News & Updates

Employment Law July Briefing

In this edition of our monthly employment law e-briefing we cover

 

  • Disability Discrimination
  • Compensation
  • Victimisation
  • Grievance Procedure
  • Unfair Dismissal
  • Religion v Sexual Orientation

  

New Approach to Disability Discrimination

  

In a recent judgement the House of Lords considered the meaning of the phrase "a person discriminates against a disabled person if...for a reason which related to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply...".  Although a housing case, this decision also has implications for employers.  The tenant of a local authority sub-let a flat in breach of the terms of his tenancy.  The landlord sought to recover possession.  The tenant argued that in bringing proceedings for recovery of possession the Council was unlawfully discriminating against him on the grounds of his disability, namely schizophrenia.  It was his case that any breach of the terms of the tenancy had been caused by his schizophrenic condition and that the reason for the Council seeking possession was therefore a reason related to his disability.  Accordingly the court was precluded by the Disability Discrimination Act from making any order for possession against him. It was the Council's position that they had raised re-possession proceedings because the tenant had sub-let his flat (in breach of his lease) and moved out i.e. a reason not related to his disability.

 

The House of Lords determined that:

 

  • The real reason that the landlord acted as it did was that it was not prepared to allow tenancies to continue where the tenant was not living in the premises.
  • This was not a reason which related to the tenant's disability as it was purely a housing management decision.
  • The appropriate comparator was a person without a mental disability who had sub-let and gone to live elsewhere (that is, a tenant to whom the underlying reason still applies; not merely a tenant who is not disabled as had previously been thought)
  • Knowledge of the disability, or at least imputed knowledge, is necessary to found a disability discrimination claim (previously it had been held that the alleged discriminator's knowledge of claimant's disability was irrelevant).

  

‘Killer' is awarded £5,000 in Damages  

  

A police firearms officer nicknamed "Killer" due to his habit of fatally shooting suspects during armed sieges took offence when a female police chief jokingly referred to him as a "serial killer" at a social function.  The employer paid £5,000 to "settle the case" although it is difficult to see what case the firearms officer might have had.  Compensation for injury to feelings is only awarded in cases where unlawful discrimination is alleged to have taken place.  Critics have pointed to this case as an example of "compensation culture". 

 

Meanwhile a tribunal continues in which a senior police officer alleges race discrimination against the force for failure to promote him and other black and asian officers.  The claimant has made accusations against Commissioner Ian Blair stating that he favours a "golden circle" of white officers.  The case is currently being considered by an employment tribunal in East London.

 

Victimisation

  

Victimisation has a specific meaning in employment law.  It occurs where a worker is subjected to less favourable treatment because he has brought proceedings, given evidence in connection with proceedings brought by another person, or it is suspected that he is about to do any of these things in relation to alleged unlawful discrimination or certain other protected activities such as union membership or whistleblowing. 

 

In a recent case an employee (a police officer again) claimed that he had been victimised as he had made a race discrimination complaint against a colleague which he later withdrew.  The alleged detriment was that his colleagues had recorded and reported a number of matters about him.  The appeal tribunal, recognising that a detriment had to be judged from the standpoint of the alleged victim, held that as the employee did not know of the entries until after proceedings had been started, he could not have any justified sense of grievance from the accurate recording of matters by colleagues. 

 

What is a Grievance?    

  

The Employment Act 2002 requires an employer to comply with the statutory grievance procedure upon receipt of a grievance from an employee.  A lot of the case law arises because employers cannot always identify a grievance when it comes in.  A grievance does not require to be called a grievance and it could be any document from or on behalf of an employee (for example a letter from his solicitor) setting out the employee's concerns, problems or complaints in relation to a particular issue. 

 

In a recent case a written complaint was received which itself stated that it was not intended to be a statutory grievance.  The tribunal required to determine whether nevertheless the mandatory statutory grievance procedure had been triggered by receipt of that document.  The tribunal decided that it had been.  What the grievance called itself was irrelevant, the only question was whether it satisfied the requirements laid down for a step one grievance letter.  This merely requires that the grievance is set out in writing and sent to the employer.  If that has been done, that is a grievance and the employer is required to invite the employee to a grievance hearing. 

 

The dangers of unreasonable delay

 

A recent case serves up a harsh reminder to employers: the importance of dealing with each stage of the disciplinary process promptly.  The mandatory statutory dismissal procedure (the three step process) is overlaid by general requirements which apply to that process.  One of these general requirements is: "Each step and action under the procedure must be taken without unreasonable delay."  In a recent case in which the employer took 5 months to issue the outcome of a disciplinary hearing, the employment appeal tribunal considered whether those general provisions were mandatory i.e. even if the employer had followed the three step statutory procedure, would a breach of the general provisions lead to a finding of automatic unfair dismissal?  The tribunal decided that the general requirements are mandatory and on the facts if this case the 5 month delay was unreasonable and therefore the dismissal was automatically unfair. 

 

Religion v Sexual Orientation

  

Following our last monthly e-briefing we can report the outcome of the tribunal claim involving the civil registrar who refused to perform Civil Partnerships "as a matter of religious conscience".  The tribunal has held that she was discriminated against on the grounds of her religion by her employers who asked her to perform such ceremonies.  The claimant has heralded the decision as a victory for religious liberty stating that "gay rights should not be used as an excuse to bully or harass people over their religious beliefs".  The respondents in this claim believe the ruling will have wider implications and are currently considering the merits of lodging an appeal against the tribunal's decision. 

  

Honesty is the best policy!

  

Despite the success of the Apprentice winner Lee McQueen, employees should be wary of a "white lie" or two on their application form or CV.  An employee who conceals information or lies may be dismissed on the basis of breach of the mutual implied obligation of trust and confidence. 

 

  

For advice or further information please contact our employment team

  

Karen Harvie                      kjh@tcyoung.co.uk 

Alastair McKendrick           awm@tcyoung.co.uk

 

  

  

This e-briefing is intended as a guide and does not provide a comprehensive statement of the law.  Legal advice should be sought on individual circumstances.