Integration or Separation of Church and State?

Last year the House of Lords ruled that ministers of religion could bring claims for discrimination in the employment tribunal in the case of Percy v Church of Scotland. The case was referred back to an Employment Tribunal to decide if Mrs Percy had a case (she had been disrobed after allegedly disrobing with a married man who was not her husband). The Church of Scotland has reportedly settled the claim for £10,000.

The House of Lords left open the issue of whether a minister of religion could sue for unfair dismissal. The definition of employee in discrimination law is wider than in unfair dismissal law. The Employment Appeal Tribunal has today ruled in Sylvester Stewart v the New Testament Church of God that the earlier decision of the Watford Tribunal that ministers of religion can have unfair dismissal rights was correct. The full judgement is here.

Headline Fiasco

"26 October 2006

I GOT DRESSING DOWN FOR NOT WEARING SUIT IN A BUZZARD

Chauffeur's blast at lord

By Craig Mcdonald

A CHAUFFEUR told yesterday how he battled through a blizzard to pick up his boss - only to be criticised for not being properly dressed."

I have quoted the text of the Daily Record's original webstory as I am sure they will correct the surreal typo sooner or later. Unless of course impromptu taxidermy was part of his job description...

The Apprentice

In James LLoyd v Federal-Mogul Sintered Products Ltd the Birmingham Tribunal has awarded £24,000 to an apprentice who was dismissed three years into a four year apprenticeship. £20,000 was for breach of the apprenticeship contract and £4000 was for unfair dismissal. This is a reminder that although apprentices are covered by the unfair dismissal regime they cannot be easily dismissed without following the proper processes set out in the apprenticeship contract.

You've not started so you're finished...

In Andrew Logue v Argyl & Bute Council the Glasgow Tribunal has found that a blind social worker who never actually started work because his bosses kept putting off his start date was discriminated against on grounds of his disability. The cause of the delay was the Council's need to check that the support worker needed to enable Mr Logue to work, was suitable. There is public funding for adjustments made to help disabled people work and I expect that this support worker post was so funded. At the meeting where his support worker was to be interviewed there was some form of row about hours and Mr Logue "stormed out". The Council then assumed he no longer wanted the job and wrote to him regretting this. On the face of the report its hard to see what the discrimination was- however it is a useful reminder that discrimination law kicks in some time before employment commences and that even dismissal law does not require an employee to actually start employment. Above all though it is a warning about "interpreting" employee behaviour as meaning anything beneficial to an employer. The safest course is to check if they have in fact resigned.

No veils please

An eagerly awaited employment tribunal decision which was heard in July before Jack Straw's comments kicked off the public debate on the veil . According to the BBC report the claims for religious or race discrimination and harassment for suspending the veiled teacher have been dismissed. However £1100 has been awarded to her for victiminsation, £1000 for injury to feelings and £100 as the 10% uplift for failing to follow the statutory grievance procedure properly. It is not clear what the victimisation claim was for - in law it would have to be for subjecting her to a detriment or treating her less favourably because she raised complaints of discrimination or harassment. It does not appear that the suspension was the act of victimisation.

This may not be the end of the matter as the Council have said she can return if she agrees to remove the veil and she has said she has no intention of doing so. She also intends to appeal against the decision.

Rejecting part-time work request = sex discrimination

In Kate Haslam v All Hallows RC High School the Manchester Tribunal found that Mrs Haslam returned to work after maternity leave in January last year, she had been allowed to work two days a week on a short-term basis for six months but when she asked the school's head if the part-time arrangement could be made permanent she was refused, as the head believed the quality of teaching would suffer if pupils were dealing with more than one member of staff. The head believed there was an insufficient source of part-time teachers to become involved in a job-share arrangement. The Tribunal said this was indirect sex discrimination and the School should have investigated the possibility of a job share. It appears that there was a settlement as there is no report yet of any award.

The comment section in the Manchester Evening News is quite amusing:

"What an absolute disgrace! Here we have another public sector tribunal being won by the claimant because the panel was probably being to 'politically correct'. "

Well it has got nothing to do with political correctness - it's about making sure women are not penalised for raising their kids.

Sacking for covert tape recording fair

In Pendleton v Pennine Housing 2000 the Leeds Tribunal has held that the dismissal of a caretaking coordinator for secretly recording conversations with his co-workers was fair. When the co-workers discovered the recordings they made it clear they would not work with him again. This was sufficient to bring the dismissal within the band of reasonable responses a reasonable employer could take and thus the dismissal was fair. His defence was that he had a poor memory and illegible handwriting. Which begged the question - why didn't he tell people he was recording the meetings?

£17,560 for pregnancy dismissal/harssment

In Emma Nicholson v Network Global Solutions a boss hired a former Miss Great Britain finalist because her looks would make her a good salesperson. She was bullied into posing topless during a sales training day - with the photograph later pinned up on a noticeboard. She told them she was pregnant and had her company car removed and her work possessions dumped in her front garden. She was later sacked. After the first hearing last March her boss bought a racehorse and named it Emma Told Lies. This did not impress the Tribunal. The company were lucky to get away with an award of £17,560. The final line of the Sunday Mirror report may suggest why....

Veil of Tears continued....

The teaching assistant suspended for refusing to remove the full veil whilst teaching in class is now reported as saying that she was prepared to remove her veil in class provided that there the were no men in her class. For an employer to respect this wish would open them to a claim of unlawful sex discrimination by male teachers prevented from doing their job. No employer can tolerate being put into this position.

And on the Seventh Day he rested....

