Please see below for a summary of the key UK case law developments in the field of Employment Law over the last month. If you have any questions or otherwise need assistance, please do not hesitate to contact us.
- Disciplining an employee for imposing religious views on a colleague held not to constitute discrimination
- Master of a cruise ship held subject to UK Employment Law despite global travel
- Assistant manager held constructively dismissed by football club despite his stated willingness to leave
- Internal appeal process held not to extend limitation period for a Fireman's unfair dismissal claim
- Expecting disabled employees to work long hours could be considered discrimination.
1. Disciplining an employee for imposing religious views on a colleague held not to constitute discrimination
Wasteney v East London NHS Foundation Trust
Employment Appeal Tribunal case confirming that a Christian NHS Manager had not been subject to unlawful discrimination and harassment (on the grounds of her religion) by an employer who disciplined her for trying to impose religious views on a junior colleague.
The Claimant, who described herself as a "born again Christian", was employed as a senior manager by the Trust. A junior employee, who was a practising Muslim, had complained that she felt "groomed" as the Claimant sought to "impose…religious views" on her by inviting her to church services, praying over her, laying hands on her and presenting her with a book about a Muslim Pakistani woman who had converted to Christianity.
The Trust investigated the complaint, found the Claimant guilty of misconduct and gave her a final written warning (reduced to a first written warning on appeal). The ET dismissed the Claimant's allegation that this amounted to discrimination or harassment on the grounds of religion, stating that although "religious acts" provided the context to the disciplinary process, the Trust had initiated the procedure due to the blurring of professional boundaries and the placing of improper pressure on a junior employee rather than any legitimate manifestation of her belief. The Claimant appealed.
The EAT dismissed the appeal, stating that since the right to "manifest" one's religion under Article 9 ECHR was qualified, it was important to distinguish between cases in which the employer's action was because of the manifestation itself; and those in which it was because of the inappropriate manner of the manifestation. This case fell into the latter category.
The Trust did not take disciplinary action because the Claimant had manifested religious beliefs in the context of legitimate voluntary and consensual exchanges with a colleague; but rather because she subjected a subordinate to unwanted and unwelcome conduct, going substantially beyond 'religious discussion', without regard to her own influential position. As the Trust’s actions were due to the inappropriate nature of the Claimant’s conduct rather than the manifestation itself, they were not discriminatory.
This case demonstrates that employers can legitimately tackle religious manifestations in the workplace if the conduct causes distress to other staff members. However, care should be taken to ensure that any relevant policies are followed and that sanctions are both proportionate (i.e. not “oppressive”) and consistent with previous action.
2. Master of a cruise ship held subject to UK Employment Law despite global travel
Windstar Management Services Limited v Harris
Employment Appeal Tribunal decision upholding an ET finding that it had jurisdiction to hear a claim of unfair dismissal brought by an employee who worked on a cruise ship throughout Europe and the Caribbean.
Windstar, a Company incorporated in the Channel Islands and which managed cruise ships, employed Mr Harris ("H") as a ship master. The cruise ship on which H worked toured throughout Europe and the Caribbean, but day to day operations were directed from the US and the ship itself was US-owned.
H's employment contract provided for English law to apply in the event of a dispute and his code of conduct originated from a British collective agreement. H lived in the UK, and the calculation of his "days of service" began on the day he flew from the UK to whichever port the ship was located and ended when he landed back in the UK following completion of the voyages for which he was employed. H was dismissed and brought a claim for unfair dismissal which Windstar challenged on jurisdictional grounds (i.e. that its employment did not have sufficient connection to Great Britain). The ET found that it had jurisdiction to hear the claim and Windstar appealed that decision.
The EAT upheld the ET's finding that it had jurisdiction to hear the unfair dismissal claim, ruling that it had not erred in law. The ET had approached the matter with reference to the "base principle" – the concept that jurisdiction is determined by the location where the employee, rather than the employer, is based. It found that H was based in the UK and was therefore entitled to statutory protection from unfair dismissal. In particular, the ET noted that H's days of service began on the date he left and ended on the date he returned to the UK, rather than being limited to the dates he was actually on board the ship, and took into account the choice of English law in H's employment contract.
Global mobility is of increasing relevance for employers and it is important they understand their legal exposure with an ever mobile workforce. This case demonstrates that English courts will make findings on the facts of each individual case and that providing for a choice of law, or stating the employee's 'base' in employment contracts will be relevant information when determining these issues.
3. Assistant manager held to have been constructively dismissed by football club despite his stated willingness to leave
Gibbs v Leeds United Football Club
High Court decision holding that an assistant manager's effective demotion was a repudiatory breach of contract and that his stated willingness to leave if suitable settlement terms were agreed did not preclude him from resigning in response to the breach and claiming constructive dismissal.
The Claimant was employed by Leeds United (the "Club") as "assistant manager". When the Club's manager left in May 2014, the Claimant also expected to lose his post to make way for a new management team, as is common practice in professional football. He declined a new role as "head coach" and the Club initially ordered him to continue working as he had previously done "as per [his] contract". Although the Claimant was willing and able to do this, he signalled his willingness to leave if an acceptable termination package could be agreed.
