March Case Round-Up

In this month’s E-News we consider whether an accusation of being “too left-wing” amounts to discrimination because of someone’s philosophical belief; whether forwarding a pornographic email to work colleagues amounts to a repudiatory breach of the employment contract and finally, whether Type 2 diabetes (controlled by diet) is a ‘disability’ under the Equality Act 2010.

We also review the Government’s response to the consultation on the zero hours contracts exclusivity ban.

Does an allegation of being “too left-wing” amount to discrimination because of someone’s philosophical belief?

This was considered by the Employment Appeal Tribunal (EAT) in the case of Henderson v GMB.

Mr Henderson was employed by the GMB union as a Regional Organiser, who had been tasked with organising a picket line at the House of Commons that tried to stop Labour MPs crossing. Mr Henderson wrote a letter publicising the picket line in the media, which resulted in Ed Miliband facing some challenging questions from the Prime Minister. Mr Henderson was subsequently accused of being “too left wing” by his employer and was dismissed for gross misconduct.

At first instance, the Employment Tribunal (ET) found that Mr Henderson had been fairly dismissed for gross misconduct. However, the ET also found that his “left-wing democratic socialist beliefs” amounted to a philosophical belief, capable of protection under the Equality Act 2010. Further, the ET held that Mr Henderson had suffered direct discrimination and harassment because of these beliefs, for which he was awarded compensation for injury to feelings.

Both parties appealed.

The EAT dismissed Mr Henderson’s appeal but upheld that of GMB, on the basis that the dismissal had not been because of Mr Henderson’s philosophical beliefs. The EAT held that whilst the GMB’s dismissing officers had been unsympathetic towards Mr Henderson, this was more likely because of his conduct rather than his philosophical beliefs.

When considering the “too left wing” comment, the EAT emphasised the importance of taking account of the context in assessing whether an act is sufficiently serious so as to amount to unlawful harassment. In this case, the EAT highlighted that the comment was an ‘incident’ rather than an ‘environment’ and that whilst isolated acts can amount to harassment, they must be sufficiently serious to do so.

As such, this case demonstrates that whilst “left-wing democratic socialist beliefs” can amount to a philosophical belief, capable of protection under the Equality Act 2010, employers will not be liable for trivial or isolated incidents, which are not sufficiently serious to warrant a finding of harassment.

Does forwarding a pornographic email at work, amount to a repudiatory breach of the employment contract?

This was considered by the High Court in the case of Williams v Leeds United Football Club (LUFC).

Mr Williams was employed as a Technical Director at LUFC. His employment was terminated by reason of redundancy. Mr Williams had a 12-month notice period, which LUFC wanted to avoid paying and they hired a firm of forensic investigators to find evidence of gross misconduct against Mr Williams. LUFC subsequently found out that Mr Williams had sent an obscene and pornographic email to his colleagues, including a female member of staff, five years earlier. LUFC summarily dismissed Mr Williams on the grounds of gross misconduct during the notice period and refused to pay him the balance of his notice pay, which amounted to £200,000.
Mr Williams brought a claim for wrongful dismissal. The High Court dismissed his claim on the basis that his actions amounted to a repudiatory breach of the implied term of trust and confidence, entitling LUFC to dismiss him without notice.

Despite the fact that LUFC had been actively looking for a way to avoid the notice payment and that the misconduct had occurred five years earlier, the High Court held that LUFC were entitled to rely on a later finding of gross misconduct, to justify the decision to summarily dismiss. The High Court stressed that it was important to consider all of the circumstances of the case in order to assess the seriousness of the breach. In this case it took account of Mr Williams’ seniority; that the email was sent to a junior female employee, leaving LUFC vulnerable to a harassment claim and potential reputational and commercial damage.

This case illustrates the circumstances in which an employer may be able to rely on an employee’s breach of trust and confidence, as grounds for dismissing them without notice. This case was fact sensitive and, had it not been for the employee’s seniority; the fact the email was sent to a younger female colleague and the risks posed to LUFC’s reputation, the case could well have been decided differently. Further, the decision does come with a health warning. Whilst LUFC were not criticised for their approach, employers should be wary of carrying out fishing expeditions to uncover misconduct, as they themselves could be deemed to be in repudiatory breach of the implied term of trust and confidence.

Can Type 2 diabetes amount to a disability under the Equality Act 2010?

This was considered in the case of Metroline Travel Ltd v Stoute.

The Claimant, Mr Stoute was employed by Metroline Travel Ltd as a bus driver. Following his dismissal for gross misconduct he argued that he was disabled because he had Type 2 diabetes, for which he took medication and maintained a diet to reduce his blood sugar levels, such as abstaining from sugary drinks. If he failed to properly manage his blood sugar levels, he was at risk of having a hypoglycaemic attack.

At first instance, the ET accepted that he was disabled under the Equality Act, however, his employer appealed the decision specifically on the meaning of ‘disability’.

The EAT allowed the appeal on the basis that it could not accept that abstention from sugary drinks constituted a substantial adverse effect on day-to-day activities, within the meaning of the Equality Act 2010. Further, they held that Type 2 diabetes did not amount to a disability per se.

In reaching its decision, the EAT considered whether a particular diet could be a ‘treatment or correction’ that must be ignored when assessing whether the effect of an impairment is substantial, adverse, and long-term. Interestingly, the EAT ruled that whilst a particular diet could be regarded as a ‘treatment or correction’, the abstention from sugary drinks in a diabetic diet, would not qualify as measures taken to treat or correct the condition.

In the news

Following its consultation into the proposed ban on exclusivity clauses in zero hours contracts, the Government acknowledged that employers could seek to circumvent the exclusivity ban by offering limited hours and fewer opportunities to zero hours workers who also undertook work elsewhere. In response, the Government has published the measures it intends to take to tackle avoidance of the forthcoming ban, which include:

  • Giving zero hours workers the right to seek redress (compensation) in the Tribunal, if they are subjected to a detriment as a result of working for another business; and
  • Giving Tribunals the power to issue financial penalties to employers who breach the exclusivity ban; and
  • Extending the scope of the ban to cover low income (as well as zero hours) workers.

Employers should consider reviewing the terms of their zero hours contracts and educating managers on the implications of the government’s measures. Finally, employers should ensure that if Settlement Agreements are entered into with zero hours workers, then these new rights are covered.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.