Summary Dismissal and Gross Misconduct

Thanks to Ed McFarlane of Deminos HR for preparing this case summary Can an employee be dismissed without notice for disclosing confidential information? Yes, held the High Court (Whipple J) dismissing a claim for wrongful dismissal and breach of contract in Farnan v Sunderland Association Football Club. The Claimant was the Club's International and National Marketing Director.  The Club summarily dismissed him without notice, having suspended him and trawled through his work emails. The Club alleged breaches of confidence and other matters, including sending a lewd email and making derogatory comments. The Court found that the Claimant had committed serious and repeated breaches of contract by 'banking' confidential information about sponsorship bids, which he sent to his wife's private email, purportedly for administrative support but in fact to keep evidence if he ever ended up in litigation with the Club. The Claimant had also used confidential bid documents for his own purposes in seeking employment, briefed a journalist against clear Club policy, and wrongly disclosed a sponsorship agreement to a third party. This was sufficient justification for dismissal without notice. The Court noted that an email containing confidential information to a former director, David Miliband, was not a breach of contract, as on the facts it was in the best interests of the Club, at a time of crisis around the appointment of Paolo di Canio, whose politics were controversial. The Court however criticised the Club for trumping up part of its case against the Claimant, alleging that his emails had derogatory comments about the CEO, and noting that his sending a lewd Christmas card email of 10 bare-breasted women was not gross misconduct in the context of other incidents tolerated by the Club, including a birthday card sent by a co-director to the Claimant's wife saying 'Happy Birthday all the breast', which the Club's CEO appeared to have accepted as a typo, requiring more care in future. This is a case of 'two halves', with employment tribunal proceedings for unfair dismissal stayed pending the outcome of the contractual case.

Part-Time Pensions

Thanks to Sandy Kemp of Clyde & Co for preparing this case summary Can the purposive interpretation obligation for the construction of statutory provisions to give effect to EU Directives (theMarleasing principle) extend to the deletion of a key provision? No, held the Inner House of the Court of Session in The Advocate General for Scotland v Barton. Lady Smith held that the proposed rewriting of the statute would distort a piece of primary domestic legislation to such an extent that it would not be an appropriate application of the Marleasingprinciple. “...there are limits to what can be done by the court to amend the expressed will of Parliament as set out in its legislation and care has to be taken to ensure that the court does not legislate under the guise of reading down.” This decision stands in stark contrast to the decision of the EAT in Bear Scotland v Fulton and others. The Inner House is the equivalent in Scotland to the Court of Appeal, and the case gives some support to those seeking to argue that in this respect Bearwas wrongly decided.

Discrimination: Instruction to speak English not discrimination

Thanks to Ed McFarlane of Deminos HR for preparing this case summary Was an instruction to a non-native English speaker not to speak in her native language at work discriminatory? No, held the EAT in Kelly v Covance Laboratories Ltd, dismissing the appeal. The Russian-born Claimant alleged that she had been subjected to discrimination and harassment on the grounds of race or national origin. The Claimant was instructed not to speak Russian at a laboratory involved in animal testing, her conduct in leaving her work station and talking on her phone gave the Respondent cause for concern that she might be an animal rights infiltrator. The Respondent's language policy operated in the context of the Respondent's requirement for its English-speaking managers to understand conversations for security reasons. On the facts found by the employment tribunal, the policy of requiring only English to be spoken at work was not applied because of the Claimant's race or national origin, but her behaviour at work in the context of that particular working environment, it was neither direct discrimination nor harassment, and there was no evidence that the instruction had caused any harassment. The EAT held that the employment tribunal had properly directed itself in law and made permissible findings on the facts. Whilst it can be direct discrimination or harassment to ban the use of a foreign language at work, a comparator speaking any other language apart from English would have been treated in the same way as the Claimant. The EAT rejected an argument, seeking to follow Dziedziak that there was an intrinsic link between the instruction and the Claimant's national origin as she had been instructed not to speak in her 'native Russian', the Respondent's explanation demonstrated no link to national origin in the complained of treatment.

Mitigation of Loss

Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.

The EAT (Langstaff P) has summarised the main principles in decisions on mitigation of loss in Cooper Contracting Ltd v Lindsey.

The Claimant carpenter was found unfairly dismissal and awarded losses on the basis he was entitled to have commenced true self-employment post dismissal but there were better paid employed opportunities "out there".

The Respondent's grounds of appeal argued inadequate reasoning by the employment tribunal, stating the Claimant had not reasonably mitigated his loss between dismissal and the hearing.