A deal was not agreed. Instead, the Club required the Claimant to attend work during the post-season period when players were away (and accordingly there was little work to be done); did not invite him to pre-season training in Italy; issued him with old kit; and subsequently instructed him to have "no contact and/or involvement" with the first team following the new manager's appointment. The Claimant resigned promptly in response to this latter instruction, claiming that by showing they were "not prepared to honour his contract", the Club had committed a repudiatory breach of contract. He brought his claim for constructive dismissal in the High Court.
The High Court held that the Claimant had been constructively dismissed. By isolating the Claimant from his involvement in the selection, tactics and training of the first team, the Club had demonstrated an intention to refuse to perform his employment contract as it had originally been made. This was repudiatory and the Claimant's justified resignation had clearly been in response to such instructions.
The fact that the Claimant had signalled his willingness to leave if a suitable termination package was agreed was considered irrelevant. Since he had remained willing (and indeed "keen") to fulfil his contractual duties as assistant manager at all material times, he had not himself breached his contract by initiating discussions about possible consensual termination.
This decision illustrates that where employees remain willing and able to perform their role until resignation, claims of constructive dismissal cannot be defended on the basis that the employee had floated the possibility of consensual termination on agreed terms. An unhappy employee who initiates such discussions is not, as a rule, in breach of contract and should not be marginalised, isolated or otherwise treated differently as a result of their actions.
4. Internal appeal process held not to extend limitation period for a Fireman's unfair dismissal claim
Rabess v London Fire & Emergency Planning Authority
Court of Appeal decision holding that an employee's effective date of termination was the date of their summary dismissal, notwithstanding a later internal appeal process which found that that the dismissal should have been on notice.
R was employed as a firefighter and was dismissed summarily due to gross misconduct on 24 August 2012. An internal appeal, which concluded on 9 January 2013, was partially upheld; finding that misconduct, rather than gross misconduct, had taken place but that the decision to dismiss should be upheld in any event, as R had been on a final warning. R was therefore entitled to six weeks' wages in lieu of notice.
On 6 January 2013, R issued an unfair dismissal claim. The claim was dismissed by the Employment Tribunal, which held that the effective date of termination ("EDT") was 24 August 2012 and therefore the claim was brought outside of the relevant three month time limit. R appealed to the EAT, which upheld the ET's earlier decision. R subsequently appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal and upheld the EAT's decision. It confirmed previous authority that the EDT is generally the date of summary dismissal irrespective of whether there might have been a repudiatory breach of contract by the employer. The Court considered that the EDT could be amended by the process of an internal appeal, but that it was a question of fact to be determined by the tribunal. In R's case, he had issued a claim before the internal appeal was determined, and the outcome of that internal appeal could not have been said to have made a difference to the EDT. R understood that he had been dismissed on 24 August 2012 and that he had three months within which to bring a claim; there was no argument that it was not possible for him to do so.
This decision confirms the longstanding position that an EDT will not generally change by virtue of an appeal. If the appeal overturns a dismissal then the individual will be deemed to have been employed during the intervening period.
5. Expecting disabled employees to work long hours could be considered discrimination
Carreras v United First Partnership Research
EAT decision confirming that an expectation that an employee should work long hours could be considered a 'provision, criterion or practice' and would require an employer to make reasonable adjustments for disabled employees who were put at a disadvantage.
The Claimant ("C") was employed as an analyst at the respondent company; typically working hours of 9am to 9pm. He was seriously injured in a bicycle accident in July 2012 and was off work for several weeks. On his return to work he continued to suffer from symptoms related to the accident, including difficulty concentrating, fatigue, dizziness and headaches.
C gradually increased his hours from approximately 8am to 7pm, but began to come under pressure from one of the owners of the company to work later hours. C objected in an email to the owner, who responded with an angry outburst in person. C resigned that day and followed up with an email to HR explaining his reasons and asserting a constructive dismissal. C issued employment tribunal claims for unfair constructive dismissal and disability discrimination. One month after his resignation, C moved to the USA, where his wife had started a new job.
The employment tribunal held that C was disabled for Equality Act 2010 purposes, but that no 'provision, criterion or practice' ("PCP") was shown which put C at a disadvantage compared to a person who was not disabled, and therefore the employer was not under an obligation to make reasonable adjustments. C appealed to the EAT.
The EAT allowed C's appeal, finding that the approach to the PCP issue adopted by the employment tribunal had been too narrow. It held that the employment tribunal should have looked at the reality of the situation more broadly, rather than focussing on the extent of the compulsion on C to work late hours and whether this constituted a 'requirement' (which was how it had been pleaded by C). A mere "expectation" would, in some cases, be sufficient to qualify as a PCP.
Further, the EAT found that the employment tribunal had erred in concluding that the employer's breach of contract had to be the sole reason for the resignation. The tribunal had placed excessive weight on C's decision to move to the USA (as being a motivating factor behind his resignation) and evidence that C would have withdrawn his resignation, had he been asked. As a result, the case was remitted to the employment tribunal to reconsider whether the employer was obliged to (and whether it did) make reasonable adjustments in relation to the PCP.
Whilst this decision does not broaden the law, it does illustrate the approach that tribunals should take when evaluating the existence of a PCP. It also demonstrates that a "workplace culture", including both express and tacit rules, may be considered as a whole where this impacts upon working practices. It serves as a reminder that employers should seek to manage disadvantaged employees sensitively with due regard to all the circumstances.