Employment E-Bulletin Cases Update 2011
Employment Law Solicitor Hazel Phillips from Burnetts in Carlisle, West Cumbria and Newcastle takes a monthly look at some of the employment law cases hitting the headlines......
Employment Law Cases - December 2011
Costs in the Employment Tribunal
An Employment Tribunal may make a costs order against a party where they have acted vexatiously, abusively, disruptively or otherwise unreasonably, or their conduct of the proceedings has been misconceived. The most common circumstances in which costs arise are:
1. where a party’s claim or defence is so weak as to have no realistic prospect of succeeding;
2. the claim or defence is being pursued for an improper reason (for example in pursuit of a grudge); or
3. the way in which one of the parties has conducted their claim or defence has been unreasonable.
However, in practice, the issuing of costs orders, even in such circumstances, are few and far between. The Employment Tribunal is deliberately “less formal” than a traditional court and it follows that a Tribunal finding that a complaint or argument is misconceived is less likely than in, for instance, the civil courts. Improper reasons are difficult to prove and for the behaviour to be classed as unreasonable the parties normally have to have gone far beyond just being annoying.
However, in the recent case of Barnsley Metropolitan Borough Council v Yerrakalva  the Court of Appeal supported a costs award against the Claimant in circumstances were the Claimant was found to have lied.
Such cases are rare though and the case of Dean and Dean v Dionissou-Moussaoui  is much more representative of the way in which the Tribunals approach such matters.
In that case the Claimant had brought a number of claims against her former employer, including a claim of sexual harassment against a partner in the firm. The firm resisted the claims, and the claims were struck out for jurisdictional reasons before any hearings took place. The firm and the partner in question applied to the Employment Tribunal for costs, yet their applications were rejected by the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal.
The Court of Appeal stated that, because the matter had not gone to a full hearing, the Tribunal had been unable to consider whether the allegations were true or untrue. As such, the Court felt that it would be unreasonable to award costs on the basis of the Respondent’s assertion that the case had no prospect of success and/or was being pursued unreasonably – that could not be established, in their view, from the manner in which the proceedings had come to an end.
It will be interesting to see if the Government’s proposal for fees in Employment Tribunal changes this approach. The number of vexatious or misconceived claims will surely be reduced, however, genuine claimants who are paying up to £1,000 in total to bring a claim are likely to pursue costs more readily in the event a respondent runs a spurious argument or unreasonably conducts their defence. In such circumstances, respondents would be advised to ensure they are thoroughly prepared and take detailed legal advice at the earliest stage.
Anti-fox hunting – a protected belief
Following on from last month’s cases on religion and belief, the recent decision by an Employment Tribunal in Southampton in the case of Joe Hashman v Milton Park (Dorset) Limited t/a Orchard Park has suggested that anti-fox hunting views may constitute a philosophical belief which is protected under the Equality Act 2010.
Mr Hashman was sacked from his job as a gardener at Orchard Park Garden Centre after his employers discovered that he was a leading hunt saboteur and animal welfare activist, whose covert filming had been instrumental in the conviction of celebrity chef Clarissa Dickson Wright for illegal hare coursing.
Although Orchard Park argued that the decision to dismiss Mr Hashman was taken on the basis that his vegetable patch at the garden centre was not making enough money, Mr Hashman had received no indication that there were any concerns with his performance, or that his employment might come to an end.
The Employment Tribunal was satisfied that Mr Hashman’s personally held beliefs amounted to a philosophical belief and that he was discriminated against on the grounds of those beliefs, in breach of the regulations. The Employment Tribunal did, however, state that it reached its decision based on the facts of the case and therefore not all those with a belief in anti-fox hunting will hold a philosophical belief for the purpose of the regulations. It will be necessary in each case to consider the belief concerned and ascertain that it:
1. is genuinely held;
2. is more than an opinion or viewpoint;
3. concerns a substantial aspect of human life and behaviour;
4. has a certain level of cogency, seriousness, cohesion and importance; and
5. is worthy of respect in a democratic society, not incompatible with human dignity and does not conflict with the fundamental rights of others.
