Wednesday, March 14, 2012

Marital Status Discrimination - Because of Marriage Not Love!

The Employment Appeal Tribunal has handed down a Judgment which calls into question some of the reasoning in a recent case which said that discrimination on grounds of marital status could be unlawful if the reason was that the person was married to a particular individual.

Prior to the case of Dunn it was unclear whether the Claimant had to show that the employer discriminated against the employee because they were married full stop or only had to show that marriage to a specific person was a problem when marriage to another would not have been. Dunn said it was the latter.

However the EAT has now heard the case of Mrs Hawkins.

Her husband was the Chief Executive of the First Respondent company. In 2009 Mrs Hawkins became an employee and in 2010 Mr and Mrs Hawkin's daughter also took up a role with the company.

In late 2009 the First Respondent's Chairman had instructed Mr Hawkins not to employ any family members in the business, to avoid allegations of nepotism and the risk of conflicts of interest (or so it claimed - this was an issue in dispute in the case.)

Mother and daughter were dismissed on the basis that the First Respondent said that they had been employed in breach of this instruction.

Mrs Hawkins claimed that this was unlawful discrimination against her on the grounds of her marital status. The First Respondent applied to the Employment Tribunal to have her Claim struck out as having no reasonable prospect of success and the Tribunal agreed and struck out the Claim.

Mrs Hawkins appealed to the EAT. By the time the EAT gave its Judgment Dunn had been decided (which was not the case when the Tribunal had made its original decision or when the EAT had heard oral submissiosn on the appeal.

The EAT carefully considered the case law including Dunn and rejected the appeal. It found that to the extent that Dunn suggested that discrimination because of marriage to a particular person was always unlawful this was not correct.

If someone is treated less favourably because they are married to a particular person in circumstances where if they had another form of close personal relationship (e.g living together, father and daughter) they would not have been then their marital status is the reason for the treatment and that is unlawful.

If the treatment would have been the same, as would have been the case here (as evidenced by the dismissal of the daughter) then the marital status was not the reason for the discrimination and it is not unlawful.

As such the Tribunal had been right to strike out the case.

Marital status discrimination is rarely alleged. The legislation dates back to a time when many employers had a policy of dismissing female employees as a matter of course when they married.

The decision in this case does not mean that someone can always be dismissed with impunity because they are married to a particular person. If Mrs Hawkins could have pointed to a male comparator who had been treated differently then she may have had a claim for sex discrimination. If she had the necessary 12 months' service she might have been able to claim Unfair Dismissal. Most importantly, if 2 cohabitees had worked for the company without difficulty her Claim might well have gone further.

Thursday, March 01, 2012

Notice of Dismissal - Take No Notice

Yet again the Employment Appeal Tribunal finds itself passing Judgment on a case involving Solicitors - and not for the first time Solicitors who appear to have struggled to understand employment law.

Mr Harvey started work for Parker Rhodes Hickmotts on 1st September 2009. To qualify for protection against Unfair Dismissal he had to still be employed by them on 31st August 2010. (This 12 month qualifying period will from 6th April be increased to 2 years for new starters. There are exceptions to the requirement for a qualifying period but none of them applied in this case.)

The Firm concluded that it did not have enough work of the kind Mr Harvey did to justify retaining him. On 28th July 2010 he was given a letter informing him that his employment would terminate on 31st August 2010. He was expressly told by the Managing Partner that they were finishing him then in order to avoid him having any right to claim Unfair Dismissal. (This was perfectly legitimate - he was given the correct amount of notice to which he was entitled under his contract.)

The Managing Partner then began to worry over whether the 12 months was up on 1st September 2010 (as she had evidently wrongly assumed initially) or on 31st August.

To avoid any doubt she gave Mr Harvey a fresh letter terminating his employment with effect from 28th August.

Mr Harvey subsequently brought a claim for Unfair Dismissal. He said that his employer could not unilaterally vary his notice without his agreement and he was therefore dismissed on 31st August, and had the necessary qualifying service to be able to bring a Claim.

The Employment Tribunal agreed.

The Firm appealed to the EAT, who overturned the decision and dismissed the Claim. Mr Harvey was dismissed on 28th August and therefore fell just short of the 12 months.

The Tribunal had overlooked 2 EAT decisions that said that where an employee had been given notice and the employer had then summarily dismissed them the earlier date was their date of termination. The employee in those circumstances might have a claim for wrongful dismissal if they were not given their contractual notice, but that did not apply here and the remedies for wrongful dismissal are generally very limited (i.e. usually just notice pay) anyway.

The principles in those cases applied equally to someone who was given shorter notice the second time round as they did to someone who was given no notice at all.

This all has the effect of meaning an employer can more easily give an employee fresh notice than varied notice!

One other trap for the unwary is that if the employee does not have a contractual notice entitlement in excess of the statutory minimum then if they are dismissed without notice their statutory minimum entitlement is added on to their qualifying service. This means someone in the first year of employment whose contract does not specify any more than 1 week's notice will have to be dismissed before they clock up 51 weeks.

The message is clearly to check time limits carefully and to seek advice if you are not sure, even if you are a Solicitor.