Veteran Prison Officer in Disability Discrimination Victory

A veteran prison officer who was sacked after the autoimmune disorder from which she suffered prevented her from working full time was discriminated against due to her disability and dismissed unfairly, the Employment Appeal Tribunal (EAT) has ruled.

The woman had been employed by the Ministry of Justice (MoJ) for 14 years and, despite her health problems, had managed to work 35 hours a week. However, her condition had deteriorated following a bout of shingles and she had not fully recovered before she was dismissed.

She had not yet been able to return to her normal hours and the prison governor decided that she was unlikely to be medically capable of again taking up her full duties. He was also not prepared to make adjustments by reducing her working hours and workload.

An Employment Tribunal (ET) found that she had been unfairly dismissed, that she had suffered direct and indirect discrimination on grounds of her disability and that reasonable adjustments could and should have been made to enable her to carry on working.

In dismissing the MoJ’s challenge to those findings, the EAT rejected arguments that the real reason for her dismissal was her inability to do her job. The ET’s reasoning could not be faulted and the MoJ had failed to establish that there was a potentially fair reason for her dismissal.

The woman had been awarded £67,120 in compensation by the ET. However, the EAT ruled that the ET’s findings in respect of past and future losses and pension losses were unsustainable. Those aspects of the case were sent back to the ET for reconsideration.

Rude Salesman’s Contract Justifiably Terminated

Good customer services are essential for any business dealing with the public and lapses can be stamped on by regulators who have power to impose heavy fines on defaulters. The point was well made by a High Court ruling that a foul-mouthed mobile phone salesman was justifiably given his marching orders.

The salesman was under contract to a telecommunications distribution company which worked for mobile network providers. He was engaged in cold calling potential business customers. His contract was terminated after a provider received complaints and issued a ‘do not deal’ notice.

The salesman admitted two isolated breaches of contract but denied that they were so serious as to justify termination. However, the Court found that the do not deal notice was based on good and solid evidence of his very poor customer relations performance over an extended period. His appalling rudeness to one customer in particular amounted to a repudiatory breach of contract.

Care Homes Provider Triumphs in Migrant Workers Dispute

Businesses which rely on migrant workers from outside the European Economic Area (EEA) are increasingly feeling the heavy hand of regulators. However, in one case, a care homes provider won a High Court ruling that it was treated unlawfully by the Home Office.

The provider, part of a group which ran 80 care homes and employed about 2,500 staff, argued that there were insufficient numbers of skilled workers, particularly nurses, within the EEA-resident workforce to meet its needs. However, it was stripped of its licence to sponsor entry into Britain of non-European skilled workers following a Home Office inquiry.

In quashing that decision, the Court found that the Home Office had misapplied its own policy in treating the provider as if it were an employment agency. It had also erred in finding that the provider had knowingly made false representations and had failed to make sufficient efforts to recruit the staff it needed from within the EEA. The revocation of the provider’s licence was therefore irrational.

False Police Disclosure Violated Teacher’s Human Rights

A science teacher whose career was blighted by disclosure of false and damaging information to his employers by the police has won an important High Court ruling that what happened amounted to a violation of his human rights.

The teacher had been dismissed from his post at a primary school after governors found, amongst other things, that he had made inappropriate comments to female pupils, which they had taken to be of a sexual nature. He found another job at a girls’ school after both the Independent Safeguarding Authority and the General Teaching Council decided to take no action against him.

However, after the local police force’s child abuse investigation unit found out what had happened, an officer informed a local authority official – wrongly – that he had been sacked for inappropriately touching pupils. When that information found its way to the girls’ school he was suspended and eventually resigned under a cloud whilst disciplinary proceedings against him were pending.

The High Court accepted that the police officer concerned genuinely believed that the information that he passed on was correct. However, necessary inquiries had not been carried out and the information was ‘inaccurate in the sense of being untrue’. The fact that the disclosure was not made directly to the girls’ school did not mean that the force could abdicate all responsibility for the consequences.

The disclosure had breached the teacher’s right to respect for his privacy, enshrined in Article 8 of the European Convention on Human Rights. The Court’s ruling opened the way for the teacher to claim damages from the relevant police force to reflect the impact of the disclosure on his reputation and career.

Nursery School Fends Off Muslim Discrimination Claim

Every careful employer should be aware that the duty not to discriminate arises at the very moment when a prospective employee applies for a job. In one case, a nursery school was accused of prejudice by a Muslim interviewee who claimed that she had been refused permission to wear her flowing jilbab to work.

The woman said that, during her interview, she had been told that her jilbab was too long and that she would need to wear a shorter version. Asserting that she had been less favourably treated due to her faith, she took her case to an Employment Tribunal (ET), claiming indirect religious discrimination.

The ET rejected her account of what was said during the interview and ruled that it would in any event have dismissed her complaint. In rejecting her challenge to that decision, the Employment Appeal Tribunal found that there was nothing wrong or unreasonable about the nursery’s dress policy.

