Thursday, February 23, 2012

Never Constructive Dismissal on a Sunday!

The BBC reports that a Christian has lost her claim for Unfair Dismissal after she was required to work on a Sunday.

Miss Mba claimed constructive dismissal after being required to work on Sundays. She was a carer for disabled children and the Tribunal accepted her employer's argument that it had a duty to provide weekend care.

The full facts of the case are not clear from the brief report. Constructive dismissal involves having to show a fundamental breach of contract by the employer. It is not apparent what breach the Claimant was alleging.

Some may seize on this case as evidence that there is a bias in the legal system against practising Christians but the previous case law offers little basis for that complaint and there does not seem anything obviously unfair about the outcome of this case.

Other than for certain workers in the retail sector who were employed before certain specific dates or who give a written notice to their employer to "opt out", there is no legal right to refuse to work on a Sunday for religious reasons.

Imposing a requirement to work on a Sunday could conceivably amount to indirect discrimination against Christians on the basis that the requirement places them at a particular disadvantage compared to those who do not worship on a Sunday (although this is not self-evident - lots of people would prefer not to work Sunday on the basis that it is even in secular circles generally considered a day of rest.)

However, unlike direct discrimination (treating someone less favourably because they are e.g. a Christian), indirect discrimination can be successfully defended if it is "justified" which means it is a proportionate means of meeting a legitimate aim.

Cases on this point have gone in both directions - a care worker who was put on a permanent rota to work Sundays succeeded with her case. A Seventh Day Adventist who did not want to work in a travel agents on a Saturday (her Sabbath) lost because it was considered reasonable to require her to work on the peak day of the week for holiday bookings and that it would be unfair to expect her colleagues to work every Saturday when they equally preferred not to.

Employers seeking to impose a requirement which may impinge on someone's ability to exercise their right to follow their religion should always consider what the reason is for the requirement and whether there are other means of meeting it. If other staff have no problem with working Sundays then requiring a Christian who does not want to may be difficult to justify.

Monday, February 20, 2012

Court of Appeal backs Nurses Dismissed for Restraining Patient

The Court of Appeal has overturned the decision of the EAT and has reinstated the original finding of an Employment Tribunal that 2 Suffolk nurses were unfairly dismissed after they restrained an elderly patient by tying the legs of his mobile chair to a table.

Ms Crawford and Mr Preston had adopted this technique in order to inhibit an 87 year old dementia patient from moving when he was behaving in an extremely agitated manner (including spitting, swearing and throwing things around) to the extent that they were concerned about his own safety.

It was also alleged (but denied) that the patient was additionally tied to the chair with a sheet across his chest.

The decision maker tested Ms Crawford's evidence of what she had done by attempting to recreate it. He was unable to do so and decided that he did not therefore believe her. Ms Crawford and her representative were not present when this test was carried out.

Both nurses were dismissed for gross misconduct and brought Unfair Dismissal claims in the Employment Tribunal.

The Tribunal found the dismissals unfair. Some of the decision maker's factual findings were unsustainable. There were also procedural problems - the first statement taken from the first person to complain was not shown to the decision maker (when this would have potentially made a difference to his findings) and the "test" should not have been done without Ms Crawford or her representative being present. No reasonable employer on the evidence would have found that the patient was tied to the chair with no attempt to release him. No reasonable employer would have found that what had happened was a "physical assualt" justifying the "career changing decision " that dismissing a nurse entails (given the obligation to report the matter to the nurse's professional body - which can then make it impossible to work in the sector again.)

The Employment Appeal Tribunal overturned that finding. It found that the Employment Tribunal had substituted its view for that of the reasonable employer, which is not permissible - the test is whether the actions of the employer came within "the range of reasonable responses."

The Court of Appeal disagreed. It said that the Employment Tribunal had been entitled to conclude as it did. Whilst it disagreed with one of the Tribunal's conclusions, sufficient of the grounds on which the dismissal had been found to be unfair were justified and the original decision was therefore reinstated.

Even if it was wrong on the procedural points the Court of Appeal did not think that a reasonable employer would have dismissed members of staff with 20 years' service for doing what they did. It had not violated the patient's dignity any more than any other method of restraint would have done and was not greatly different to two nurses on a previous shift holding his chair to the table.

