Friday, December 20, 2013

Mr Tan's Ultimatum to Malky

The BBC reports that Cardiff City Manager Malky Mackay has received an email from the Premiership club's owner Vincent Tan telling him that he must either resign or be dismissed.

Mr Tan's tenure at the Club has previously attracted attention after he was on the receiving end of the fans' ire when he decided to change the colour of the shirts in which the team (nicknamed the "Bluebirds" for what will be obvious reasons) to red.

The Employment Tribunals have long held that where an employee is told that if they do not resign their dismissal is inevitable this is in reality a dismissal by the employer (and of course potentially unfair dismissal), even if the employee hangs around for long enough to negotiate terms of exit so as to extricate as much from the wreckage as they can (e.g. an agreed reference.)

This is to be distinguished from the situation where the employee is given a genuine choice but to resign, with time to reflect but in the knowledge that dismissal is highly likely if they do not go of their own free will. This is not  uncommon  in the context of a disciplinary hearing, where an employee will sometimes take the hint and resign because this looks better on their CV, or avoids a dismissal appearing on a reference.

Even if there is not an actual dismissal by the Employer in this situation there will often be a constructive dismissal. Informing the employee that one way or another you are bringing the contract to an end is as clear a statement as is possible of an intention no longer to be bound by the terms of the contract - a fundamental breach entitling the employee to resign and claim.

Mr Mackay has understandably not resigned - he will no doubt wait for the axe to fall and continue to be paid in the meantime.

No doubt he will be picking up a cheque from Cardiff City sooner or later. Whether they will find it easy to find a willing replacement remains to be seen.

Friday, November 01, 2013


Employment Relations Minister Jo Swinson has warned that the Government is looking to crack down on employers who fail to pay Employment Tribunal Awards.

This follows the publication of research undertaken for the Department for Business Innovation and Skills that showed that only 49% of Tribunal Awards in England and Wales are paid in full and 35% are not paid at all.

12% had to resort to taking enforcement action through the County Court to achieve full or partial recovery.

If it were not for the fact that the Government pays redundancy and certain other payments in the event of insolvency the amount of recovery would be even lower.

Bearing in mind the Government’s obligation as a matter of EU Law to provide an effective remedy in discrimination law this could leave the Treasury vulnerable to claims from disaffected successful Claimants.

The most common reasons for non-payment were that the Company no longer existed or was insolvent (38%) or refused to pay (29%)

The most common reason given for not attempting enforcement through the Courts was not knowing this was possible (24%)

The report recommends that awareness of the available enforcement options should be improved through better communication.

Ms Swinson said that this was not simply about justice for employees but also about providing a level playing field for competition between employers – so that those who comply with their legal obligations are not disadvantaged compared to those who do not.

The possibility of fixed penalty notices for late payment, and naming and shaming defaulters (which has been tried in the context of the National Minimum Wages) has been raised. In addition there is talk of looking closely at whether “Phoenix companies” should escape liability and even whether Directors should have personal liability. 

In the past CAB had called for a system where the Government paid in full and then took responsibility for collection. This seems unlikely to happen in these austere times but there may be some tweaking of the current insolvency payments system.

Tuesday, October 15, 2013

When You Say You Are Resigning - You Mean It!

The Employment Appeal Tribunal has held that an employee of HMP Wakefield resigned with immediate effect when she submitted a resignation letter, with the result that an Employment Tribunal Claim which was lodged within 3 months of the end of her "notice period" was too late and her Claim could not proceed.

Mrs Hibbert was employed as a Works Escort at the Prison. She raised a grievance and appealed when she was unhappy at the outcome. Following this she was invited to a capability meeting and this was due to take place on 26th June 2012. At her request this was put back to 2nd July. On 27th June the grievance appeal was rejected. Mrs Hibbert hand delivered a letter drafted by her Solicitors. This included the words "...I have no alternative but to resign my position."

Her Manager wrote back suggesting that she thought this decision might have been influenced by the impending hearing and allowing 5 days for Mrs Hibbert to be clear that this was what she intended to do. Mrs Hibbert's Solicitors wrote on her behalf on 9th July making clear that the decision had not been made because of the hearing (or at least not solely because of the hearing) and setting out some matters their client wanted addressed so that she could consider her position.

