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News Update

November 2017

The Court of Appeal hold that getting an employee dismissed for making protected disclosures by deceiving the dismissing officer into believing she was a poor performer, did not amount to dismissal for whistleblowing.

An ET decides that a philosophical belief in English nationalism was not a protected characteristic because elements of it which were anti-Islam were incompatible with the European Convention on Human Rights.

The Ministry of Justice and HM Courts & Tribunals Service have announced that the first people eligible for employment tribunal fee refunds are now able to apply.

Acas have launched new guidance to help employers manage mental health in the workplace along with top tips for managers about how best to have a conversation with employees about mental health.

Dismissal not for whistleblowing where decision maker misled

In Royal Mail Group Ltd v Jhuti, Jhuti (J) reported to Widmer (W) that there had been a breach of Royal Mail's rules and its regulators requirements. W advised her to admit that she was mistaken, which she did fearing she would lose her job. W then set J an "ever changing unattainable list of requirements". J was dismissed by another manager, Vickers (V), for poor performance. V knew nothing of the background. The EAT held that J was unfairly dismissed for whistleblowing, even though V was unaware of the disclosures, because W had manipulated the facts, and so the employer was liable. The Court of Appeal disagreed. The reason for dismissal requires considering the mental processes of the dismissing officer. Even if W attempted to get J dismissed because she had made protected disclosure that motivation could not be attributed to the employer as it was not shared by V.

Claimant’s belief in English nationalism not a protected philosophical belief

In Uncles v National Health Service Commissioning Board and Ors, an ET dismissed Uncles’ (U) claim that he had been discriminated against because of his philosophical belief in English nationalism. The evidence showed that: (i) U had made posts on Facebook about “Banning the Burqa” and how a woman wearing a headscarf was not welcome in the UK; and (ii) had posted a number of Tweets which included comments about Islam being only for the insane, including using the hashtag “#RemoveAllMuslims”. U also told the ET that Islam in its current form needs to banned unless it is “Anglicised” and “toned down.” The ET concluded that U’s philosophical belief in English nationalism was not a protected characteristic under S.10(2) of the Equality Act 2010 because elements of it were incompatible with the fundamental rights guaranteed by the European Convention on Human Rights.

Opening stage of ET fee refund scheme launched

The Ministry of Justice and HM Courts & Tribunals Service haveannounced that the first people eligible for employment tribunal fee refunds are now able to apply. Up to around 1,000 people will be contacted and given the chance to complete applications before the full scheme is opened up in the coming weeks. The MoJ and HMCTS are also working with trade unions who have supported large multiple claims. As well as being refunded their original fee, successful applicants will also be paid interest of 0.5%, calculated from the date of the original payment up until the refund date. The opening phase of the refund scheme will last for around 4 weeks and further details will be made available when the scheme is rolled out fully.

Acas launches new guidance to help employers manage mental health

Acas have launched new guidance to help employers manage mental health in the workplace along with top tips for managers about how best to have a conversation with employees about mental health. This follows a report by Business in the Community which found only 11% of those surveyed felt able to disclose a mental health issue to their manager while half of managers said they would like training on the matter. The new Acas guidance includes advice on: (i) spotting the signs of mental ill health; (ii) talking to a team member that may be experiencing mental ill health (including top tips for managers about how best to have this type of conversation); (iii) supporting a team member during periods of mental ill health; and (iv) helping a team member to return to work.


This update provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Click on the links to access full details. If no link is provided, contact us for more information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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