Thursday, May 26, 2011

Religious Discrimination - It is not just Christians who don't win!

The Employment Appeal Tribunal (EAT) has upheld the decision of an Employment Tribunal to reject a Muslim security guard's claim of religious discrimination after his employer refused to allow him to leave site to attend Friday prayers.

Mr Cherfi has worked for G4S since 2001 and since 2005 has been mainly based at a Job Centre Plus in Highgate. It would appear that until about late 2007 there was a relaxed approach to him leaving work on Friday lunchtimes to attend a mosque for Friday prayers. However when he did so in October 2007 he was disciplined for an alleged unauthorised absence.

In the following year he was told that he could no longer leave work to attend the mosque on Fridays because the Respondent's client required a specific number of guards to be on the premises at all times. Due to the impracticality of being able to draft someone in to cover breaks the guards were to remain on the premises when taking their lunch.

The premises had a prayer room that Mr Cherfi could use (his preference was to pray with fellow Muslims at the mosque) and G4S offered to amend his hours so that he worked Monday to Thursday and then either Saturday or Sunday. Mr Cherfi was not prepared to work on a Saturday or a Sunday. He has therefore worked Monday to Thursday since and brought a claim for religious discrimination.

At first instance he claimed that the policy was direct discrimination against him as a Muslim. This claim failed and was not pursued to appeal.

He also alleged that it was indirect discrimination. This meant that by requiring him to not leave work on a Friday the Respondent was applying to him the same provision criteria or practice as it applied to everyone else but it put Muslims, and him, at a particular disadvantage and could not show the requirement to be justified.

The Employment Tribunal found that the requirement was proportionate bearing in mind the difficulties or arranging cover for the Claimant's absence and the risk of losing the contract if they did not comply with their client's requirements.

The EAT upheld this. They said that it was clear that the Tribunal considered the impact of the requirement on the Claimant and the reasons why the Respondent would not allow him to do so. The word "proportionate" implies a balancing of the needs of the respective parties and there was nothing to suggest that the Tribunal had failed to look at both halves of the equation.

The case is a useful reminder that religious requirements do not automatically "trump" the needs of the employer. It does not however mean that this will always be the case. If the Claimant's absences could easily have been covered, or if there was no contractual requirement that guards be on site at all times, if other solutions had not been offered, or had there not been a prayer room available then the outcome could have been different.

Given that there have been recent complaints by evangelical Christian groups that believers are being persecuted in the workplace it is also a useful illustration of the fact that it is not just Christian Claimants who can find themselves in difficulties in the Employment Tribunal.

The case is reported here.

Tuesday, May 17, 2011

Employment Consultant Firm Loses The Peninsula War!

A company that sells employment advice and representation to businesses has suffered the embarrassment of seeing Unfair Dismissal claims by 3 of its own former employees upheld by the Employment Appeal Tribunal (EAT.)

Mr Rees, Mr McLachlan and Mr Jaffier and were made redundant by Peninsula after a downturn in work which followed the Government's decision not to make the list of Employment Tribunal Claims public any more, which hindered their ability to market to Respondents.

They all alleged that their dismissals were unfair on the basis that Peninsula had failed to follow the then applicable statutory procedure.

The original Judgment in the case was overturned by the EAT on the grounds that the Tribunal panel could be seen as being biased. The case was referred to a second Employment Tribunal. Given that the parties all held themselves out as having expertise in employment law the case was fought very keenly on both sides in view of the perceived risk of professional reputations being tarnished by an unfavourable outcome.

The Employment Tribunal found that the dismissals were automatically unfair given that the statutory procedure had not been followed - the Claimants had not been given enough information about the basis upon which they had been scored and selected for redundancy and had not been given enough opportunity to comment on their selection. They held that the process adopted by the scorer, Mrs English, had been "somewhat secretive and not fully transparent."

The Tribunal went on to decide that they did not accept that the Claimants would have been fairly dismissed in any event (an argument which would have led to them getting very limited compensation if it had been accepted.)