The Respondent replied to Mrs Hibbert on 11th July that as she had not taken advantage of an offer to discuss her issues her resignation was accepted and that as the Respondent was entitled to 4 weeks' notice her employment would end on 27th July (i.e. 4 weeks from the date of the resignation letter.)

The Respondent alleged that the Unfair Dismissal Claim was lodged out of time as it was lodged after 28th September 2012. The Employment Tribunal found that the Claim was in time as it was lodged within 3 months of 27th July 2012. The original letter was simply stating an intention to resign and not setting a date and the subsequent correspondence set the date.

The EAT disagreed. It said that the natural meaning, regardless of what the Claimant intended, of the resignation letter was that the Claimant was resigning with immediate effect. Once she had done so then as this was not a "heat of the moment" situation (where a resignation or a dismissal may not have the usual legal effect if the Tribunal finds that the person did not really mean to resign or sack someone) then the subsequent correspondence could not affect the date of termination. The Claim was therefore out of time.

This is yet another salutory reminder of how strictly Employment Tribunal time limits are enforced and that "a miss is as good as a mile" in an Unfair Dismisal case. The lessons are to make sure that any resignation letter is completely unambiguous as to when it takes effect and that when calculating the time limits for lodging the papers ensure that you do so based on the earliest possible date for these to expire. Interestingly the Solicitors were no longer acting for Mrs Hibbert by the time of the EAT - is she about to turn her ire on them,one wonders?

Thursday, September 26, 2013

Christian Not Sacked for Sending Religious Emails

The Employment Appeal Tribunal has handed down Judgment in a case where there has been some media reporting locally to the effect that "a Doctor had been sacked for sending colleagues religious emails." Viewers were invited to telephone BBC Midlands Today last night to say whether they thought that this was fair.

In actual fact (as tends to be the case in a lot of religious discrimination cases) the details of the case were considerably more nuanced than that. Dr Drew worked as a paediatrician for Walsall Healthcare NHS Trust. By all accounts he was very good at the job. However there appear to have been issues over how he interacted with his colleagues. One (but by no means the only, or possibly as far as his colleagues were concerned the main) issue which arose was that on occasions he included religious references in emails. He is a practising Christian. The Head of Nursing raised a grievance about him, and he did likewise about her.

Whilst the grievance was not against Dr Drew was not upheld a number of recommendations were made which included concern about his style of communication. This was not solely about the religious content - there appears to have been concern about him sending very lengthy communications in what was considered to be an inappropriate tone and copying in large numbers of recipients. Certain colleagues appeared to perceive that he was constantly criticising the service and undermining them. Dr Drew raised a further grievance which included concerns about the recommendations and in particular took exception to the suggestion that he should keep his personal religious beliefs out of his dealings with colleagues.

This grievance was referred to an independent review panel. In the meantime Dr Drew continued to challenge the recommendations. The panel found that some of the things which had happened to Dr Drew had been inappropriate but agreed that his use of religious language was not appropriate. It also criticised his communication style more generally saying this was undermining the service and damaging the relationships with his colleagues. It made a series of recommendations which included that he should stop communicating in the way he did, apologise for the impact his communications had had and desist from undermining the Trust by raising issues in the media rather than resolving them internally.

Whilst there was a recommendation that he refrain from using religious references in communications this was a very small part of the overall report. Dr Drew was not prepared to accept the recommendations without qualification. He raised a series of objections - not just to the request not to use religious language. He was invited to accept the report without any caveats, as all of his colleagues had been prepared to do. He refused to agree to this and disciplinary action was taken. The basis of this was that he was failing to comply with reasonable management instructions to resolve the issues between him and his colleagues.

Following a disciplinary hearing he was dismissed. This was not, as has been suggested, purely because he emailed an innocuous prayer to colleagues. It was because he would not accept the report, and also because he was found to have breached confidentiality by distributing correspondence to individuals despite express instructions not to do so.

He brought proceedings for Unfair Dismissal, religious discrimination and victimisation. The Employment Tribunal rejected these quite some time ago (which makes some of the reporting very odd, as they seem to misunderstand the distinction between the Employment Tribunal and the EAT.) He appealed against the dismissal of his claims.

