Welcome to this month's briefing for HR teams and in-house employment counsel – bringing you this month’s employment law highlights in an easy-to-read package.

Personal data and DSARs

How do you define personal data? How far does a data controller have to go in searching for personal data? Tabitha Al-Mahdawie and colleagues from our Litigation team examine these tricky questions in this article.

Post-termination restrictions and sick leave

Post-termination restrictions last for a set period of time, where the period is often reduced by any time spent on garden leave (because the employee is out of the market, so not engaging with clients or holding confidential information). But what happens if an employee resigns, is asked to work out their notice instead of being put on garden leave, but then actually does no work because of sickness absence? Does it matter if the sickness is genuine? These interesting issues have come before the High Court in a recent case, explored in detail by Isobel Lewis in this article.

Discrimination and freedom of speech

We’ve looked previously at the extent to which employers can discipline or dismiss employees because of something connected with their religion or belief. The Court of Appeal has reviewed this tangled area once again, in the context of a school worker who was dismissed for reposting items on social media that were against same-sex marriage and gender fluidity. The dismissal was held to be unlawful discrimination on grounds of the employee’s belief, and the decision makes some important general points about this very difficult area of law. 

The first is that freedom of belief and freedom of expression are foundational aspects of a democratic liberal society. While they are not unqualified rights – as the case law of the European Court of Human Rights and the European Court of Justice make clear at an international level, and as the Court of Appeal and Supreme Court have repeatedly emphasised domestically – any interference with them must be objectively justified. 

The second, as we have seen in other recent cases involving gender-critical views, is that only the most extreme beliefs (e.g. Nazism, fascism) will not qualify for protection. Gender-critical views, and the employee’s opposition to the teaching of same-sex marriage in schools in this case, are not close to that threshold. It therefore follows that disciplinary action merely because an employer objects to such a protected belief will be unlawful discrimination. 

But if the disciplinary action is motivated not simply by the expression of the belief itself but by something objectionable in the way in which it was expressed then it will be defensible if, but only if, the employer shows that it was a proportionate response to the objectionable feature – i.e. that it was objectively justified. 

Just being intemperate, or using offensive language, will not usually be enough, and nor will a generalised fear or risk of reputational damage to the employer. But if an employer could point to actual damage to its reputation or business, or the way in which the employee expressed their views was particularly objectionable, then disciplinary action might be justified. Everything, as always, depends on the facts.