TC Young Solictors

News & Updates

Employment Law November E-briefing

Inside this issue:

• Stigma damages where an employee can show difficulty in finding alternative employment after bringing a discrimination claim
• Expanding the scope of philosophical beliefs
• Proposed changes to Disclosure
• Dismissal of "eccentric" Police Communities Support Officer was fair
• Reasonable adjustments and disability discrimination
• And finally......boss jailed for lying to Employment Tribunal

Stigma damages available where an employee can show difficulty in finding alternative employment after bringing a discrimination claim

In Chagger v Abbey National, the Claimant was employed by Abbey as a risk analyst.  As part of a business restructure he was identified as at risk of redundancy.  A selection process was undertaken and the Claimant was selected as redundant.  The Claimant (who was Indian) raised employment tribunal proceedings claiming race discrimination, unfair dismissal and breach of contract.

The Claimant was successful and was awarded approximately £2.8 million in compensation.  The level of compensation was, not surprisingly, the subject of appeal.  The Court of Appeal remitted the matter back to the original tribunal to reconsider the award and in doing so gave guidance as to what the tribunal should and should not take into account. 

• It is appropriate to reduce the amount of damages to take account of the chance that the Claimant might have been lawfully dismissed in any event had the discrimination not taken place;

• Future loss is not however restricted to the time that Mr Chagger would have continued in employment with Abbey;

• Account can be taken of the chance (on the facts of a particular case) of other employers being unwilling to employ the Claimant (and thus; he would suffer future loss for longer) because of the stigma that he had pursued claims against his former employer

This decision has been food for debate amongst employment lawyers. Normally if a prospective employer does not consider or offer a candidate a job because they had previously brought discrimination claims, the prospective employer would be guilty of "victimisation". Now the possibility also exists of stigma damages being awarded against the original employer in anticipation of future employers victimising the Claimant.

Is this fair?

It is anticipated that stigma damages will only be payable in a few very high profile cases.

Expanding the scope of philosophical beliefs

Last month the ETA held (in Nicholson v Granger) that an employee who was sacked for his belief in climate change was protected by the Employment Equality (Religion and Belief) Regulations 2003.   In that case the employee argued, successfully, that his belief was capable of constituting a belief protected by the Regulations.

The expanding scope of the regulations and in the beliefs which are protected by them is demonstrated by a second case decided this month. 

In Power v Greater Manchester Police the employee was dismissed allegedly for holding the belief that psychics can assist police in solving criminal investigations. The Employment Tribunal held that a belief in psychical ability was capable of constituting a belief as defined by the 2003 regulations.  The employee's claim failed however because he did not go on to show that he was dismissed because of his belief.

Proposed changes to Disclosure  

The Scottish Government has announced a new scheme which is intended to advance the existing safeguards in place to protect vulnerable groups.

The current system of Disclosure involves employers undertaking a number of "one off" checks on employees.  This system does not allow for updates and requires the employer to continue to seek the employee's consent to undergo a new Disclosure each time one is required.

The new scheme is intended to replace the existing check with a new system that remains live and updates relevant information as and when.  It is intended that the new scheme will allow an employer to identify if an employee becomes unsuitable to work with vulnerable groups during the course of their employment. 

The consultation exercise has started and it is anticipated that the new scheme will be introduced before the end of 2010. The consultation documents can be accessed on the Scottish Government website.  

Reasonable Adjustments and Disability Discrimination  

This month the EAT issued guidance as to when the duty to make reasonable adjustments arises.  Employers are required to make reasonable adjustments for employees if any physical features of the premises occupied by the employer or any "provision, criteria or practice" applied by the employer places a disabled person at a substantial disadvantage in comparison with people who are not disabled.  The test formulated by the EAT is "did the employer know that the employee was disabled and that the disability was liable to have the effect of placing him at a substantial disadvantage" and, if not, "ought the employer to have known both that the employee was disabled and that the disability was liable to effect him to the extent that it placed him at a substantial disadvantage".  If the answer to both these questions is no, the duty to make reasonable adjustments does not arise.

Dismissal of "eccentric" Police Communities Support Officer was fair  

In the case of the Metropolitan Police Commissioner and others v Mr Eioyaccu, Mr E was dismissed from his employment as a police community support officer following complaints about his conduct.  He had introduced himself as a police officer and informed council staff that aliens were communicating with members of the public through satellite dishes.  The Claimant underwent an Occupational Health assessment which revealed that whilst there was no medical condition, he did have a few eccentricities.  Some considerable time later the Claimant was suspended following a complaint that he had entered a shop, acted in a lewd manner towards staff and had attempted to dance with one of them.  His employers initiated their disciplinary procedures which culminated in the Claimant's dismissal for gross misconduct.  The Employment Tribunal found that he had been unfairly dismissed for two reasons:  firstly the letter inviting him to the disciplinary hearing had not expressly stated that dismissal was a possible consequence and secondly they had not explored his mental state and considered suspending him on medical grounds before dismissal.

On appeal the ETA found in favour of the Metropolitan Police.  Whilst the letter did not expressly state that he may be dismissed, attached to the letter was a copy of their gross misconduct procedure which itself gave employees sufficient notice that dismissal was a real possibility.  The EAT also found that the Employment Tribunal had stepped into the shoes of the respondent when it decided that it would have suspended the Claimant on medical grounds rather than dismiss him.  It is settled in law that the Employment Tribunal should not impose action that they would have taken but should instead restrict themselves to determining whether the employee's dismissal was within the "range of reasonable responses" available to an employer in those circumstances.  The ETA emphasised that the employer was not required to explore the employee's mental health condition having done so previously even if the tribunal would have had they been the employer.

And finally...... boss jailed for lying to Employment Tribunal

A Falkirk man has been jailed for forging a contract of employment and a warning letter and presenting them to an Employment Tribunal as evidence in his defence of a claim by a former employee of sexual harassment.  On realising that certain procedures had not been followed (such as the issuing of a contract of employment) the employer simply created them.  His former receptionist denied having seen them and later produced copies of her signature which did not match those on the forged documents.  When contacted by the police, the employer made a full admission.  The criminal judge said that the system of justice relied on honest evidence and to produce forged documents at an Employment Tribunal undermined the whole system.  The employer was jailed for four months.