Its manager had explained that there were health and safety reasons why the woman could not wear a full-length jilbab. There were concerns that it would pose a tripping hazard and the same ‘across the board’ policy would have been applied to anyone else wearing very long clothing. The nursery employed four Muslim staff at the time and at no stage during the interview had the woman indicated that she was offended by the suggestion that she wear a shorter jilbab.

The Law Moves Fast to Protect Software Company’s Rights

The wheels of justice have a reputation for moving slowly, but a case in which three directors quit a technology company, taking a cohort of its strategic staff with them before setting up in rivalry, showed just how quickly the courts can move.

The High Court found that it was arguable that the directors had acted in breach of the fiduciary duties that they owed to the software development company. The company’s claim that its intellectual property rights had been infringed by misuse of its software in the directors’ new venture was also arguable.

A number of employees, who left the company and joined the new business, had also arguably breached their obligations of fidelity and restrictive covenants in their employment contracts which prevented them from soliciting the company’s customers or working for competing businesses for specified periods.

The Court issued an emergency injunction to protect the company’s position pending a full trial of the action, in which a permanent injunction and substantial damages would be sought. The interim order placed tight restrictions on the new venture’s activities but was carefully tailored to ensure that it was not forced out of business.

Exclusivity Clauses in Zero Hours Contracts Banned

Clock 1The first commencement order made under the Small Business, Enterprise and Employment Act 2015 has banned exclusivity clauses in zero hours contracts with effect from 26 May 2015.

Specifically, Section 153 of the Act inserts a new section 27A into the Employment Rights Act 1996 that renders unenforceable any provision in a zero hours contract that prohibits a worker from doing work or performing services under another contract or under any other arrangement, or any provision that prohibits the worker from doing so without the employer’s consent,

Further proposed measures (included in The Draft Zero Hours Workers (Exclusivity Terms) Regulations 2015) intended to prevent employers sidestepping the ban are expected to follow.

In addition, from 26 May 2015, the financial penalty payable for failing to pay the National Minimum Wage is set at 100 per cent of the arrears owed to each worker to whom the notice of underpayment relates, subject to a maximum of £20,000 per worker.

Immigration Officer’s Unfair Dismissal Claim Wrongly Struck Out

A former immigration officer, who delayed nearly six years before lodging an unfair dismissal complaint against the Home Office, has had her compensation claim reinstated after the Employment Appeal Tribunal (EAT) accepted that she may have been too mentally unwell to take action any earlier.

The woman resigned in circumstances which she claimed amounted to constructive unfair dismissal. She should have lodged her claim within three months, but did not do so for nearly six years. In those circumstances, her claim was struck out summarily by an Employment Tribunal (ET) as an abuse of process.

In upholding her challenge to that decision, the EAT noted that, shortly before her resignation, the woman had been admitted to a psychiatric unit after suffering an acute psychotic episode. There was evidence from a consultant psychiatrist that, for several years, she had been too unwell to conduct legal proceedings. In those circumstances, the ET had been wrong to take the ‘drastic’ step of dismissing her claim without giving her the opportunity to make representations. The matter was sent back to the ET for reconsideration.

Open Justice Principle Prevails in Employment Case

In a guideline decision, which involved the balancing of freedom of expression rights against an individual’s entitlement to privacy, the Employment Appeal Tribunal (EAT) has ruled that a former BBC producer who faced unsubstantiated claims of sexual misbehaviour was not entitled to the benefit of an anonymity order.

The BBC had declined to renew the man’s contract after he was accused of carrying out a number of sexual assaults. His complaints of unfair dismissal and other wrongs were dismissed by an Employment Tribunal (ET) on the basis that he had made false statements which had misled his superiors about events in his past.

The allegations of sexual misconduct had not been fully investigated or proved and the ET took the view that it would be wrong for him to be identified in reports of the case. It ordered that he should be referred to only by initials on the basis that the public was likely to misunderstand his position and that revealing his name would have a devastating impact on his private life and future career.

In allowing the BBC’s appeal, however, the EAT found that it was inimical to the principle of open justice for the man to be shielded from publication of the ET’s decision in full. The mere publication of embarrassing or damaging material was not a good reason for placing restrictions on the reporting of the case.

The BBC was entitled to tell the world that its position had been vindicated and its right to freedom of expression had not been given sufficient weight. The EAT also noted that the man’s future employers would have an interest in knowing that he had been dishonest and misled the BBC about his past.

Church of England Rector ‘Not An Employee’

A Church of England rector who claimed to have been unfairly dismissed and penalised for whistleblowing was neither an employee nor a worker within the meaning of the Employment Rights Act 1996, the Court of Appeal has ruled.

The rector had lodged his complaints against the Bishop of Worcester; however, an Employment Tribunal (ET) ruled that there was no contractual or employment relationship between them and that it therefore had no jurisdiction to hear his case. The bishop had not nominated him to his parish, was not responsible for paying his stipend and had very limited control over the way he went about his work.

That decision was later overturned by the Employment Appeal Tribunal. However, in allowing the bishop’s appeal, the Court of Appeal found that the ET’s conclusion was correct. Whilst expressing sympathy for the rector’s arguments that ministers of religion ought to be regarded as employees and afforded modern employment rights, the Court found that they could not prevail on the facts of the case.