Employment Law Cases

Feb 2010

The first case this month is about sex discrimination and dress codes. In Dansie v Metropolitan Police the question was whether asking a male employee to cut his shoulder length hair (when a woman with similar length hair would not have been asked to do so) amounted to sex discrimination.

In a vote for common sense, the Employment Appeal Tribunal (“the EAT”) has ruled that a direct comparison such as this was not appropriate. Provided that the policy as a whole treated staff equally, a seemingly gender specific criteria such as this was not discriminatory. 

During his police force training, Mr Dansie was told to cut his hair or face disciplinary action.  He complied with the requirement but then started a case for sex discrimination claiming that a female employee would not have been challenged in such a way.  However, the Employment Tribunal refused to look at this aspect of the dress code policy in isolation.  Instead the Tribunal looked to see whether the policy had overriding themes.  The Tribunal’s approach has been supported by the EAT who said that, provided the policy was fair overall and met the needs of the profession in question, treatment did not need to be exactly identical in order to avoid sex discrimination. 

Of more importance was the fact that a female member of staff felt to be in breach of the code would have been disciplined in the same way albeit that disciplinary action would have been based on a different aspect of the code.  In effect, the EAT supported an employer’s need to enforce traditional conventions with regard to smartness provided that the decision to do so was proportionate to business need.  The specific rule allowed in this case could be discriminatory in a business with less direct contact with members of the public but employers can, on the basis of this decision, approach dress codes with a commonsense approach.

In another victory for commonsense, the EAT in the case of National Society for the Prevention of Cruelty to Children (“the NSPCC”) v Dear have held that there is a distinction between punishing an employee and putting in place legitimate monitoring to ensure compliance with procedures.

Mr Dear worked on the NSPCC’s advice helpline.  In August 2007 Mr Dear received a call which suggested a child could be seriously at risk.  The caller had already notified the Police about the issue and although Mr Dear made a note of his conversation with the caller, he did not date or sign the entry contrary to NSPCC requirements.  In addition to this, Mr Dear’s handwriting was so poor that the note was later described as illegible.  Furthermore, Mr Dear did not record the call on the special “child at risk” form as required.

Mr Dear’s manager concluded that these failures merited disciplinary action and Mr Dear was given an oral warning.  A record of this warning was placed on his personnel file for six months and Mr Dear was told that he would be required to make a note of all future calls on a special form which would be signed off by a Duty Manager who would also be required to confirm each day that Mr Dear’s records were legible and accurately recorded all necessary information.  Mr Dear felt undermined by these suggestions and submitted a formal grievance before resigning. 

By a majority decision, the Employment Tribunal found that the requirements were enough to justify a constructive dismissal claim.  In the EAT’s view, however, where an employee has failed to follow proper procedures it is entirely normal for an employer to wish to monitor the situation in order to ensure that there are no further slips.  The EAT did not consider monitoring to be a punishment in and of itself. On the contrary, the EAT saw monitoring as a legitimate management tool.  Provided the monitoring was a reasonable and proportionate way of remedying the original fault, the EAT did not believe that monitoring fundamentally undermined the relationship of trust and confidence between the employee and the employer such that the employee would be entitled to resign.

What this decision reiterates is that, although employees maybe unhappy with mechanisms which are put in place in order to correct perceived failures, provided those mechanisms are reasonable and prevent further difficulties then an employees unhappiness at their implementation is not sufficient to give them grounds for a claim.

Feb 2010

Back to Employment Law E-Bulletin Feb 2010

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