The EAT rejected his appeal. The details of the appeal are not actually that interesting - in effect he was trying to re-argue his case on appeal when the EAT only has jurisdiction to consider errors of law or decisions that are so obviously wrong as to be perverse - and the EAT does not appear to have been overly impressed by the majority of arguments on his behalf.

Why the case is worth looking at (if you are into that sort of thing) is because it is another example of a case that is portrayed in the media as evidence of persecution of Christians in the workplace that proves to be nothing of the sort on closer inspection. As the EAT pointed out, anyone of any persuasion who had behaved as Dr Drew did in respect of their particular beliefs would, it was found by the Employment Tribunal, have been treated the same way.

The BBC report also raised the fact that the EAT Judgment did not deal with the whistle-blowing aspects of the case. This was no doubt because they were not amongst Dr Drew's grounds of appeal!

Wednesday, September 18, 2013

EDL Service Refusal - Free Meal But No Sacking

The BBC reports that a Selfridges employee who refused to serve a customer because they were with the English Defence League Leader "Tommy Robinson" (not his real name)will not face any further action. The employee was initially suspended for breaching company policy. The identity/ethnic background of the employee is not apparent. Failure to obey a lawful management instruction would potentially be gross misconduct leaving an employee at the risk of being fairly dismissed without notice. Even in the absence of an express policy a shop worker who refuses to serve a particular customer because they found something objectionable about the customer would have to be very careful. Such conduct could be argued to bring the employer into disrepute, especially if the customer was not doing anything wrong - if e.g. you refuse to serve someone who is swearing in your face that would of course be a different "kettle of fish." The legal test for a fair misconduct dismissal is whether dismissal is "within the range of reasonable responses" - i.e. is it possible a reasonable employer might dismiss? As different employers will have a different attitude to this sort of situation whilst many may have sympathy with an employee taking a principled stance a Tribunal could easily find that dismissal was within that range, given that the Tribunal cannot substitute its own view. Considerations would include the reason for refusal to serve, whether the employee was rude to the customer, length of service and previous disciplinary record. It is not unlawful to discriminate against a customer on grounds of political affiliation,although it is potentially unlawful to dismiss an employee on these grounds. However an employee who refused to serve someone because of a "protected characteristic" (race, gender, religion, age,disability, sexual orientation etc) would be doing something unlawful and any such conduct would almost certainly amount to gross misconduct justifying a summary dismissal. "Mr Robinson" and his companion were apparently given a free meal by Selfridges by way of an apology, a response which has itself attracted some criticism.

Monday, August 12, 2013

Throwing a Sickie? Beware of Facebook!

The Independent reports that a New Zealand woman who was sacked for allegedly "throwing a sickie" has been ordered to hand over Facebook and Bank records to show whether she was genuinely ill. She was taking her employer to the local equivalent of the Employment Tribunal. Judgment is now awaited. The decision to order disclosure would probably have been the same in the UK. If the evidence was relevant because it would show that the employee was not genuinely ill (or prove that she was) then it is very likely that she would have been required to let the employer see it. Tribunals in a number of employment cases have held that there is no expectation of privacy in respect of what is on social networking sites. Even if you have strict privacy settings or only a small circle of online "friends" the information is to be treated as being in public domain, not least as people can always forward comments on to their own "friends." Generally parties to Employment Tribunal proceedings are under an obligation to disclose documents (which includes things like Facebook updates, text messages and pretty much anything else which contains information) if it is relevant to an issue in the case, whether or not it is helpful to the case of the party whose information it is. The message to employees - if you are not genuinely ill make sure you do not incriminate yourself by posting pictures of that away game you went to while you were supposed to be on your deathbed. The message to employers - you are entitled to scrutinise whether someone's absence is genuine and ask for evidence if you are not sure. However do not jump to conclusions. If you dismiss someone without a fair hearing and without reasonable grounds for doing so then you can be liable to pay compensation for Unfair Dismissal. If someone is off sick with stress then going for a walk may be therapeutic rather than evidence that they are "swinging the lead."

Monday, July 29, 2013

Employment Tribunals - Now You Have to Pay

As of today, for the first time in their history the Employment Tribunals will charge fees to parties.

There are 2 tiers of fees for Claimants.

