Employment Law E-Bulletin – Issue 93
- Corby v Advisory, Conciliation and Arbitration Service ET/1805305/2022 – Claimant’s opposition to critical race theory is protected philosophical belief under Equality Act 2010
- De Bank Haycocks v ADP RPO UK Ltd  EAT 129 – Employee’s dismissal for redundancy was unfair due to clear lack of meaningful consultation at the formative stage of the redundancy process
Corby v Advisory, Conciliation and Arbitration Service ET/1805305/2022 – Claimant’s opposition to critical race theory is protected philosophical belief under Equality Act 2010
Mr Corby is an individual conciliator for the Advisory, Conciliation and Arbitration Service (‘ACAS’). He describes himself as white, and his wife and children as black. He has spent significant amounts of his life with and around black people and formed relationships with them. In August 2021, Mr Corby shared his views on racial equality on a private workplace communication platform, namely that people should be valued on character rather than race. He also disagreed with what he described as a feminist view of social problems, for example that male suicides were not important. Some colleagues complained about the posts and ACAS asked Mr Corby to remove them. He accused ACAS of acting ‘like East Germany’ and brought a discrimination claim. In September 2023, the Employment Tribunal (“ET”) considered whether Mr Corby’s views were protected under the Equality Act 2010. The issue of discrimination is due to be heard in April this year.
The ET applied the test in Grainger Plc v Nicholson 2010 (‘Grainger’) to determine whether Mr Corby’s beliefs were protected under the Equality Act 2010, namely whether they were:
- genuinely held;
- more than just an opinion or viewpoint;
- concerned a weighty and substantial aspect of human life and behaviour;
- had cogency, seriousness, cohesion and importance; and
- worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others
The ET found that Mr Corby’s views of race equality were genuinely and deeply held. They: were based on a great deal of consideration of the teachings and writings of various individuals and lived experience; they related to important questions on race equality and justice which affect large proportions of the population; they were serious and important and influenced the way he led his life; they were logical and structured and capable of being understood; and they could not be described as incompatible with human dignity or conflicting with the fundamental rights of others even though they were not universally shared. His views on sex/feminism were not found to amount to philosophical beliefs. They were deemed to be opinion, relating to a narrow issue of male suicide, based on limited reference points, and he was not able to fully articulate them as an underlying belief system.
Points to note:
Although this is a first instance decision and therefore not binding on other ETs, it is:
- a useful example of the application of the test for philosophical beliefs worthy of protection under the Equality Act 2010; and
- a reminder that controversial and unpopular views, expressed freely within the workplace, may be protected by law. In the key case of Maya Forstater v CDG Europe and Others UKEAT/0105/20/JOJ (reported in our June 2021 bulletin), the EAT held that a belief would only be likely to fail the fifth criterion in Grainger if they are “the kind of belief… which would be akin to Nazism or totalitarianism”.
Employers have a difficult job of balancing the promotion of freedom of speech and managing the expression of opposing beliefs in the workplace. Although the issue of discrimination by ACAS is yet to be decided, it is important for employers to ensure that:
- they have up to date policies setting out expectations and standards of behaviour in respect of dignity at work which are reviewed regularly;
- those policies (and any updates and changes) are communicated effectively to everyone within the organisation;
- balanced equality training (including regular refreshers) is provided on an ongoing basis to all employees and managers; and
- any complaints and grievances are dealt with promptly and proportionately.
De Bank Haycocks v ADP RPO UK Ltd  EAT 129 – employee’s dismissal for redundancy was unfair due to clear lack of meaningful consultation at the formative stage of the redundancy process
Mr De Bank Haycocks (the “Claimant’) worked for ADP RPO UK Ltd (‘ADP’), a UK subsidiary of a US company. He was one of 16 recruitment consultants in the UK (of a workforce of 50-60 people) employed specifically to service a single client, Goldman Sachs.
