In Grace v Places for Children the EAT has upheld an Employment Tribunal decision that a Claimant who is dismissed following complaints from colleagues about the way in which she manifests her religious belief in the workplace had not been directly discriminated against because of her religion. The EAT held that the reason for her dismissal was not her religion but the inappropriate ways in which she had chosen to manifest it. These included unauthorised training sessions for staff causing complaints from some of them; the Claimant’s response to a pregnant member of staff revealing the contents of a dream to the Claimant, which scared the pregnant lady into believing she would suffer a miscarriage; and upsetting staff members when she told a colleague that something would happen in the nursery which would have a “massive ripple effect”.
Articles by ‘Gemma Ospedale’
In Z v A the EAT has upheld an Employment Tribunal decision that it was unfair to dismiss a school caretaker on the basis that he had in the past sexually abused a child, where there was no evidence to support this allegation. It was held that there was no substantial reason to justify the dismissal of a person holding the position that he held and the school had not established a fair reason for dismissal.
In an unusual case which probably turns on its facts in terms of the breaches concerned, West London Mental Health MHS Trust v Chhabra is a Supreme Court decision granting an injunction to prevent the NHS Trust from pursuing a disciplinary process against a medical practitioner over allegations of breach of patient confidentiality. The Supreme Court overturned the Court of Appeal decision and held that an injunction to prevent the disciplinary proceedings would be granted to require the Trust to restart and complete an investigation under its disciplinary policy. There had been a number of serious irregularities during the disciplinary proceedings which cumulatively rendered the convening of a disciplinary hearing unlawful as a material breach of the contract of employment. The Supreme Court did note that it would be generally inappropriate for a Court intervene to remedy minor irregularities in the course of disciplinary proceedings; but these were of a serious nature.
In Mba v Mayor and Burgesses of the London Borough of Merton the Court of Appeal has upheld the decision of the Tribunal and the EAT in holding that, on the facts of the case (a Christian care officer working in a residential children’s home who was required to work on a Sunday), Sunday working requirement was justified in the particular circumstances as there was no viable alternative.
In Cleeve Link Limited v Bryla the EAT has considered whether a clause in a contract was a penalty clause designed to deter breach of contract, or a genuine pre-estimate of loss and so a liquidated damages clause.
In BS v Dundee City Council the Inner House of the Court of Session has given useful guidance on the points employers need to consider when looking at dismissing on the grounds of ill health.
This month sees the annual review of important decisions expected this year and cases to look out for in 2014, some of which may have important effects on employment law.
In Vaughan v London Borough of Lewisham and others, the Claimant’s High Court claims have all been struck out as an abuse of process.
In Adegobola v Marks & Spencer Plc, the Court of Appeal has confirmed that Tribunal is able to consider the reasonableness of a final written warning when looking at the fairness of a dismissal. In this case it was irrelevant because the Tribunal had found the employer was justified in dismissing for an unrelated act of gross misconduct, but the decision is helpful nonetheless in giving guidance on considering the reasonableness or otherwise of final written warnings.
In Kapoor v Governing Body of Barnhill Community High School, the EAT has, astonishingly, overturned a Tribunal decision to award costs against the unsuccessful Claimant on the basis that she had unreasonably conducted her case in not telling the truth in evidence. All her claims of race discrimination, victimisation and harassment were dismissed after a 5 day hearing and the Tribunal awarded £8,900 of the Respondent’s costs to be paid by the Claimant on the basis of her unreasonable conduct in falsely presenting her case. The Tribunal held that conducting a case by not telling the truth is, in its view, acting unreasonably.
In Bull and another v Hall and another, the Supreme Court has given judgment on the decision of a hotel only to let married heterosexual couples share a room with a double bed. It considered this amounted to direct discrimination against a homosexual couple in a civil partnership under the Equality Act (Sexual Orientation) Regulations 2007. The requirement to be married was imposed by the hotel owners because of their religious beliefs but the Supreme Court considered it was discriminatory because gay people cannot get married. A minority of the Supreme Court also considered that the hotel’s policy was unjustified indirect discrimination on the grounds of sexual orientation.
In Cavandish Monro Professional Risk Management v Geduld, decided in 2010, the EAT held that a statement by the employer to the effect that “you are not complying with health and safety requirements” did not qualify as a qualifying disclosure because it was an allegation, rather than information which, in the reasonable belief of the employee or worker, tends to show one of the categories of wrong doing contained within the Employment Rights Act. Understandably, this decision was criticised as being confusing and described by the Whistle Blowing Commission as “artificial and undermines the purpose of the law”. The Commission also noted that, under Section 43F of the ERA, such an allegation would indeed be protected if it was made to a prescribed person.