For unpaid wages and certain other less complicated cases there is a fee of £160 to pay to begin the case and a further fee of £230 to pay for the Hearing itself. For unfair dismissal, discrimination and certain other potentially more complex matters the issue fee is £250 and the Hearing Fee is £950.

There are other fees to pay when making an application in proceedings, including an application for reconsideration of a decision, and for an appeal to the Employment Appeal Tribunal.

This brings the Employment Tribunals in line with the civil courts where the people using them have to pay and is clearly intended to reduce the number of claims, which are perceived as a hindrance to business.

It rather overlooks the fact that the parties, as taxpayers, have already paid for the justice system. If people have genuine Claims then they should not be deterred from pursuing them because of lack of funds. If Claims are vexatious then the Tribunal already has powers to strike them out or award the employer its costs. 

The obvious problem with fees is that if you have just been sacked or if your employer does not pay your wages you cannot afford to pay the Tribunal Service. To address this there is a fee remission system.

If you receive certain state benefits there are no fees to pay.

Similarly if your gross annual household (both partners) income is below certain limits (the figure varies depending on the number of children you have) or if your net monthly disposable income after various allowances are applied is less than £50 there are no fees to pay. If your disposable income is more than £50 you may qualify for a partial rebate.

As part of the introduction of fees the Tribunal Service has introduced new Claim (ET1) and Response (ET3) Forms but as of 10.00 a.m today these have not yet gone live so how anyone is supposed to make a Claim to the Employment Tribunal today is anyone's guess.

But perhaps that is the idea... 

Tuesday, April 30, 2013

Blackburn Rovers Pay The Penalty for Employing Henning Berg!

Blackburn Rovers FC have been involved in a "mini-league" within this year's Npower Championship, competing with Blackpool and Wolverhampton Wanderers to see who can get through the most Managers in a season.

One of the unfortunate office holders at the famous old Lancashire club this year was Henning Berg, a key part of their 1994-1995 Premier League title winning squad (at a time when success meant that their managerial turnover was not as great as it now is.)

Mr Berg's managerial career at Ewood Park was to prove significantly less illustrious than his playing era there and after less than 2 months in the job he was dismissed.

Following his dismissal he commenced High Court proceedings claiming the £2.25 million which he said he was entitled to under the terms of his contract, amounting to his salary for the balance of his contract (which was supposed to last until June 2015!) His contract said that Blackburn could terminate his contract with immediate effect if they paid him this sum as liquidated damages.

Blackburn's Solicitors filed an Admission with the Court asking for time to pay the debt by instalments over 5 months. Mr Berg's Solicitors applied (wrongly) for Summary Judgment rather than simply applying for Judgment on the Admission.

Blackburn then appointed new Solicitors who pointed this error out. Mr Berg was directed to apply for Judgment on the Admission (basically filling in a form stating the amount and that he wanted it in one go) and Blackburn were then to file any evidence they relied upon as to why they should be allowed to pay by instalments.

There was then to be a Hearing to decide the "time to pay" issue.

Bizarrely, Blackburn then decided it was going to argue that the money was not, in fact, due to Mr Berg.  They alleged that their Managing Director Derek Shaw had not had authority to agree a contract in such terms with him (their case was that it was supposed to be a 12 month contract and/or that any compensation for termination was supposed to be no more than 12 months' salary.)

They asserted that they had begun disciplinary proceedings against Derek Shaw although this was flatly contradicted by a press release which said that there was no investigation and he had their full confidence.

After close of business the night before the Hearing was due to take place Blackburn's Solicitors sent a draft application to Mr Berg's Solicitors, followed later by a draft, unsigned, Witness Statement in support, seeking to withdraw the admission of liability. On the morning of the hearing a materially different signed Witness Statement was served.

In addition to arguing that Derek Shaw did not have authority Blackburn alleged that the contractual provision was a penalty clause. Penalty clauses are legally unenforceable.

The matter was despite this unsatisfactory procedural history listed for a full hearing of the application but on the strict condition that Blackburn paid the outstanding balance into Court.

The Application was heard on 26th April and Judgment given on 29th.

The Judge began by deciding whether if permission to withdraw the Admission was granted there was any realistically arguable defence.