Peninsual appealed. The EAT rejected a submission that the Tribunal had applied to strict a test of the requirements of the statutory procedure. On the contrary they thought that the Tribunal, which had been conscious of the fact that the case had already been to appeal once, had looked at the case very carefully and diligently and had come to a decision which was open to them.

In front of the EAT Peninsula sought to argue that the Tribunal was required to consider whether the dismissal was fair because it would have happened anyway even where they found the dismissal automatically unfair. The EAT considered this out of deference to his argument but it is clear that they were unimpressed (as evidenced by the phrase "Mr Samson has difficulty accepting that section 98A(2) does not apply) and at one stage a submission by Peninsula that the Tribunal had applied the wrong test of dismissal was described as "absurd."

The appeals were rejected. A remedy hearing will now take place to determine the amount of compensation.

The case is reported at

Tuesday, May 03, 2011

Comments about former colleagues - be careful what you say!

A former employee of Swindon College has succesfully claimed damages after losing his new job because of comments that were made to his new employer by Swindon's HR Manager.

Robert McKie had been employed at Swindon College from 1995 until 2002 when he left to take up a new job at Bath City College. Swindon gave him a glowing reference and based on the evidence at trial of his former colleagues this seems to have been well deserved.

In 2008 after a brief detour to Bristol Mr McKie took up a job at the University of Bath. He had been there about 3 weeks when the HR Manager at Swindon emailed the University of Bath stating that Mr McKie would not be allowed on to Swindon's premises (which was a requirement of his new job) and alleging that there were serious issues over safeguarding students. It alleged that there had been issues over staff relationships and implied that disciplinary action had only not been taken because he had left before it could be instigated. It went on to say that the writer understood similar issues had arisen at Bath City College.

University of Bath subsequently dismissed Mr McKie. He could not claim Unfair Dismissal as he had been there less than 12 months and the Judge's fairly scathing comments about the unfairness of the procedure adopted by the University in dismissing him will therefore have been cold comfort.

He therefore brought proceedings against Swindon College. He could theoretically have claimed for libel but there would probably have been a defence of qualified privelige which would mean he would have had to prove Swindon had been malicious. Instead his claim was put on the basis that Swindon had owed him a duty of care not to make false statements about him in this context.

The Judge found after hearing from a procession of former colleagues at Swindon and what seems to have been some very unsatisfactory evidence on behalf of the Defendant that the comments were not justified.

He went on to find that this was not akin to the situation where an employer gives a reference, in which case there is clear law that a duty of care will usually be owed to the employee. He also found that it was not comparable to the situation where disappointed beneficiaries of a Will can claim against a negligent Solicitor even though they are not the subject of the negligence (the client being the Deceased.)

He treated it as being a novel case not covered by any previous authority and went on to consider whether it was sufficiently analogous to previous cases that it was appropriate to extend the law of negligence to cover this situation. He decided that it was - the Claimant had suffered not insignificant financial loss, the Defendant had clearly realised that this was a possible outcome of the comments and the previous relationship between the parties was sufficiently close that it was fair and reasonable to impose liability on them, even though the employment relationship had ended 6 years before.

He went on to find that the email had caused the loss as the detailed reasons given in the email for excluding Mr McKie from Swindon College had ultimately been the cause of his dismissal.

The Court will in due course have to decide on the amount of damages unless the case is settled or there is a successful appeal. Given that this is a novel case and there may be scope for argument about the extent of the duty of care it would not be a great surprise if an attempt is made to appeal.

The lesson for employers is to be very careful before making any comment to a third party about an existing or past employee. Swindon were not a referee for the Claimant and there was no obligation on them to say anything to the University at all. If they had not done so they would have had no legal liability if anything had gone wrong at the University.

Given that volunteering opinions as opposed to basic facts in a reference is dangerous enough in itself, when you are not even asked for a reference it may be that "silence is golden."

Always bear in mind that in the High Court damages are unlimited and can exceed the limits which would apply to an Unfair Dismissal claim in the Employment Tribunal.