ET Ruling on Changing Room Access, Sex, and Gender Reassignment
ET finds indirect sex discrimination where trans woman used female changing rooms, highlighting employer obligations and staff rights.
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In Hamilton -v- Fife Council, the Employment Appeal Tribunal (EAT) has held that a collectively agreed term indicating that permanent posts would not be advertised when an employee was designated surplus was not incorporated into an individual employment contract.
29 April 2021
Case Study
The claimant was a teacher in a school. Following a review of staffing levels, the claimant was told that her department had surplus staff and as the employee with the shortest service, she was liable to be transferred to another school under a collective agreement. The school then advertised a full-time position in her department. The collective agreement indicated that where a teacher was designated surplus, a permanent post would not be advertised.
The claimant resigned from her position, claiming constructive unfair dismissal on the basis that the school was in repudiatory breach of this term in advertising the post and, further, to do so was a breach of the implied term of mutual trust and confidence. The Tribunal dismissed the claim and the claimant subsequently appealed.
Case Study
The EAT dismissed the appeal, finding that whilst collectively agreed terms may be incorporated into individual employment contracts (most commonly, terms which regulate matters such as pay, holiday entitlement and hours of work), Tribunals must consider whether such terms are apt for incorporation.
Terms that are truly collective in nature (such as agreements as to redundancy procedures) cannot generate enforceable individual rights. In this case, the term’s vagueness, and lack of specificity as to when it could be invoked by employees, clearly demonstrated that it was not the intention of the clause to confer individual rights, but rather, was a broad statement of agreement as to what was expected to happen in a surplus situation.
The EAT further found that there was no breach of the implied term of mutual trust and confidence, as the respondent both acted in good faith and had reasonable and justifiable grounds for advertising the post. Therefore, there was no breach of contract, either explicit or implied, and the claimant’s appeal was dismissed.
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