With regards to the penalty clause argument His Honour found that the law relating to these was irrelevant since the provision was not a penalty clause. It was not a payment for breach of contract. It was a payment to enable Blackburn to exercise a right it had under the contract , i.e. to terminate the contract early if it paid up the balance of the salary.

With regards to the authority argument, even if the Judge accepted that Mr Shaw only in fact had authority from Blackburn to agree to a 12 month contract/a contract with compensation capped at 12 months' salary he held that this was not relevant as between Blackburn and Mr Berg (as opposed to a claim by Blackburn against Mr Shaw for committing them to an excessive contract or a claim by Mr Berg against Mr Shaw for wrongly claiming to have authority.)

Mr Shaw was Managing Director of Blackburn. Mr Berg was entitled to believe that the MD of a football club has authority to negotiate a prospective manager's contract. As he was held out as having such authority and Mr Berg was never made aware of the alleged limits to his authority Blackburn were bound by the contract.

Given that there was no arguable defence there was no point in allowing the Admission to be withdrawn.
In short, Blackburn had to pay up.

All in all the litigation appears to have been something of a "dog's breakfast." This may not come as a surprise to fans of Blackburn Rovers, who have (to put it mildly) been underwhelmed by events since Venkys became their owners in 2010.

The message to employers - make sure any limitations on authority are made clear to the person you are negotiating with, make sure contracts are clear and make sure you can terminate without excessive cost if you realise early on you have made a mistake in your appointment.

Monday, April 22, 2013

Employee Resigns by Cake!

An employee of the UK Border Force has tendered his resignation by writing it in icing on a cake specially baked for the purpose, the BBC reports.

Chris Holmes was employed at Stansted Airport. He wanted to devote more time to his family and to other business interests and thought of a novel way of handing in his notice. The cake was apparently accompanied by a more conventional letter.
Sometimes contracts of employment, especially in the context of executives, will require notice to be given in a particular way (often in writing to the registered office.) Subject to that, as long as the intention is sufficiently clear there is no rule of law that a resignation or a dismissal has to be given in writing or even in formal language.

Where informal words are used there can often be ambiguity about whether there has been a resignation (e.g. does "I'm off" mean the person is not coming back at all or just leaving for the day because of the preceding row?) As such the case law tends to require there to be unambiguous words unless the intention is clear from the surrounding context (e.g. the person never comes back; the P45 is in the post the next day.) In addition because it is recognised that things can be said in the heat of the moment the cases suggest that if a hasty "resignation" or "dismissal" is taken back pretty much straight away then it will be deemed never to have existed - although this means minutes or hours, not that if you change your mind a day or two later (once you have taken legal advice?) that you can escape the consequences of your hasty words.

Whilst apparently this departure was amicable we shall await the first Unfair Dismissal case where the words "You're Fired!" are written in Alphabetti Spaghetti... 


Thursday, March 14, 2013

Sick Swimmer's Shark Sacking

The BBC reports that a 62-year old charity worker has been summarily dismissed by the Boys and Girls Club for which he had worked for 10 years after he was filmed saving lives in Australia by wrestling with a shark.

Paul Marshallsea from Merthyr Tydfil was off sick from work with stress at the time.

It appears that on his return to the UK he was greeted by a letter on the doormat at home informing him that he had been dismissed because the incident had allegedly destroyed his employer's trust and confidence in him.

The dismissal appears to have taken place without any investigation or disciplinary hearing.

Save and except in the most exceptional case (e.g. where someone is caught literally with their hands in the till in the act of stealing where there is no possible mitigation or alternative explanation) any dismissal which takes place without a hearing is virtually certain to be found to be unfair.

The employer might try and argue that had it followed a fair procedure then it would inevitably have fairly dismissed Mr Marshallsea anyway, and that he should therefore get no compensation.

We shall have to wait and see how this case develops but on the face of it this is not a clear "been caught stealing" case and it is difficult to see that the outcome would inevitably have been fair dismissal. No medical investigation was carried out into whether Mr Marshallsea's actions were inconsistent with his sick note. The fact that he was off sick with stress does not mean that he should not have gone on holiday - quite often the medical advice will be to have a change of scenery. It is not the same as, for example, someone who is allegedly off work with a broken leg but is filmed playing football.

Although it is possible to dismiss someone for "swinging the lead" employers should only do this in the clearest of cases or where there is medical evidence to substantiate the allegation - and certainly not by means of a letter which is waiting for the employee when they fly back into the country.

