Employment Update March 2009: Discrimination

23 March 2009

Employment Group

No need for comparator – ‘why was claimant treated less favourably?’

Chondol v Liverpool City Council was a religious discrimination case - the claimant was a social worker whose employment contract was terminated after it was found that he had visited 'service users' (i.e. clients) on his own and outside working hours, had given one of them a bible and had encouraged him to go to church.

This was found to be misconduct justifying dismissal by his employer and by the employment tribunal. The EAT agreed.

The claimant had failed to follow working procedures set out by his employer. This was not the first time that he had done so, and, as a social worker, his conduct was unprofessional.

The EAT referred to the recent case of Ladele v London Borough of Islington and said that, if it was necessary to find a comparator, the comparator would be another employee who had behaved in a similar way, i.e. tried to interest clients in his/her religious views. So the employee was not being treated differently on account of his particular religion. However, the EAT goes on to say that it is probably more useful in such a case to ask 'why was the employee treated less favourably?' rather than to dwell too much on a comparator. His claim of religious discrimination failed.

Points to note –

  • This is the first published judgment from Mr Justice Underhill as the new President of the EAT and suggests that he will (unsurprisingly) be treating discrimination cases along the lines set out by House of Lords in Malcolm v London Borough of Lewisham and also be more pragmatic in considering the reasons behind any alleged act of discrimination.

  • The decision is helpful to employers. A distinction can be made between an employee’s religious belief as such and the inappropriate promotion of that belief, which (in the workplace) may be misconduct. As the employment tribunal said in this case: “It was not on the ground of his religion that he received this treatment, rather on the ground that he was improperly foisting it on service users.”