Employment Law Case Developments in March

Unfair Dismissal

(Moore -v- President of the Methodist Conference, EAT)

A Methodist minister was allowed to pursue a claim of unfair dismissal, whereas the Tribunals had previously found Ministers not to have been employees.

Sexual Orientation

(Thomas Sanderson Blinds Limited -v- English)

It was held that a heterosexual employee who was subjected to homophobic banter did not suffer harassment under the Sexual Orientation Regulations.  The Tribunal took into account the employees own “extremely offensive behaviour” and that he had remained friends with those he alleged had tormented him and had not complained about them.

Religion or Belief Regulations

(Hashman -v- Milton Park (Dorset) Limited)

A general belief in the sanctity of life extending to an ardent belief in anti fox hunting, was held to constitute a philosophical belief for the purposes of the Regulations.  However, the Tribunal went to lengths to explain that this case turned on specific facts and would not necessarily cover all those opposed to fox hunting.

(Maistry -v- BBC)

The Tribunal has held that a belief in the “higher purpose” of public sector broadcasting to encourage debate and citizenship was a philosophical belief that qualified for protection under the Religion or Belief Regulations.

Disability Discrimination

(Tameside Hospital NHS Foundation Trust -v- Mylott)

A Tribunal’s decision that a failure to facilitate a disabled employee’s application for ill health retirement amounted to a breach of duty to make reasonable adjustments has been overturned by the EAT.  The duty to make reasonable adjustments was stated to be steps to be taken by an employer in order to allow a disabled employee to remain in employment, not to enable them to leave employment on favourable terms.  This case is also authority for a claim for aggravated damages.  The EAT stated that although the employee’s manager had been “brusque and insensitive”, this was not sufficient to justify an aggravated damages award.

Sex Discrimination

(Eversheds Legal Services Limited -v-  De Belin)

The law firm inflated a score of a female colleague who was on maternity leave whist carrying out a redundancy selection exercise.  It was held that this discriminated against a male colleague on the grounds of his sex.  Pregnant employees and those on maternity leave should be treated more favourably than male colleagues to the extent that it is reasonably necessary to remove the disadvantages by reason of their condition. 

In this particular case the employer had awarded the female employee a maximum score in respect of one of the selection criteria, whilst the male colleague was left with his actual score.  It was held not to be a proportionate means of removing any disadvantages suffered by the women. 

In these circumstances, it is always advisable to measure both employees actual performance during the period before the women’s maternity leave actually started.

Illegal Worker and Discrimination Case

(Allen –v- Hounta and an Other)

An unusual case where it has been held that an individual who entered the UK dishonestly and who had no right to work, was not prevented from pursuing a race discrimination claim against his UK employers.  This is different to all previous cases where all illegal workers claims had been barred on the ground of illegality.  In this case it was stated that the employee’s illegal conduct had been instigated by the employers who had wanted her to come to work for them in the UK.

SOSR Dismissals

(Ezsias -v- North Glamorgan NHS Trust

A consultant surgeon claimed that he had been automatically unfairly dismissed due to making protected disclosures and on the basis that the NHS trust had failed to implement disciplinary procedures under the nationally agreed Whitley Council Terms.  The employer had investigated the Claimant’s alleged protected disclosures were not made in good faith and his conduct had led to the breakdown of relationships as many of the Claimant’s colleagues would not be happy to work with him again.   It was held that the disciplinary procedures were not applicable as the allegation did not relate to the Claimant’s conduct but for some other substantial reason, being the breakdown of trust and confidence.

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