One other thing which is interesting is the apparent reference in the dismissal letter to trust and confidence. There seems to be a growing tendency for employers to use this as a justification for dismissal as if it in some way dilutes the necessity to prove that the employee has done something wrong. Tribunals are becoming wise to this. If the allegation is of misconduct then the employer should say so, and be prepared to justify it on the evidence.

Tuesday, March 12, 2013

Court of Appeal Confirms "Double Jeopardy" Decision

Last May I reported on the Employment Appeal Tribunal decision that it had not been unfair for two social workers involved in the "Baby P" case to be dismissed for gross misconduct even though they had previously been given a written warning in respect of the same case.

In essence after the initial simplified process a new manager had come in and had taken the view that the original sanctions had been too lenient and that further disciplinary action was justified. This led to Mrs Christou and Ms Ward being summarily dismissed, a decision which was upheld on appeal.

The Employment Tribunal found the dismissals fair and the EAT agreed.

The Court of Appeal has now rejected Mrs Christou and Ms Ward's appeal against the EAT's decision.

The appeal to the Court of Appeal was based on three arguments (putting to one side an allegation of bias which was also rejected) - i) that the legal principle of res judicata applied and the second decision was invalid as it was reopening the first disciplinary procedure; ii) that to discipline the Claimants again was an abuse of process; iii) that the Employment Tribunal's majority decision gave inadequate reasons for finding that it was fair to reopen the process.

The Court of Appeal found that the principle of res judicata did not apply. Disciplinary procedures in the workplace are not the adjudication of a dispute, they are a means of an employer determining whether an employee has done something wrong or not. As such save in exceptional circumstances (e.g. where an outside arbitrator is appointed) the principle is not applicable.

With regards to abuse of process, it was questionable whether the principle was applicable but even if it was it was not an absolute bar and the onus was on the Claimants to show that there was an abuse. In essence this did not take matters very much further forward - the Tribunal basically had to decide whether instigating a second set of proceedings was fair. If it was, then it was (probably) not an abuse of process. If it was not fair then it does not really matter whether that is called an abuse of process or not.

The Court went on to hold that even if res judicata had applied it would still have been necessary to consider whether the dismissals were fair. They would not cease to have happened just because the Respondent had reopened the matter in breach of the principle.  In most cases if res judicata applied the Tribunal would be likely to find that it was an abuse of process and unfair - but this was not inevitable. Once again, in reality the question comes back to whether it was fair to reopen the matter.

In this case the Court found that the Tribunal had given perfectly adequate reasons as to why it had been fair to reopen the matter. The allegations on the second occasion were not the same as and were more serious than the ones which were considered on the first occasion and given the risk to the public dismissal was within the range of reasonable responses.

The case is not authority for the proposition that it will always be fair to reopen a disciplinary process where a more serious view of events is taken at a later stage. In fact if anything it strongly implies that this will very often (perhaps even usually) be unfair and that the fact that dismissal might be reasonable on the second occasion does not mean that the initial procedure was defective.

Any employer wanting to reopen a disciplinary matter where the employee has done nothing else wrong since the first decision was handed down would be well advised to tread carefully and to take specialist advice.

Wednesday, January 16, 2013

Secularists 3 Christians 1

In 4 conjoined cases the European Court of Human Rights has ruled that 3 British Christians did not have their human rights breached in the workplace but that in the 4th case there had been a breach.

Interestingly the press and media coverage has focused on the case that succeeded much more than the 3 cases that failed.

There were 2 types of case.

Ms Eweida and Mrs Chaplin, a BA employee and an NHS nurse respectively, claimed that they had been discriminated against because of uniform codes which prevented them from wearing crosses at work.

Ms Ladele, a registrar of births marriages and deaths, and Mr McFarlane, a relationship counsellor claimed that they had been discriminated against at work because there had been adverse consequences as a result of their religious objections to providing their services to gay couples.

All of their Claims had (ultimately) failed in the domestic courts under the UK's laws against religious discrimination and they therefore took their cases to Europe.

The European Court decided that it was not possible to say that there was no breach of the right to freedom of religion simply because someone could avoid the problem by changing job. This was simply a factor to be weighed in the balance in deciding whether the interference with the right was proportionate.