In giving the leading Judgment Elias LJ took time to express concern that in situations like this where a complaint was made there was a growing tendency to automatically suspend the employees in question, regardless of the likelihood of the complaint going anywhere. He stressed that suspension should never be a "knee-jerk" reaction and that it could be a breach of the implied duty of trust and confidence towards the employee if it was. Employees who are suspended can find it belittling and he wondered whether the mere fact of suspension might actually predispose the person hearing the disciplinary to presume guilt.

He was particularly concerned that the Police had been called in. Whilst employers in the public sector have to be transparent, they also owe duties to the employees and this should not involve "defensive management responses which focus solely on their own interests." There had never been any suggestion that the nurses were acting in anything other than the best interests of the patient and the Trust should have given more thought to whether there was any realistic basis for thinking that their actions might be criminal.

Elias LJ's footnotes are, with respect, a useful and perhaps overdue corrective to the tendency to treat every departure from textbook practice in the health care sector as serious misconduct justifying draconian measures with drastic consequences.

Thursday, February 16, 2012

Oil Worker in the Libyan Desert is a British Worker - Supreme Court

The Supreme Court has once again been wrestling with the vexed question of who can bring a claim in Great Britain for Unfair Dismissal.

Mr Ravat lives in Preston (England.) He was employed by a (UK) subsidiary of the (American) oil company Haliburton based in Aberdeen ( Scotland.) He was made redundant and claimed Unfair Dismissal.

At the time of his redundancy he was carrying out work in the (Libyan) desert for the benefit of another (German) subsidiary of Haliburton. He "commuted" to and from Libya, spending 28 days on and 28 days off, the latter in Preston (England.)

In 2003 when he was first sent to Libya (having previously worked in turn in England and in Algeria) he had sought confirmation from his employer that he would continue to be covered by UK law and had been assured that he would.

For some obscure reason (!), the Tribunal system found this extremely simple arrangement (!) difficult to categorise in terms of whether an Employment Tribunal in Great Britain (specifically Scotland, where his employer was based) had jurisdiction to hear his Unfair Dismissal claim.

The legislation on Unfair Dismissal used to provide at one time that the right to claim did not apply to an employee who "ordinarily works outside Great Britain." This clause however no longer appears - the Employment Rights Act 1996 is completely silent on the point.

In 2006 the House of Lords considered the position in Lawson v Serco. In effect this decided that someone who worked and was based abroad would not normally be covered by the legislation but there might be exceptional circumstances where the connection with Great Britain was sufficiently clear that there would be jurisdiction to hear the case.

This would include "peripatetic" employees such as an airline pilot who is based at Heathrow but "works" in the skies all over the world. It would also include someone posted abroad for the purposes of a business conducted in Britain (e.g. the Moscow correspondent of a UK daily newspaper) and an employee working in a political or social British enclave abroad (e.g. embassy staff, someone working at an army base on the Rhine.)

Subsequent case law has extended this to cover the situation of employees in an EU school who were employed by the British Government under contracts governed by English law.

The Employment Tribunal decided that there was a sufficiently substantial connection between his employment and Great Britain to make it appropriate to hear the Claim.

The Employment Appeal Tribunal overturned this - he was doing work for a German company in Libya.

This was then overturned in turn by the Extra Division (the Scottish equivalent for this purpose of the Court of Appeal.) And so the case ended up in the Supreme Court for a final decision.

Mr Ravat won. The Supreme Court decided that it was not necessary to shoe-horn the Claimant in to one of the categories in Serco. It simply had to be decided whether the connection with Great Britain was sufficiently strong and substantial that jurisdiction should arise and they felt that here it was. Whilst not conclusive, the facts that the Claimant's employer was based in the UK, that he lived in the UK and that he had been told UK law would apply to him were all factors to be weighed into the equation.

Whilst this outcome seems fair in this particular case, it has to be said (with respect) that the law still does not seem to be at all certain as to in what circumstances jurisdiction will arise and in which it will not. There will no doubt be further litigation and difficult borderline cases in future.