Employment Law Case Update - June 2016
Employment law solicitor Natalie Ruane explains the impact of recent employment law cases.
For the time being, the UK is still subject to the decisions of the European Court of Human Rights and other European Court judgments. If you are unsure about the impact of Brexit on any aspect of your employment law or HR practice and policy, please call Natalie Ruane on 01228 552222.
The risks of disciplining a disabled employee for misconduct
In the case of Risby v London Borough of Waltham Forest, Mr Risby worked for the Borough as a Deputy Risk and Insurance Manager. He was wheelchair bound. He also had a short temper unrelated to his disability and claimed he suffered from depression.
Mr Risby and other managers were invited to attend a workshop, which was to be held at a venue with no wheelchair access. This angered Mr Risby. It was suggested that Mr Risby attend a later workshop at a wheelchair accessible venue. However, Mr Risby was still angry which led to a series of events in which he used offensive and racist language. As a result his employer suspended him. Following a disciplinary investigation he was summarily dismissed. He unsuccessfully appealed the decision and subsequently brought claims for unfair dismissal and unlawful discrimination on account of his disability.
The Employment Tribunal dismissed Mr Risby's claims and held that his disability and his behaviour leading to his dismissal were not linked. He appealed to the Employment Appeal Tribunal, which allowed the appeal, holding that a direct link between Mr Risby's disability and behaviour was not required. All that had to be established was that his behaviour arose in consequence of his disability, i.e. his disability was an effective cause of his behaviour. The EAT took the view that had Mr Risby not been disabled he would not have been angered by the decision to hold the workshop in a venue which he could not access: "[h]is misconduct was the product of indignation caused by that decision. His disability was an effective cause of that indignation and so of his conduct".
This decision will lead to difficulties for employers in misconduct cases because it effectively means that as long as there is some connection, even if not a direct connection, to link the disability and the action leading to disciplinary action, then the employer will be at risk of a claim under section 15 of the Equality Act 2010.
It is important to note that the employer has a possible line of defence: if the disciplinary action is ‘a proportionate means of achieving the legitimate aim’. In most cases, this will be addressing misconduct issues in order to protect the employer’s reputation, commercial interests, and in some cases, to protect other staff.
Exit negotiations do not protect employers from potential constructive dismissal claims
In the case of Gibbs v Leeds United, Mr Gibbs was employed as the Assistant Manager of Leeds United FC (the Club) on a fixed term contract from 12 April 2013. The contract was due to expire on 30 June 2016. He had become Assistant Manager when Brian McDermott was appointed Manager of the Club. After a change of chairman, Brian McDermott was dismissed from his post. It was expected that, in line with industry practice, his assistant would leave with him and a new manager would bring his own assistant manager.
However, Mr Gibbs did not co-operate. He was offered the post of Head Coach which he refused. He entered into negotiations with the Club for an early exit. The Club subsequently appointed David Hockaday as the Club's Manager and Mr Gibbs was told he was expected to remain in his post.
The relationship between David Hockaday and Mr Gibbs was not good; Mr Gibbs had not been assigned work of the type which would be expected of an Assistant Manager and was subsequently demoted to the position of assistant to the Head of Young Player Development. He was then told that he would work solely with Under 18 and Under 21 players.
Mr Gibbs resigned with immediate effect on 26 July 2014 asserting that the Club was not prepared to honour his contract. He brought a claim in the High Court (HC) for breach of contract looking for the balance of his fixed term contract to be paid out.
The HC found that the Club had fundamentally breached the terms and conditions of Mr Gibbs employment. When the Club demoted him down to the youth academy position, it demonstrated that it had no intention of following through with his contract of employment in the way it was originally drafted. That fundamental breach of contract allowed Mr Gibbs to respond by resigning and therefore it was a dismissal. The Club argued that as Mr Gibbs had been looking to leave it could not have breached his contact. The HC held that the two things were completely separate. Mr Gibbs looking to leave did not give the Club free reign to fundamentally breach his terms and conditions of employment which is effectively what it did when it demoted him.
Negotiating an early exit for an employee who is continuing in their role while that is happening is a common situation. It is important to note that, until a settlement agreement is signed by the employee, the employer must uphold their contractual duties to the employee to avoid any claim for breach of contract or constructive dismissal. The process of negotiations and managing the exit should be kept entirely separate from the ongoing employment relationship.
A dress code which bans all visible religious, political or philosophical symbols in the workplace may not be discriminatory
In the Belgian case of Achbita and another v G4S Secure Solutions NV the ECJ’s Advocate General considered whether a Belgian company's dress code banning the wearing of a Muslim headscarf while on duty amounted to direct or indirect discrimination under the Equal Treatment Framework Directive.
As the ban affected all employees equally (i.e. it did not apply to one or more particular religions or against religious beliefs in general), it was not discriminatory. Even if it did amount to direct discrimination, the Advocate General found that the headscarf ban could be regarded as a genuine, determining occupational requirement under Article 4(1) of the Equal Treatment Framework Directive (2000/78/EC), bearing in mind the employer's desired objective of religious and ideological neutrality. Such a policy was a legitimate commercial choice, given the broad range of clients in the public and private sectors to whom the company was providing services. The imposition of the dress code was both appropriate and necessary for achieving this objective, which could not be achieved by more lenient means.
On the question of whether the dress code was more unfavourable for religious employees compared to non-religious employees, the Advocate General noted that unlike other protected characteristics, such as sex, skin colour or ethnic origin, the practice of religion is an area over which an individual can choose to exert an influence. An employee may therefore be expected to moderate the exercise of their religion in the workplace, although the degree of moderation will depend on the circumstances of each case, and the issue of proportionality is for the national court to decide. However, the Advocate General noted that there was much to support a conclusion that a ban of this type was proportionate.
Since the dress code was capable of putting individuals of certain religions or beliefs (in this case, female employees of the Muslim faith) at a particular disadvantage by comparison with other employees, it may constitute indirect discrimination. However, the defence that this is a proportionate means of achieving a legitimate aim (religious and ideological neutrality) would apply equally to justify the policy when faced with a claim of indirect discrimination.
The opinion of the Advocate General is surprising and problematic because it portrays the wearing of a headscarf as an option, whereas for many Muslims the decision to cover their hair will be based on a religious order or obligation which has to be observed in order for them to comply with the requirements of that religion. This is acknowledged by British Airways which had an exception in its uniform policy for items that were a "'mandatory' scriptural requirement" – as cited in the case of Eweida v British Airways Plc.
The Advocate General’s opinion is a recommendation to the ECJ and is not binding. The ECJ’s final decision is pending. If it decides that a complete ban on religious items can be justified as an occupational requirement (on the basis that neutrality is an integral part of the employer’s image and values), then this may be an approach adopted by other employers who want to avoid any uncertainty over what can and can’t be worn while maintaining a level of control over how employees present themselves as representatives of their organisation.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.