Dismissing the appeal the EAT summarised the legal approach to mitigation:-

- the burden of proof is on the wrongdoer - not the Claimant - so, without the former submitting mitigation evidence, the employment tribunal has no obligation to make a finding;

- the Claimant must be shown to have acted 'unreasonably', not necessarily 'not reasonably';

- determination of unreasonableness is a question of fact, taking account of the Claimant's views and wishes, though assessment is objective.

- the employment tribunal should not put Claimants on trial as if losses were their fault;

- the employment tribunal's approach is: "It is for the wrongdoer to show that the Claimant acted unreasonably in failing to mitigate";

- failure to take better paid jobs do not necessarily satisfy the test.

Negative References and Disability Discrimination

Thanks to Karen Jackson of didlaw for preparing this case summary

Did a tribunal err in its approach to the burden of proof when it required a Claimant to show that the only inference which could be drawn from a negative oral reference was that discrimination had taken place?

Yes, held the EAT in Pnaiser v NHS England and Coventry City Council.

Focussing on paragraph 122 of the employment tribunal judgment, the EAT found that the employment tribunal had imposed an impermissibly high hurdle on the Claimant and one which went beyond the requirements of sections 136(2) and (3) of the Equality Act to raise merely a prima facie case.

The employment tribunal had also failed to consider whether there was a link between Ms Pnaiser's sickness absences at the Council and her manager Ms Tennant's adverse assessment of her suitability for a role with NHS England due to disability-related sickness absence.

The EAT found that the Claimant had made a prima facie case which shifted the burden to the Respondents and substituted findings of unlawful disability discrimination pursuant to section 15.

On the EAT's findings the unfavourable oral reference was given partly in consequence of sickness absence which arose from disability and was therefore in breach of section 15.

The case was remitted for remedy.

Disability Discrimination and Reasonable Adjustments

Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary

Should the duty to make reasonable adjustments under s.20 of the Equality Act be abolished?

No, held the Court of Appeal in Griffiths v Secretary of State for Work & Pensions.

The Appellant was an administrative officer who suffered from post-viral fatigue and fibromyalgia. She asked the Respondent to withdraw the warning issued after a 66-day absence from work, mostly attributable to her disability, and to modify the policy for the future so that she could have longer periods of absence without sanction than would be permitted to a non-disabled employee. The Respondent refused, and the Appellant complained of a failure to make reasonable adjustments required under the Equality Act.

The provision, criterion or practice (PCP) relied on was “a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal.” The employment tribunal and EAT felt bound by the perplexing decision of the EAT in Royal Bank of Scotland v Ashton to hold that the PCP did not put the Appellant at a disadvantage compared with those who were not disabled, because a non-disabled employee absent for a similar period would have been subject to the same process. Hence no s.20 duty arose.

The trouble with Ashton was that it abolished the duty to make reasonable adjustments at a stroke. If the correct comparator is a person on whom the practical effects of a PCP are the same as they are on the disabled person, no s.20 duty can ever arise: the devoted pet-owner’s dinner is as much disrupted by the restaurant’s ban on dogs as the blind diner’s.

Though dismissing the appeal (for other and less interesting reasons), Elias LJ has finally laid Ashton to rest.

Discrimination: Less Favourable Treatment and Assessing Compensation

Thanks to Miranda de Savorgnani of Outer Temple Chambers for preparing this case summary

Was an employment tribunal entitled to find that part-time judges of the Residential Property Tribunal had been less favourably treated than their full-time comparators in respect of payment for judgment writing? And was the employment tribunal entitled to take a rough and ready approach to the quantification of the extent of the less favourable treatment?

Yes, on both counts, held the EAT in MOJ v Burton & Engel.

The Claimants (who had been appointed as Lead Claimants) were both former judges of the Residential Property Tribunal who alleged that they had been less favourably treated than their full-time comparators "full-time salaried judges of the First-Tier Tribunal (Tax Chamber)" in respect of payment for judgment writing in Leasehold Valuation Tribunal cases.

The employment tribunal upheld their claims and went on to determine that the Claimants were, subject to mitigation of loss arguments, entitled to be paid two-thirds of a daily sitting fee for each day they spent sitting on a substantive case. The MOJ appealed on both liability and quantum.

In dismissing the appeal President Langstaff held that the fact that Tax Judges were entitled to be paid for judgment writing as a right, whereas the Claimants were subject to a discretionary system, was sufficient to establish less favourable treatment.

As to the employment tribunal's approach to quantification, President Langstaff held that the figures reached as a result of a broad brush assessment could not be said to be manifestly too low.

Mr Engel succeeded in various aspects of a cross-appeal and on that basis the case was remitted to the employment tribunal.