Whilst the decision does appear to broaden the concept of philosophical belief, the onus is still on the employee to convince an Employment Tribunal that their belief passes the test and constitutes a philosophical belief. The recent case of Lisk v Shield Guardian Co Ltd shows that this will not always be possible.
Mr Lisk was an ex-serviceman who alleged that his employer’s refusal to allow him to wear a poppy at work was discrimination on the grounds of religion or belief. However the Tribunal decided that the belief that one should wear a poppy to show respect lacked the cogency, cohesion and importance required by the Nicholson case and said that the belief that we should express support for the sacrifice of others was too narrow to be characterised as a philosophical belief.
Nevertheless, the advice to employers must be to be mindful of the views held by employees and to avoid letting those views or the alternative views of a majority of employees, dictate how company decisions are made.
In the case of Garside & Laycock v Booth, the employer needed to cut costs and increase profit and felt that imposing a pay cut was the only viable way to save the business. The company asked all of its employees to accept a pay reduction of 5%. Mr Booth refused and was subsequently dismissed from his job which he had held for 7 years. Out of 77 employees Mr Booth was the only one at the time of the dismissal who opposed the change.
When the case was heard by the Employment Tribunal it was decided that the dismissal was unfair but the Employment Appeals Tribunal (EAT) has now decided that the original Tribunal approached the issue in the wrong way. The right test in the mind of the EAT was whether it was reasonable for the employer to dismiss, rather than whether it was reasonable for the employee to accept lesser terms offered to him.
The EAT held that, whilst the survival of the business was a relevant factor in the employers decision making process, termination and re-engagement might still be fair even if the business was not in “dire straights”. The EAT felt that it was not unreasonable to seek to ensure that all employees were on the same pay scale and that ensuring that exceptions weren’t being made was fair.
The case is a good example that termination and re-engagement can be fair but, although the EAT has suggested that complete business failure is not required, employers should not be under the misapprehension that any old reason will do. An employer without a sound business reason and who fails to follow a fair procedure before starting the termination and re-engagement process is likely to find him or herself on the wrong side of an unfair dismissal claim.
Mitigation of Loss
In another positive case for employers, in the case of Debique v Ministry of Defence the EAT also upheld a Tribunal’s decision not to award compensation to an employee who unreasonably refused an offer of alternative work.
Ms Debique was a soldier in the British Army who found it difficult to combine her responsibilities as a mother with her responsibilities as a serving soldier. Her difficulties were not treated very sympathetically when she initially raised them and, after being subjected to disciplinary procedures, Ms Debique resigned claiming unfair dismissal and sex discrimination.
Before the case could get to a full hearing, the Ministry of Defence offered Ms Debique a “unique” role which would not require active service for 5 years and offered to remove 2 of the formal warnings from her personnel record. Ms Debique refused and continued with her claim which was ultimately successful. Ms Debique was awarded compensation for injury to feelings but nothing for loss of earnings because the original Tribunal felt that her refusal of the “unique” role was unreasonable.
The EAT agreed. The offer was in writing, contained “solid assurances”, gave details of the ways in which the child care issues could be addressed in the future and came from someone within the Ministry of Defence who had authority to make that offer. The EAT recognized that there can be cases in which the employer’s behavior has caused such irreparable damage to the relationship of trust and confidence that it would be unfair to insist that an employee accept an offer of re-engagement. However, the case shows that employers who make genuine attempts to address issues can minimize the financial impact of their actions in some cases.
The trend in recent years has been for employers to restrict references to purely factual matters. Since at least 1995 it has been clear that employers have owed a duty of care to ex-employees when providing a reference and since then employers have increasingly shied away from giving opinions on performance or capability for fear of being sued by the disgruntled ex employee who feels prevented from securing new employment or by the employer who feels that they appointed someone on the basis of inaccurate information.
However the case of Jackson v. Liverpool City Council, shows that, even when a reference may seem unfair to the subject, the circumstances in which it is provided may justify a bad reference being given.