Ms Eweida's case succeeded. The Court found that a fair balance had not been struck between the importance of her right to exercise her religion and BA's legitimate wish to project a particular corporate image. The cross was discreet and would not have detracted from her professional appearance. Hijabs and turbans were allowed without this having caused a problem. In addition the fact that BA had been able to change the uniform code to accommodate her showed that it could not have been that important in the first place.

Ms Chaplin failed. The NHS in her case justified the ban on her wearing a cross on a chain on the basis that dangling jewellery was not allowed due to the health and safety implications. The European Court decided that health and safety was a concern of greater magnitude than any of the issues raised by BA and that the NHS and the domestic courts were in the best position to rule on this. There had therefore been no breach of the Claimant's human rights.

Ms Ladele's case also failed. The EHCR said that differences in treatment based on sexual orientation required particularly serious reasons by way of justification and as such the employer's aims of providing a full service to all members of the community was a legitimate one. The requirement that Ms Ladele provide her services to everyone was proportionate given that the local authority was also required to protect the rights of homosexuals to equal treatment.

In Mr McFarlane's case he had chosen to voluntarily enrol on a post-graduate training programme with Relate in circumstances where he must have known he would be expected to counsel gay people about their sexual relationships as well as heterosexuals. Weighing this in the balance with the fact that the employer's actions were intended to prevent discrimination against others who had rights to be protected under the Convention the action taken against him was proportionate and there was no breach of his human rights.

The cases strongly suggest that someone who suffers adverse consequences because of objections to homosexuality is unlikely to be able to demonstrate that this is a breach of their human rights. With regards to the issue of wearing religious symbols in the workplace, the position is less clear cut but the decision would tend to suggest that there will need to be cogent reasons for denying someone the right to wear a discreet (whatever that means) symbol of their faith in the workplace.

The outcome will not end the controversy and is neither a victory for secularists or for Christians. It leaves plenty of scope for argument in the domestic courts about the implications but certainly employers who have dress codes which would prevent the display of religious symbols may need to reconsider them in the light of this ruling.

Ms Eweida was awarded £32,000 although this was predominantly costs and only £2000 for hurt feelings. Interestingly she had complied with the dress code, wearing her cross under her uniform, from 2004 until May 2006, when it suddenly appears to have become important for her to wear it openly. It is also worth noting that she insisted on turning up for work wearing it rather than awaiting the outcome of her grievance about the dress code and then went home and remained off work unpaid despite being offered a non-customer facing role on her normal pay. BA changed its dress code in 2007 to allow the cross to be worn. As such one does rather wonder why the case needed to be pursued this far.    

Friday, January 11, 2013

Not Never On A Sunday

Whilst Christian groups were hoping for a definitive ruling that compulsory Sunday working is religious discrimination and others were keeping their fingers crossed for precisely the opposite result, the Employment Appeal Tribunal has (with respect) quite rightly limited itself to deciding the case in front of it.

The EAT went out of its way (after quoting from the 4th Commandment in the book of Exodus) to stress that this was the limit of its finding. Press reports that Christians can be forced to work on Sundays as a result of this ruling are therefore wide of the mark but fairly typical of the standard of analysis and reporting in this field.

Ms Mba is a Christian. She worked for Merton Council as a care worker in a Children's Home. She took the view that her religion required her not to do any paid work on a Sunday. The Home needed staffing around the clock 7 days a week.

The Claimant thought that Merton had promised that she would not have to work Sundays. The Employment Tribunal found that in fact they had not done so but had simply said that it was likely to be possible that she would be rota'd so as to avoid this.

In fact it did not prove possible to ensure that she was not required to work on Sundays. She raised a grievance and this was rejected. She continued to refuse to work on Sundays and was disciplined as a result. Ultimately at the end of May 2010 she resigned and brought a claim for religious discrimination.

Her argument was that this was indirect discrimination because the requirement to work Sundays put Christians at a particular disadvantage as compared to non-Christians.

The central battleground at the Employment Tribunal was whether Merton had shown that the requirement to work on Sundays was a proportionate means of meeting a legitimate aim.

