Employment Law E-Bulletin

Cases: Jan 08

In this case the employee was a practising Muslim of Asian origin who claimed that he was the subject of bullying and harassment at work.

The employee sent a detailed factual account of the events that he felt constituted bullying to his employers. He felt that he was given more work to do than anyone else and that he was subjected to taunts and ridicule, but at no point in his letter of complaint did the employee indicate that he believed that the bullying and harassment was based on religious and/or racial issues. Nevertheless the Employment Tribunal held that his complaint was a valid grievance for the purpose of section 32 of the Employment Act 2002.

The EAT has now overturned this decision and held that the current law regarding grievances is such that an employee has to indicate the nature of their claim for the grievance to meet the requirements of section 32 of the Employment Act 2002. This requires the employee to spell out (although not necessarily in legal terms) whether they think they have been discriminated against; it is not enough to merely set out the factual complaints.

This case is another example of the complexities caused when parties are required to follow the statutory grievance procedure. It is a case that may have been decided differently if the new Employment Bill had entered into law but, for the moment, employers must still treat all complaints made in writing as grievances so as to avoid having to rely upon arguments such as this.

Read the full EAT judgment

Padgett v (1) Serota and (2) Trustees of the Tate Gallery
 
This rather eccentric case shows that there is a limit to what can count as ‘employment’ and therefore to what can be protected under discrimination law.

Mr Padgett is a Unitarian performance artist who made a proposal to the Tate Modern for a piece of performance art that he wanted them to commission.

Mr Padgett wanted to create a half sized scale reconstruction of the Sir Henry Tate Memorial (Sir Henry Tate patented the sugar cube, founded the Tate and was also a prominent Unitarian) out of sugar cubes and then to create a performance around it.

The Tate Modern turned down the proposal and Mr Padgett claimed that the decision was tainted by discrimination on the grounds of religion and asked, by way of compensation for this discrimination, to be short-listed for the Turner prize.

The Employment Tribunal held that Mr Padgett was not in ‘employment’ and nor was he an ‘applicant for employment’ and therefore his claim had to fail because the discrimination laws as they apply in the Employment Tribunal only cover employees, applicants and ex-employees.

Mr Padgett appealed but the EAT concurred with the Employment Tribunal holding that receiving proposals for exhibitions was held not analogous to recruiting and therefore this situation was not caught by the legislation.

This case covers no new ground, but is a quirky illustration of what activity can be classed as ‘employment’ and what cannot. Employers should also be thankful that Tribunals are willing to draw the line as to what situations can be covered by employment legislation.

Read the full EAT judgment

Straight Bouncer wins Discrimination Claim (The Times 04/01/08)

Sharon Legg, a bouncer at ‘Dreams’, a night club in Bournemouth, has won a claim of unfair dismissal and discrimination on the grounds of sexual orientation.

This case is interesting in that it is the first reported situation in which sexual orientation legislation has been used to protect the rights of a heterosexual worker.

The ‘Dreams’ club is a gay club and Sharon Legg, a married mother, was the only heterosexual member of staff. Ms Legg suffered verbal taunts and was called a ‘breeder’ by her gay colleagues.

Ms Legg won £3,222 for unfair dismissal (although the reason for the dismissal was held not to be related to her sexual orientation) and an additional £3,000 for injury to feelings.

The owners of ‘Dreams’ have said that they are considering appealing, but this case is a good example of the wide scope of the sexual orientation regulations.

This case illustrates how sexual orientation protection applies equally to heterosexual staff. Employers should not assume that just because a member of staff is heterosexual they cannot be discriminated against on the grounds of sexual orientation.

For further information on how these cases might affect you, contact the employment law team of Burnetts Solicitors on 01228 552222.

Back to Employment Law E-Bulletin Jan 08

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Jan 08