Mr Jackson worked as a social worker on the youth offending team with Liverpool City Council (“Liverpool”) for 12 years. He left his employment with them to take up a position with Sefton Borough Council (“Sefton”) in the Adult Services Department on 25 September 2007. After approximately one year in Adult Services, Mr Jackson left this role for a position in Sefton’s Youth Offending Service. The offer of this second position was conditional upon receipt of satisfactory references. Liverpool provided a reference which was not satisfactory to Sefton and, as a result, Mr Jackson was not offered the position and was unemployed for a year before he was able to obtain comparable employment.
The reference which had been provided by Liverpool was not complete. It rated his time keeping and relationship with colleagues as very good; his honesty and integrity as good and his work performance as average. The reference did not provide answers to the questions “would you re-employ [the applicant]?” “Do you know of any reasons why we should not employ the applicant?” Furthermore, in answer to a query in respect of the Claimant’s weaknesses, the reference read:
“There were some issues identified by his team manager in respect of recording and recordkeeping. This was addressed by a supervision and would have led on to a formal improvement plan to assist Mark to make improvements in this area. Mark left the service before this process was instigated.”
The High Court decided that although the author of the reference had made it clear that the “issues” had not been properly investigated, the reference was unfair albeit that it was “true and accurate.” On that basis Mr Jackson was awarded damages. However, Liverpool appealed and the Court of Appeal agreed that it would have been difficult for Liverpool to have answered the queries in the reference in any other way. The Court of Appeal was prepared to give much more weight to the fact that Liverpool had made it clear verbally that there had been no formal investigation into the matters raised in the reference and concluded that this passed the issue on to Sefton who could have easily carried out their own investigation by asking Mr Jackson about the problems which had been identified. In such circumstances, the Court of Appeal decided that Liverpool could not be criticised for the reference that had been given.
Although the outcome of the case was favourable to the employer, it is another reminder of the need to exercise caution when providing references for ex-employees. It also highlights the need for potential employers receiving unsatisfactory references to query the facts raised with the potential employee rather than moving straight to dismissal based on the words of the ex employer without any investigation. Above all the case serves to promote the concept of agreeing a reference with an employee before that employee leaves. However, it is also a strong endorsement that employers can be honest provided they are also factually accurate with the information provided.
Reasonable Adjustments: how much is too much?
In the case of Cordell v. The Foreign and Commonwealth Office (“FCO”) the Employment Appeal Tribunal has ruled that the FCO did not commit an act of direct discrimination against an employee who was deaf when it refused her a placement in Kazakhstan on the basis that the provision of an English-speaking lip speaker would cost too much.
Ms Cordell entered the FCO in 2001 and worked successfully in London for several years despite the fact she was profoundly deaf. In January 2006, she was posted to Warsaw as a First Secretary to lead the political/military press and communications team. Ms Cordell required the assistance of professional lipspeakers who were provided for her by the FCO but, with these aids in place Mrs Cordell was able to operate to a very high standard.
As a result of her continued success, on 9 October 2009, Ms Cordell was invited by the ambassador-designate to Kazakhstan to be deputy head of Mission in Astana. Ms Cordell accepted the offer. However, the offer was made to her on the condition that it would be subject to formal procedures which included consideration of the cost arrangements in respect of providing lipspeakers to assist her.
Following the conclusion that an English-speaking lipspeaker would cost £230,000 per annum, it was decided that the appointment could not go ahead. In response, Ms Cordell brought an application under the Disability Discrimination Act 1995 for direct discrimination and for failure to make reasonable adjustments.
Ms Cordell argued that she was being treated less favourably because the FCO paid up to £25,000 per year for an employee’s child to be educated and yet were not prepared to make the payment in respect of lipspeakers to assist her. The Employment Tribunal however disagreed and dismissed Ms Cordell’s claims. Ms Cordell appealed to the Employment Appeal Tribunal (the EAT).
In dismissing Ms Cordell’s appeal, the EAT held that the reason for Ms Cordell’s non-appointment was not her disability as such, but the costs of the adjustments which it necessitated. The fact that staff were able to benefit from the education allowance was not relevant.
