Friday, April 15, 2011

Opposing Fox Hunting - the New Religion

An Employment Tribunal in Southampton has held that an employee's fervent opposition to fox hunting and hare coursing is a "philosophical belief" for the purposes of the Employment Equality (Religion or Belief) Regulations 2006. This means that it enjoys the same protection in the workplace as Christianity or Islam (or perhaps not -in view of the recent run of unsuccessful claims by Christians!) This decision follows on from the Employment Appeal Tribunal case of Grainger plc and Others v Nicholson where a belief in climate change was found to amount to a protected belief where it impacted on the employee's entire lifestyle. When the Regulations were first enacted they protected "religion or similar philosophical belief" (which meant political beliefs would not normally be caught although perhaps Marxism, with its all encompassing world view, secular saints, sacred texts and promised land would have been) but then the word "similar" was removed, potentially making it easier to claim protection. The EAT laid down criteria for a protected philosophical belief (not to religions - if something is a religion it is automatically protected), which must be:-

  • genuinely held

  • a belief, not an opinion or a viewpoint based on the information currently available (which would tend to suggest a belief in God supported by no evidence is protected but a rational opinion based on evidence is not!)

  • a belief as to a weighty and substantial aspect of human life and behaviour (i.e. not just a preference for Snickers over Mars Bars.)

  • able to attain a certain level of cogency, seriousness, cohesion and importance (claiming to be a Jedi on your Census form is not a protected belief as there is no coherent code of Jedi philosophy.)

  • worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others (this is a controversial one which appears to involve, with respect to the EAT, reading words into the legislation that are not there and which seems to have been arrived at chiefly so that members of the BNP were not covered by the legislation. Would all manifestations of organised religion satisfy this test if it applied to religions as well as philosophical beliefs?)
Mr Hashman worked as a gardener and had for many years been active in the (peaceful) anti-hunt movement. He started work for the Respondent and then discovered they were active in the local hunting fraternity. Despite discovering this he continued to work for them until eventually they decided (they say) that they no longer needed him. He claimed the decision to end his working relationship with them was because of his belief and claimed discrimination under the Regulations. Because the employee's beliefs had a fundamental impact on how he lived his life (he was a strict vegan and said his beliefs were the "guiding force" of his life, they were protected. This would not apply to everyone who opposes or dislikes hunting. If he had been a violent hunt saboteur then it is likely he would not have satisfied the last limb of the test, although he accepted he did indulge in non-violent civil disobedience. If he just disliked hunting or opposed it on scientific grounds then he would not have satisfied the second limb of the test. The fact he continued to work for hunters as a gardener after becoming aware of their activities was held not to disqualify his claim - moral issues involve difficult choices and he had bills to pay. The case will now go on to a full Tribunal to determine whether the termination of his working relationship was in fact because of his beliefs and therefore unlawful discrimination. Watch this space. Employers will want to think carefully about how these two decisions might affect them when dealing with situations in the workplace involving employees with strong views about a particular issue that have a major effect on their lifestyle. If you are making someone redundant and it is nothing to do with their crusade to prove the earth is flat and balanced on the back of a tortoise, make sure you have the clear paper trail to prove it!

