Advocate John Aycock of M&P Legal reviews some recent Manx and English Tribunal cases in particular local rulings on disability discrimination and remote workers.

Employment law continues to evolve apace as legislators produce more rules and shifting societal norms influence the way we live and work.

Manx equality legislation was introduced well after its counterpart in the UK so our case law precedent bank is less well stocked than neighbouring jurisdictions. But a recent Isle of Man Employment & Equality Tribunal decision on a disability discrimination claim has helped with this. The Manx tribunal dismissed a claim brought by a nurse for, amongst other things, disability discrimination and made some important general findings relevant to claims of this genre.

In Fenner v Manx Care the tribunal found that long Covid can amount to disability status in law so as to protect the employee under the Equality Act 2017. It analysed the concepts of indirect discrimination (caused by a provision, criterion or practice) and direct discrimination (unfavourable treatment arising from disability) while balancing whether a dismissal caused by long term illness absence was a proportionate means of achieving a legitimate aim. The tribunal ultimately decided on the facts there was no direct or indirect unlawful disability discrimination with the absence related dismissal being justified as a proportionate means of achieving a legitimate aim. But as the tribunal commented, long term sickness absences create tricky issues for employers and dismissing an unwell absent employee “is never an easy decision”.

Another pandemic legacy was the huge increase in remote working. The territorial reach of statutory employment protection tends to be drawn on geographical lines - covering those who work here but not others who work wholly or mainly outside the Island (with exceptions for seafarers). Our tribunal recently decided that a remote gaming sector employee physically based in the Isle of Man but working on international matters could not claim here in the light of his employment contract granting law and exclusive jurisdiction to England and Wales. Thus this short first instance decision in Gomes v Leetent might put a cat amongst the territorial pigeons.

Further afield, English courts continue to serve up interesting judgments on topical labour law areas. In a recent race discrimination claim brought by a litigant in person the Employment Appeal Tribunal found that it was wrong to penalise in costs an unrepresented claimant whose discrimination claim had been struck out as having no reasonable prospect of success. The appeal tribunal had sympathy with the difficulties an unrepresented claimant has in assessing a claim’s merits given the complexity of relevant law and they overruled an earlier tribunal £20,000 costs order against the unsuccessful claimant (Madu v Loughborough College). Costs orders in tribunals are much rarer than in courts and are granted only in limited circumstances; this helps a tribunal be more accommodating for unrepresented parties.

In another appeal case the court was faced with assessing procedural issues in disability discrimination and unfair dismissal claims. Dealing with whether an error of law had been made when an earlier tribunal reviewed the list of issues, the Court of Appeal in England took the opportunity to issue guidance on the nature and scope of a tribunal’s duty to identify and determine issues in proceedings. Guidance provided by the Court of Appeal included that (a) tribunal proceedings are adversarial and the primary onus lies on the parties to identify the issues not the tribunal itself; (b) the tribunal’s role is arbitral not inquisitorial or investigative; (c) the tribunal has no general duty to take proactive steps to procure modification of a case advanced by a party; and (d) the tribunal must be impartial, fair and just in accordance with the overriding objective (Moustache v Chelsea Westminster).

Finally, the ubiquitous topic of social media was again before the English Tribunal in recent times. On this occasion, it was internal social media under scrutiny therefore focusing more on interactive intranet pages, internal messaging boards and in house chat functions enabled by Teams and Zoom. In the case of Wilkins reported in The Times in March 2025 the claimant was successful in a discrimination and harassment claim against his former employer based on relevant unlawful conduct on internal social media. The employer’s internal communication platform had been used for criticism of prominent gender critical figures leading to postings that got out of hand and mismanagement of the situation. The case provides good reason for employers to look carefully at their internal social media and perhaps refocus such platforms on work related communication rather than unbounded political expression.

Employment law in the Isle of Man and beyond continues to be fluid, fulsome and fascinating.

This article should not be construed as legal advice, please take specific advice on the facts of each case. John Aycock is head of M&P Legal’s employment team with 34 years’ legal experience in three jurisdictions.

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