on 4 July, we have some last minute legislation that was passed on the day or which came into force shortly afterwards.

The first of these is The Paternity Leave (Bereavement) Act 2024. The Act, which received royal assent on Friday 24 May, seeks to protect bereaved fathers in the event that the mother, or person with whom the child is placed in the case of adoption, dies. Prior to the change in legislation, fathers did not possess a right to parental leave before their 2 year qualifying service was met. New provisions are inserted into the Employment Rights Act 1996 a new section 80A(6A), (6B), and (6C), which includes a new definition for a bereaved employee and details for which circumstances allow for paternity leave to be taken.

The other piece of legislation came in the form of a Statutory Instrument, named The Code of Practice (Dismissal and Re-engagement) Order 2024. It will come into force on 18 July 2024. The Code seeks to encourage Employers to take reasonable steps prior to dismissing and re-engaging employees (otherwise known as fire and re-hire) and punish employers who deviate from the code. The Code is split into sections A through I and encompasses what information the employer should provide when considering firing and re-hiring, what consultation should be undertaken (there is no fixed time limit within the Code, however), and what steps to consider when carrying out the process. The punishment for failure to follow the Code is a 25% uplift to awards given at an Employment Tribunal if the Employer unreasonably fails to comply and a similar 25% reduction if the employee unreasonably fails to comply.

While these legislative changes can always be undone by future governments, given that the Paternity Leave (Bereavement) Act was introduced by a Labour MP, it seems unlikely that this will be changed in the future. Labour has, however, described the code as ‘inadequate’ and stated that it may be strengthened in the event they are elected.

Lighter side of the news

This month has seen a few complaints over strange recruiting practices reach the news. Applied, a hiring platform, has provided a report showing some of the strange practices that go into acquiring new recruits. A candidate for a student ambassador position was asked to ‘crawl on their hands and knees and moo like a cow’ during a group interview process! Apparently, this was to show the interviewers whether the candidates were ‘fun’ or not. The candidate, elaborating on their experience, said that it went on for about three to four minutes and that the peer pressure of everyone else doing it was what made the group continue for the length of time they did. So, how many times have you had to do that in an interview? None? Well, clearly you aren’t fun enough!

Another interviewer, in applying for a US based copywriting job, was asked ‘how many years do you think you’ve got left in you?’. Given that the applicant was in her early 60’s, this was probably grounds for an age discrimination claim all by itself! The Applied report also found that women who applied for senior roles were significantly more likely to be asked about their intentions regarding children during their interview process.

Although curve ball questions can help provide a bit of insight into a potential candidate, I suspect anyone other than desperate students aren’t likely to appreciate the farmyard animal impression!