The ET concluded that it was. There was a need to ensure that there was an appropriate gender mix of staff at all times. Exempting the Claimant from Sundays would limit flexibility and impact on other staff. It might mean agency staff had to cover, with the effect that continuity for very vulnerable children would be hindered.

One factor which the ET thought important was that only some Christians considered that not working at all on Sunday was a requirement of their religion. As such the disadvantage to Christians was less than might otherwise have been the case. They also took into account that Merton had offered to arrange matters so that Ms Mba could still attend Sunday worship.

Ms Mba appealed. She alleged that by taking into account that not all Christians refuse to work on a Sunday the Tribunal had incorrectly made a value judgement about her religious beliefs rather than assessing the disadvantage to her on the assumption that this was part of her belief system. She also alleged that there was a higher burden of justification on the employer than the Tribunal had imposed and that there was much more that Merton could have done to accommodate her.

The EAT rejected her appeal. While it agreed that the Tribunal was not there to make value judgements about someone's beliefs, it was legitimate in deciding on the proportionality of the disadvantage to the affected group to take into account that not working on a Sunday was not a "core" Christian belief. Similarly whilst it accepted that the onus was on the Council to justify its policy and not on the Claimant to show that it was disproportionate, the Tribunal had been entitled to find that the Council had met that burden.

Whilst this is certainly not a case of the Courts upholding the persecution of Christians it would be unwise for employers to assume that this gives them carte blanche to impose Sunday working. In this case there were clearly factors justifying a requirement that all staff do their share of Sunday working. These factors might not apply in, for example, a supermarket where continuity of service to an individual service user will not arise.

Wednesday, January 02, 2013

Peter Stringfellow Does NOT Employ Lapdancers - Official

The Court of Appeal has ruled that the Employment Appeal Tribunal had been wrong to overturn an Employment Tribunal Judgment that a lap dancer at Stringfellows was not an employee.

Ms Quashie performed at Stringfellows and "Angels" which are two clubs operated by Stringfellows Restaurants Limited. In December 2008 she was told she could no longer do so (after about 18 months) because of allegations that she had been involved with drugs on the premises.

She claimed Unfair Dismissal in the Employment Tribunal which she could only do if she was an employee. (Given the change in the law about qualifying periods of employment her Claim would have failed anyway now because she had less than 2 years' service, but this did not of course apply at the time.) Stringfellows denied that she was employed.

The Employment Tribunal decided that she was not an employee and her Claim therefore failed.

The arrangement was that the "customers" had to pay her using vouchers called "Heavenly Money" which they bought from the club. The dancer subsequently cashed these in and certain amounts were deducted to cover commission and other expenses owed to the club. The net effect of this could be that the dancer had to pay the club if she had not done enough dances in any particular period. The dancers provide their own outfits although the club recommended a preferred supplier.

If the dancer did not work certain days then they would be "suspended" for the following week. She had to notify them if she was taking holiday. There was no express rule against working elsewhere although the Claimant gave evidence that she believed the management would not have been happy about it.

The basis for the Tribunal's decision was that there was no "mutuality of obligation" - no obligation to provide wages on the one hand and to do work on the other. The club was not in fact obliged to pay the Claimant anything - it was the customers who were paying her. The Claimant did not always have to work and although she had to notify the club if she was taking holiday she did not need permission to take it.

As such one of the essential elements of a contract of employment was missing.

The EAT held that this was wrong. It held that there had been mutuality of obligation and that the club was clearly obliged to pay wages, regardless of what the source of the funds was. There was an "umbrella" contract covering the periods between rotas.

The Court of Appeal found that the EAT had not been entitled to hold that the Tribunal's decision was perverse or an error of law (which are the only grounds upon which the EAT can allow an appeal from the Employment Tribunal), and reinstated the original decision dismissing the Claim.  In essence rather than the club paying the dancer she paid them for the opportunity to earn money by dancing. The fact that she "took the economic risk" was "a very powerful pointer" against this being a contract of employment. Further strong pointers were the absence of any entitlement to sick pay or holiday pay and that the Claimant was responsible for paying her own tax.

Employment status is frequently a difficult issue to determine in unfair dismissal cases and the label which the parties attach to the relationship is not conclusive - the Tribunal has to look at the reality of the situation. If in doubt it is best to seek specialist advice, whether you are employee (or not as the case may be) or employer.