Employment Case Developments in June

SG –v– Head Teacher and Governors of St Gregory’s Catholic Science College

The school had a uniform policy prohibiting boys from wearing their hair in cornrows. The policy was ruled to be unlawful and to be indirect racial discrimination. Interestingly, the Claimant’s sex discrimination claim on the same basis failed.

Wilcox –v– Birmingham CAB Services Ltd

The EAT has held that the duty to make reasonable adjustments under the Disability Discrimination Act 1995 only applied where an employee knew or could reasonably have been expected to know both that the employee in question was disabled and likely to be substantially disadvantaged by that disability. In this particular case the employer did not know, and could not have reasonably been expected to know, that the Claimant was disabled until it received a consultant’s report.

Sheffield City Council –v– Norouzi

Sheffield City Council were held liable under the Race Relations Act for third party harassment. In the Tribunal’s view, Sheffield City Council had not done enough to protect a Social Worker from regular racial harassment at the hands of a child in a Care Home and were therefore held liable for indirect race discrimination and racial harassment.

Independent Insurance Company Ltd (in provisional liquidation) –v– Aspinall & another

The EAT has held that where an individual claims for protective award for beach of the collective consultation requirements under the Trade Union and Labour Relations (Consolidation) Act 1992, a tribunal cannot treat the claim as representative of claims to a group of employees in similar circumstances. Each individual would have to bring their own particular claim.

Phillips –v- Xtera Communications Ltd

The Claimant, who had been made redundant, argued he was entitled to a protection award due to a failure by the employer to hold an ‘election’ for employee representatives when the number of nominations matched the number of representatives. The Employment Tribunal disagreed and an appeal was lodged in the EAT. The EAT held that an ‘election’ takes place for employee representatives and redundancy collective consultations under the TULRCA 1992 where the number of nominations equals the number of representatives positions, even if there is no ballot.

R –v- Governors of X School [2011]

[In R –v- Governors of X School [2011]] the Supreme Court held that a teaching assistant accused of sexual misconduct with a minor could not rely on the right to a fair trial in Article 6 of the European Convention on Human Rights to insist on legal representation at the school’s disciplinary hearing.  The court confirmed that the correct test was whether the disciplinary proceedings had a ‘substantial influence or effect’ on the outcome of the proceedings before the Independent Safeguarding Authority to consider whether the employee should be put on the children’s barred list. If they did then Article 6 would apply to give entitlement to legal representation. However in this case the test had not been correctly applied. The court held that there was no reason to believe that the ISA would be unable to form its own view of the facts independent from that of the school governors. As the governors’ determination would not have a substantial influence on the ISA’s decision there was not a sufficient connection between the disciplinary proceedings and the ISA proceedings which determined G’s civil right to practise his profession. There was therefore no right to legal representation in this case.

If you require any further clarification in relation to the above developments, or if you need any other assistance then please do not hesitate to contact our team of specialist employment solicitors on 0161 832 3304:

Shiva Shadi                      Partner

Anna Bunting                   Associate

Claire Reddington            Solicitor

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