It is interesting that in coming to its decision the EAT remarked that they were very sympathetic to Ms Cordell’s position and concluded that it was a great misfortune for her that her disability may limit her opportunities to use her evident abilities in full. Nevertheless, the EAT upheld the employers right to decide that the adjustment was not reasonable because of the cost involved.
This case is another good one for employers in that it supports the employer’s right to decide that something is too expensive. However, the costs involved here were fairly extreme and so before rejecting a requested adjustment employers would be wise to explore alternative options and to take independent advice so as to mitigate against assumptions and irrelevant factors being taken into account when the decision is made.
Religion and Belief in the Workplace
There have been a number of recent Employment Tribunal decisions where claimants have successfully argued that they have been discriminated against on the basis of their religion or belief. As a result of these cases, what constitutes a religion or a belief has been expanded such that a belief in anti-fox hunting and anti-hare coursing, and a belief in the higher purpose of public sector broadcasting have given protection. The decision in the case of Ms Hannah Adewole v Barking, Havering and Redbridge University Hospitals NHS Trust, however, appears to signal if not a change of approach by the Employment Tribunal, then a high-watermark in the broadening of the concept. The decision is also an example of the Tribunal applying common sense principles to reach a desirable outcome in what is a complex and often emotionally-charged area.
Mrs Adewole claimed that the Trust’s insistence that she wore scrub trousers rather than scrub dresses whilst she was worked in the operating theatre was discriminatory on the grounds that the Book of Deuteronomy in the Bible forbids women from wearing men’s clothing.
The first question for the Employment Tribunal to consider was whether the Trust followed a provision, criterion or practice, which put Mrs Adewole, or persons of her religion or belief, at a particular disadvantage, when compared to other employees who did not hold her religion or belief. The Employment Tribunal decided that Mrs Adewole was put at a disadvantage in comparison to other midwives, such as Muslim midwives, for whom wearing scrub trousers did not impinge on their religion or belief.
However, the Employment Tribunal went on to decide that the Trust was able to justify its practice of requiring employees to wear scrub trousers in the operating theatre by establishing that the practice was a proportionate means of achieving a legitimate aim. The legitimate aim in this case was the prevention of infection in the operating theatre, and the practice of requiring employees to wear scrub trousers was found to be a proportionate way of achieving that aim. As a result, Mrs Adewole’s claim failed.
However employers always need to take care when enforcing dress codes at work. Many employees want or feel obliged to wear certain items, such as turbans, hijabs, bangles or crucifixes. To avoid claims of indirect discrimination, employers should consider allowing exceptions to their dress codes to accommodate such practices. For example, a blanket ban on jewellery on the grounds that it does not fit with the company image would probably not be considered a proportionate means of achieving a legitimate aim but when health and safety or other matters need to be taken into account such policies can be more reasonable.
Contracts of employment contain express terms, which have been agreed by the parties and are stated in the contract, and implied terms, which are not stated in the contract but apply nevertheless. In order for an Employment Tribunal to imply a term into a contract, in the Tribunal’s opinion, the parties must have intended it to form part of the contract. This principle appears to have been circumvented in the case of Reilly v National Car Parks Ltd (“NCP”), where Mr Reilly was found to have been fairly dismissed for losing his driving licence, despite the requirement to hold a licence not being an express term in his contract of employment.
Mr Reilly was dismissed by NCP after being banned from driving following a drink driving conviction. Although new recruits to the company had an express term in their contracts that holding a valid driving licence was a requirement of the job, this was not the case when Mr Reilly joined the company, nor was his contract updated at any point to include such a term. Further, the job advert did not specify driving would be one of his duties, nor did he receive a job description confirming that driving was one of his duties when he started employment. Mr Reilly could therefore be forgiven for thinking that driving was not one of his essential duties and that by being able to drive he was providing an extra service to his employer.
Unfortunately for Mr Reilly, the Employment Tribunal disagreed, instead being satisfied that driving was an essential part of his job. One factor which appears to have been persuasive was that there were few non-driving employees in Mr Reilly’s post at the time of his dismissal. Having reached this decision, the Tribunal went on to find that it was fair for the company to treat Mr Reilly’s loss of his licence as sufficient reason to dismiss him.