At the end of May 2020, ADP contemplated a reduction to its workforce due to a downturn in demand following Covid19. At the beginning of June 2020, the Claimant’s UK manager was given a standard selection matrix used by the US parent company which included 17 entirely subjective factors. The manager applied the scoring in good faith, without any conscious bias, and the Claimant scored the lowest. The scoring was done before any decision was made on the scale of the workforce reduction, which took place on 18 June 2020 when the loss was determined to be 2 out of 16 jobs. ADP met with the Claimant on 30 June 2020 informing him that redundancies were needed and giving him the opportunity to ask questions and suggest alternative approaches. A further meeting took place on 8 July 2022 and a final meeting on 14 July 2020, when the Claimant was dismissed. The Claimant appealed, complaining that his scoring was too low, that the dismissal was procedurally unfair as the criteria were subjective, and that he didn’t have enough information about the scoring to challenge it. An appeal meeting took place in August 2020, by which time the Claimant had been given his own scores but he was never given those of his colleagues.
The ET found that the Claimant was unable to make a case that he should have been ranked higher and that ADP had carried out the appeal process conscientiously, investigating his concerns fully. However, the ET did not directly deal with the issues of consultation.
The EAT concluded that the failure to consult at a formative stage meant that the dismissal was unfair and that ‘whilst the appeal could correct any missing aspect of the individual consultation process (e.g. the provision of the Claimant’s own scores), it could not repair the gap of consultation in the formative stage’.
Reviewing the existing authorities on fair redundancy dismissals, the EAT concluded that, as a theme, employers deemed to be acting within a band of reasonable responses would follow what is considered good industrial relations practice. In a workforce where there are recognised trade unions or where the statutory redundancy consultation requirements apply, good industrial relations will normally dictate that a consultation with a view to minimise the impact of redundancies would ordinarily take place at a formative stage (that is before any decisions have been made on proceeding with redundancies). Therefore, in the spirit of good industrial relations, consultation should take place in some form with affected individuals irrespective of the size of a redundancy exercise or whether the workforce are represented. The EAT considered two significant changes in the nature of employment since the 1980s, namely the reduction in trade union membership outside of the public sector and more and more organisations operating internationally (meaning that what works in the US does not necessarily reflect good practices in the UK and consultation/discussion at the early stages of the redundancy process would have ironed out any issues of the selection matrix not being appropriate for use in the UK).
Points to note:
This decision highlights the need to give all affected employees the opportunity to influence decisions made about redundancies before they are made. A decision to dismiss may still be reasonable in the absence of consultation, however it would be up to an ET to decide this.
The decision also provides a useful summary of existing authorities in respect of fair redundancy dismissals, that:
- employers will normally warn and consult affected employees/representatives;
- fair consultation occurs when proposals are at a formative stage, and where an employee is given adequate information and time to respond (along with conscientious consideration being given to responses);
- the purpose of collective or individual consultation is to avoid dismissal or reduce the impact of redundancies;
- a redundancy process must be viewed as a whole and an appeal may correct an earlier failing making the process reasonable – but note that in this case the appeal only corrected shortfalls in the individual consultation process, not the lack of consultation at a formative stage;
- an ET will consider the whole process, including the reason for dismissal, in deciding whether it is reasonable to dismiss;
- it is a question of fact and degree as to whether consultation is adequate and it is not automatically unfair that there is a lack of consultation in a particular respect;
- any particular aspect of consultation, such as the provision of scoring, is not, of itself, essential to a fair process;
- the use of a scoring system does not make a process automatically fair; and
- the relevance or otherwise of individual scores will relate to the specific complaints raised in a case.
It may seem like there is a lot to do, even for small scale redundancies, however undertaking general consultation with those affected before decisions are made could reduce the time taken up by individual appeal processes. Although there is no set period for consultation where the number of redundancies are less than 20, there is a requirement to provide enough information and give enough time for employees affected to engage meaningfully. There are also likely to be fewer challenges, both internally and before a tribunal, if employees feel they have been given a reasonable opportunity to influence the decisions.