Friday, April 08, 2011

Pregnancy and Redundancy - The Employer's Dilemma

The Employment Appeal Tribunal has held that a firm of Solicitors (lawyers in trouble in the Tribunal - surely not?) discriminated against a male employee in a redundancy exercise by giving a colleague who was on maternity leave the maximum score against the selection criteria. Eversheds needed to make redundancies and Mr De Belin and Ms Reinholz worked in the relevant department. Ms Reinholz was on maternity leave. The firm used a set of selection criteria, which each employee in the "pool" was scored against. One of these related to "lock up", a measure of how long it took for the employee's work in progress to be converted into cash. Because Ms Reinholz was off work she was given a notional score of 1 under this heading. Mr de Belin was scored 0.5. As the scoring overall was so close this potentially made the difference between Mr de Belin being selected for redundancy and keeping his job. After his redundancy Mr de Belin brought a Tribunal Claim for Unfair Dismissal and Sex Discrimination. He alleged that giving Ms Reinholz a better score than him because she had been pregnant amounted to less favourable treatment of him as a man given that pregnancy is a (believe it or not) uniquely female condition. He said that there were other ways that the situation could have been dealt with - "lock up" could have been disregarded altogether, she could have been given the average score or they could both have been scored against the last period when they had both been at work. Eversheds claimed that it had no choice to avoid treating Ms Reinholz less favourably because she was on maternity leave but to give her the maximum score - on the basis that if she had not been on maternity leave it was possible that she would have improved her lock up and got the maximum score. This argument was somewhat undermined by the fact that Eversheds subsequently did change their procedure (although it might be thought a little unfair of the EAT to hold that against them when they had been sued for following their previous practice!) The Sex Discrimination Act stated that special treatment afforded to women in connection with pregnancy is not discrimination.

The Employment Tribunal found that this meant treatment that was reasonably necessary for that purpose and did not extend to situations where there were less drastic means of avoiding any difficulties for the pregnant woman. As such whilst a man could not complain about a pregnant lady being allowed more frequent loo breaks, Mr de Belin was entitled to legitimately complain about Ms Reinholz being given the high score when his other suggested alternatives would have been more appropriate.

They also upheld his unfair dismissal claim, reasoning that if the measure adopted was unreasonable it was not fair.

The EAT upheld the Tribunal's decision. Whilst it clearly sympathised with an employer that was faced with being "damned if it did, damned if it did not" they agreed that the legislation only allowed special treatment of pregnant women that was no more than was reasonably necessary for the purpose of compensating them for the disadvantage caused by their pregnancy. The measure adopted here was too generous to Ms Reinholz. They also agreed that whilst the employer had made an honest misjudgement it was not reasonable for them to rely on that as a fair reason for dismissal.

There was also an appeal in relation to damages and that part of the case is to go back to the Employment Tribunal for further hearing. Ironically, the context of this was that within a year there was a redundancy exercise within the Department to which the narrowly surviving Ms Reinholz was transferred, and she was out anyway. It would appear that Mr de Belin's claim for damages might well yet (we shall have to see) be limited to the loss of a "stay of execution."

This case is quite tough on employers. The difficulty for Eversheds was that if they had scored Ms Reinholz differently then no doubt she would have brought a Claim (which like Mr de Belin's could have been for potentially unlimited damages!) and would have pointed to the exception for special treatment for pregnant women as a basis for saying that the employer should have scored her better. The EAT consoled itself by suggesting that the concept of reasonableness should protect employers who act appropriately but it will often be very difficult for employers to make fine judgements about what is reasonably necessary and what is not.

The case is reported here.

Thursday, April 07, 2011

The Perils of Social Networking Sites - Who is reading?

Facebook continues to be a regular source of work for employment lawyers. Social networking sites lull people into a conversational style of writing akin to a chat that they would have with their mates down the pub. It can be very easy to forget that an entry on Facebook is a (nearly) permanent record (and easier to prove.) It can also be easy to forget who your "Friends" are and/or whether people at large have access to your Facebook page. In the last 24 hours there has been more publicity about Katie Furlong, who lost her redundancy payment from Royal Bank of Scotland after bragging about it on Facebook. She has apparently thrown in the towel in her attempts to bring an Employment Tribunal claim and will therefore never see the approximately £6000.00 she would have been in line for had she not posted on Facebook and had been made redundant as planned. She made comments after the redundancy announcement expressing pleasure at the fact that she had held on to that point "when they could've had me out long ago without a penny." As a result RBS disciplined her for gross misconduct, consisting of breaching the company's confidentiality rules, and she was summarily dismissed "without a penny." Apparently she was anonymously denounced to her employers, presumably by a "Friend." It has been suggested that if she had made the comments in the pub to friends this would not have resulted in dismissal, but that may just be because it would have been harder for the employer to find out about them. This followed on from a previous case where an employee was sacked after posting on Facebook that she found her job boring. The employer decided to permanently alleviate her boredom. Employers should have a clear policy in writing about what is and is not allowed, to avoid the risk of unfair dismissal claims by employees who did not have clear boundaries. The message for employees is that you can be disciplined or dismissed for what is on your social networking page, whether you post in your own time or your employers, if it impacts on your employment. This means that disclosing confidential information, making comments that bring your company into disrepute (and do not forget people who know you will know where you work even if you do not mention your employer by name) or posting things that could cause problems in the workplace (e.g. abusive language about your boss) are all very risky.