To compound Mr Reilly’s misfortune, the Employment Tribunal also decided that there had been no specific requirement on the company to consider alternative employment for him in the circumstances, as there would otherwise have been had Mr Reilly been dismissed on the grounds of redundancy. The Tribunal’s reasoning for this was that the dismissal was no one’s fault but Mr Reilly’s. If the dismissal had flowed from a genuine redundancy situation the requirement to consider suitable alternative employment would have existed, however in Mr Reilly’s case, it did not, and therefore the dismissal was also procedurally fair.
Despite the judgment, where an employer considers driving to be an essential part of a job, it will always be safest to make holding a licence a contractual term. However, there are important issues to consider when deciding whether to amend employees’ contracts of employment and potential dangers if employees are forced to accept changes to a contractual term against their wishes. This is another area where employers need to be cautious.
Alcohol at Work
The Employment Appeal Tribunal (EAT) decided in Liberty Living Plc v Alan Reid that an employee who drank an alcoholic drink during the working day had been unfairly dismissed.
Mr Reid had worked as a Caretaker at a site in Aberdeen since January 2006 but on 4 December 2008 he was seen drinking in a pub during his lunch break. The company’s policies included statements that being under the influence of alcohol during working hours was a gross misconduct offence and that consumption of alcohol while performing company business or in the workplace was prohibited. So, when Mr Reid wasn’t able to give a satisfactory explanation he was invited to a disciplinary hearing and, ultimately. dismissed.
The Tribunal found that Mr Reid was not aware of the alcohol policy and decided that dismissal was not within the range of reasonable responses. The Tribunal also noted that the policy seemed to confuse “consumption of alcohol” and “being under the influence of alcohol”. Although the company appealed, the EAT agreed that the wording of the policy was not tight enough to permit dismissal for drinking a single alcoholic beverage outside the workplace even if it was during working time.
The case highlights the importance of ensuring that policies are clear and precise and that they are communicated to each employee effectively. It also highlights why employers need to be wary of rejecting claims by an employee that he or she is unaware of an obligation or restriction in misconduct cases. If you can’t prove otherwise then you may need to impose a lesser sanction.
Spying on employees
In Casey v Caterpillar Logistic Services (UK) Ltd the Tribunal decided that the dismissal of an employee in reliance upon information from a private investigator, indicating that he was the dishonestly claiming SSP, was unfair.
Mr Casey had worked as a Warehouse Operative for Caterpillar from January 2009. On 30 November 2009, while lifting heavy items at work, Mr Casey suffered a back injury. He was sent to an Occupational Health Therapist who agreed that he was unfit for work but Caterpillar was suspicious about the seriousness of Mr Casey’s injuries and arranged for a private investigator to monitor what Mr Casey was doing. The investigator’s footage showed the Claimant driving and cleaning ice from his car; carrying a small shopping bag; taking his dog for a walk, throwing sticks and chasing another dog away.
In light of the evidence Caterpillar decided that their suspicions had been justified and Mr Casey was invited to attend a disciplinary hearing. At the hearing, Mr Casey indicated that his doctor had advised him to take part in light exercise as much as possible. Mr Casey’s GP confirmed this but Caterpillar dismissed him anyway.
The Employment Tribunal upheld the claim of unfair dismissal and were particularly damning about Caterpillar’s failure to show the investigator’s video to a medical expert for an opinion before making the decision to dismiss.
Again, although not a ground breaking area of law, the case highlights the dangers of relying upon evidence which suggests dishonesty in relation to ill health. Only a very thorough investigation will satisfy a Tribunal in these circumstances. Obtaining medical evidence is only the first step – any suggestion that the actions are within the employees capabilities albeit that the employee remains unfit for work will fundamentally undermine the employer’s position so each and every mitigating factor or explanation advanced by the employee will need to be considered and fully tested before the decision is taken to dismiss.
About the author
Published: Monday 15th August 2011