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Employment law case updates - January 2014

24 January 2014

Here are some recent important decisions of the Courts and Tribunals that highlight key developments in employment law.

Can an employee obtain an injunction to prevent a gross misconduct decision?

The Supreme Court has held that a court can intervene to prevent an employee having to face gross misconduct allegations when the conduct complained of is insufficiently serious to amount to gross misconduct. The Court also criticised an HR advisor's extensive amendments to an investigation report, holding that (in this case) the HR advisor's remit was limited to providing procedural advice but not to provide any conclusions in the investigation. The Court concluded that it will not normally be appropriate for a court to intervene before a decision is made but that it will do so in cases like this where common law damages would be unlikely to adequately compensate for dismissal. It is unclear whether similar principles would apply outside of the NHS/public office environment.

(West London Mental Health NHS Trust v Chhabra, Supreme Court)

Can a requirement to work on Sunday be discriminatory?

The Court of Appeal has revisited findings of the Tribunal that there was no discrimination in relation to requiring a Christian employee to work on a Sunday. The Court found that the law does not require a religious belief to be a core component of a recognised religion. Rather, the question is whether it is a genuine religious belief held by the individual. However, the Court agreed with the Tribunal that there was no practical alternative available to the employer in this case other than to require the employee to work on Sundays in accordance with her employment contract and therefore any discrimination was objectively justified.

(Mba v Mayor and Burgesses of the London Borough of Merton, Court of Appeal)

Employers cannot 'blindly' follow Occupational Health opinion

An employer had received an opinion from an occupational health advisor stating that the advisor considered that an employee who was off work with depression caused by work-related stress was not "covered" by disability discrimination legislation. The employer therefore sought to avoid liability for discriminatory acts by arguing that it could not reasonably have known that the employee was actually disabled. The Court of Appeal overturned the views of the Tribunal and held that an employer cannot simply adopt an advisor's opinion as its own. An employer must critically assess all information available and, if necessary, ask further questions to then make an informed decision about whether it considers an employee is or is likely to be disabled. This places a high burden on employers to critically assess medical evidence and, in particular, to ask for reasons for advisors' opinions.

(Gallop v Newport City Council, Court of Appeal)

Are previous warnings relevant to whether a dismissal is fair?

In this case the Employment Appeals Tribunal (EAT) held that a dismissal was fair when the employer took into account a current warning, even though it had been appealed and the appeal was yet to be heard. The employee had received a warning for failing to follow an instruction. She was then disciplined for inappropriate behaviour. The employer considered this behaviour only warranted a final written warning, but, when the earlier warning was taken into account, dismissal was justified. The employee appealed against dismissal and the employer reconsidered the circumstances of the first warning and determined that there was no reason to ignore the warning in reaching the decision to dismiss. The EAT in this case held that the Tribunal had directed itself to the correct test in determining whether the decision was within the range of reasonable responses. However, caution should be exercised in relying on this case as it will always depend upon the facts as to whether it is reasonable to rely upon an earlier warning in justifying dismissal.

(Rooney v Dundee City Council, EAT)

Political belief can be a philosophical belief for discrimination purposes.

An Employment Tribunal has found that a civil servant's strong political belief in "democratic socialism" qualified as a philosophical belief under the Equality Act 2010. The Tribunal considered that mere support of a political party would be insufficient, but this employee's strong connection with the ideals and history of the Labour Party were sufficient to evidence a philosophical belief capable of protection under discrimination law.

(Olivier v Department of Work and Pensions, Employment Tribunal)

Just what is the difference between "holding" and "manifesting" a religious belief?

The EAT has found that the distinction is unclear, but has tried to give some guidance. In this case an employee was dismissed after she held an unauthorised training session at which manifestations of her religious beliefs led to various complaints from other staff. The Employment Tribunal held that the employer dismissed the employee due to the inappropriate way in which she shared her beliefs, rather than on the grounds of her belief as such. The EAT upheld this decision but did comment that there is "no clear dividing line between holding and manifesting a belief and that unjustified unfavourable treatment because an employee has manifested his or her religion may amount to unlawful discrimination." In other words, it is still very difficult to be certain in this area and caution should always be exercised.

(Grace v Places for Children, EAT)

For more information please contact Kirsti Laird, Senior Associate (Qualified in New Zealand)

T: +44 (0)20 7427 6411

kirsti.laird@crsblaw.com