In Estorinho v Jokic a cafe knowingly hired a catholic chef who did not want to work on Sunday because of the Old Testament prohibition on working on the sabbath. After several years of this arrangement the cafe decided they wanted him to work on Sunday. The chef raised a grievance based on religious discrimination and in retaliation the cafe sacked him. The tribunal found that the dismissal was because the chef complained he was being discriminated against on grounds of religion and was unfair. The report doesn't indicate the compensation sum.

There was no doubt in this case that the religious beliefs were genuine. Future cases may though turn on whether an employee genuinely has a religious objection to sabbath working.

Veil of Tears....

In the political satire "Bulworth" the press are shown asking inanely "Is there a controversy here": the last week has felt much the same with the coverage (which is indeed the appropriate word) of the veil row. In this climate it's no suprise that employment law has been roped in. The Guardian reports the suspension of a teaching assitant for refusal to remove her veil when teaching. The report says the matter is going to a Tribunal already. I assume that the teacher is challenging the suspension as being in breach of the 2003 rules on religious discrimination and possibly under the sex discrimination act. If the claim is one of direct discrimination the school will have to show that it would suspend a non-moslem for wearing attire that covered the face. That should be an easy task as its hard to believe a school would tolerate a teacher wearing a full balaclava in the class room. The trickier task is to defend a claim of indirect discrimination. A rule that a teacher's face must be visible to the pupils is on the face of it neutral but in reality is aimed at preventing the use of the full veil. To defend the claim the school will need to show that the requirement is a proportionate method of achieving a legitimate aim. Expect to hear a lot from anthropoligists and educational psychologists as this moves through the system. As a School Governor myself I know where my sympathies lie.

POSITIVE RACE DISCRIMINATION IS ILLEGAL

This headline should be branded on to the HR department of Gloucestershire police. The case of Matt Powell v Chief Constable for Gloucestershire establishes no new principle. It stated a law that has been in place for 30 years. The police wanted to increase it's number of ethnic minority employees and at the next recruitment drive allowed all ethnic minority applications through to shortlisting but weeded out 2/3 of the white applications by random selection. This was so obviously racial discrimination its hard to believe - the Bristol Tribunal awarded £2500 as compensation for injury to feelings.

Sex pest payout

In Siddika v Guardian Care Home the Birmingham Tribunal awarded £7000 against the company whose boss allegedly sent her text messages that were overly familiar; asked for sex; made dirty phone calls. The sum of £7000 includes loss of earnings and injury to feelings and seems low. The Tribunal may have been awarding less because they didn't believe everything the claimant told them.

Boss too drunk to be punished

The current law is that if an employer fails to follow basic dismissal procedure any award for compensation is increased by at least 10% and can be increased by 50%. A tribunal can in exceptional cases refuse to increase the award. The Glasgow Employment Tribunal has given such an example in Foley v Galbraith. The employee was a Personal Assistant sacked without any warning or meetings. His boss employed him personally to do his washing, ironing, shopping and to pay his bills. . However his boss couldn't recall anything about the allegations of theft that he said caused dismissal as he was an alcoholic with severe physical disability. For this reason the Tribunal felt it unfair to punish the employer further. The P.A. got loss of earnings for 13 months in a total award of just under £14,000.

How not to deal with depression

In Adamczyk v East Sussex County Council the claimant was off ill for depression from Summer 03 to Spring 04. When she tried to come back in a phased return to work she was told that her post was no longer necessary. It does sometimes happen that employers only realise that they are overstaffed when someone is off sick or on maternity leave. In this case the Tribunal decided that the real reason was that they didn't want the aggro of dealing with a depressive employee. The give away was the fact that the School were advertising to recruit for almost the same post as the Claimant. This is a big warning against using the dodge of a "redundancy" to get round the Disability Discrimination Act.

£60,000 for unfairly dismissed 57 year old

The Industrial Tribunal in Belfast has awarded the maximum compensation for a 57 year old IT manager sacked to make way for another colleague. McDonald v Auto Indemnity (UK) Ltd is a useful reminder that Tribunals take it as read that older employees find it harder to find alternative work and that loss of earnings awards can be made for several years pay.

Sacked for eating 6 grapes

The Daily Mirror reports the astonishing dismissal by Waitrose of a man with learning disability for eating six grapes left loose by a customer in a trolley. This isn't a Tribunal case yet but seems to me to be a clear cut case of management following procedure without engaging their brains.

Holiday invite costs boss £33,000

The Exeter Tribunal has awarded £33,697 in Bing v Chard Town Council and Prior against the Council's ex Lord Mayor for sexual harassment. The Council had settled Ms Bing's claim against them for £25,000. A reminder that employees can sue both the harasser and the employer. The award reflected the rather the harasser's attempts to develop a relationship with an employee by inviting her to lunch, then to Andorra for a holiday. Ms Bing went off sick in response and raised a grievance which led to the Mayor being de-chained by the Council. The now ex- Mayor made things much worse by issuing a press release giving details of the allegations and her home phone number, and implied she was not really sick.

"I'm fed up with you - you're fired"

In Smith v MacDonald Transport the Tribunal awarded £8500 to an employee who was sacked on the spot for basically standing up for himself. The interesting thing to note is that his actual lost wages were about £2000. The final award was £8500 because there was a 50% uplift for failure to call a formal dismissal hearing; 4 weeks pay (capped at £290 a week) because he hadn't been given a proper written statement of employment terms; 2 weeks pay because he hadn't been given a reason for his dismissal and 10.5 weeks pay because he was 60 and had served 7 years with the company.