Tuesday, April 05, 2011

"Final" Written Warnings - Not the Last Word After All?

The Employment Appeal Tribunal has recently handed down 2 decisions where it concluded that contrary to the usual rule employers were not entitled to rely upon final written warnings when deciding to dismiss. In the first case, Mr Sakharkar was dismissed because of an unacceptable absence record. The decision to dismiss him was reached because he was already on a final written warning and would not have been made otherwise. After the event (but evidently before the 3 month Tribunal time limit for a Claim had expired) it came to light that he should not have been given the final written warning because the wrong time period had been taken into consideration. The Employment Tribunal found that his dismissal was fair because on the information available to it at the time the employer had genuinely but mistakenly believed he was subject to a valid warning. The EAT overturned this and held the dismissal unfair. As the employer was a large company with significant HR resources the mistake should have been identified and whilst the outcome was going to be harsh either way it felt on balance it was the employer who should suffer. In the other case Sandwell Council took into account a final written warning against a teacher when deciding to dismiss her. She had withdrawn her appeal against that warning on the basis of what appeared to be well-founded concerns that if she went ahead with it there was a chance that a higher penalty (i.e. dismissal) would be imposed. She successfully argued before the EAT that the final written warning should not have been taken into account and that her dismissal was unfair. The EAT appears to have been influenced to some extent by the fact that the evidence that she would have presented at her appeal in relation to the warning seems to have been compelling. The lessons for employers? 1) Do not assume that you can always rely on a final written warning even if the employee did not appeal against it. If at a dismissal hearing the employee is challenging the warning be prepared to look at the underlying facts where necessary. 2) Treat disciplinary proceedings in which you give a warning which could at a later date be taken into account towards dismissal just as carefully as you would a gross misconduct case resulting in immediate dismissal. 3) Check carefully that any warning has not expired - although in some very limited circumstances it may be appropriate to take into account "spent" warnings when deciding the "starting point" level of punishment.

Monday, April 04, 2011

Positive Discrimination - New Law Isn't Discrimination - And It (probably) Isn't Positive Either

From this Wednesday, 6th April 2011, s.159 of the Equality Act 2010, which allows "positive action" in recruitment, will come into force. Whilst "positive discrimination", like any other form of discrimination because of a protected characteristic (eg. sex, race) remains unlawful, this new provision will in very limited circumstances allow a person with the protected characteristic to be favoured in recruitment. Both candidates must be "as qualified to be recruited or promoted" and the decision to favour the one with the protected characteristic must be based on the employer reasonably thinking that people with that characteristic suffer a disadvantage conneted to it or participation in an activity by persons who share that characteristic is disproportionately low. Even then favouring the candidate with the protected characteristic is only allowed where the action is taken to overcome or minmise the disadvantage or enable or encourage them to participate in the activity. The law also requires that the employer does not have a policy of favouring people with the protected characteristic. It is difficult to think of circumstances in which all of these criteria will ever be met. It must be rare for there to be two candidates who are identically qualified (note "qualified" not "suitable") and any recruiter who applied this legislation incorrectly would be leaving themself wide open to a discrimination claim (for potentially unlimited damages including compensation for loss of the chance of getting the job and hurt to their feelings) from the losing candidate. Probably far better to simply decide between the candidates on their merits. There will rarely really be a total deadlock. Employers should keep detailed records of all recruitment decisions to show that these are transparent and not discriminatory. It should not be forgotten that this clause is a power, not an obligation - the employer does not have to apply it. In fact the winning candidate may not even be pleased if you do!