New legislation, decisions and cases

It has been a quiet month for cases and new legislation. However, we have selected a few decisions which we hope you will find of interest.

Religion or Belief

The Employment Equality (Religion or Belief) Regulations 2003 came into force in December 2003. The Regulations make it unlawful for an employer to discriminate against an employee on grounds of religion or belief. Discrimination occurs if the employee or job applicant is treated less favourably than another employee or job applicant. Less favourable treatment can be in relation to (among other things) appointment to a post; promotion; training and dismissal. The Regulations unhelpfully define religion or belief as ‘any religion, religious beliefs, or similar philosophical belief’.

In the case of Baggs v Fudge, Baggs was refused an interview for a job as he was an active member of the British National Party. He brought a claim of discrimination under the Employment Equality (Religion or Belief) Regulations 2003. Whilst the (potential) employer did not deny refusing Baggs an interview due to his BNP membership, it did deny discrimination on the grounds that membership of the BNP did not form a religion or belief. The Employment Tribunal agreed. The BNP was a political party which restricts membership on ethnic grounds but which does not require members to belong to a particular religion or hold certain philosophical beliefs. The Employment Tribunal also ordered Baggs to pay a contribution towards the employer’s costs as the claim had no reasonable prospect of success.

Disability Discrimination

Under the Disability Discrimination Act 1995 an employee must have a physical or mental impairment which has a substantial and long term adverse effect on the employee’s ability to carry out normal day to day activities.

In Durham v Ashford Windows (2005) the Employment Appeal Tribunal held that general learning disabilities can amount to a mental impairment (and therefore, potentially, a disability) if sufficiently serious. This is the case even though the learning disabilities may not be as a result of a mental illness (as opposed to an impairment).

This is an important decision as previous decisions under the Disability Discrimination Act 1995 have focused on the requirement for mental illnesses (giving rise to a mental impairment) to be clinically recognised. This has resulted in a restricted approach to the Act and has prevented certain employees, for example, employees suffering from depression, rather than clinical depression, from being able to bring disability discrimination claims. Whilst this decision does not alter the law in relation to mental illnesses, the requirement for mental illnesses to be clinically well recognised is expected to be removed from December 2005 due to the Disability Discrimination Act 2005. However, this decision clarifies that an employee suffering from a mental impairment but which is not a mental illness, is covered by the Act, thus extending its scope.

Sexual Harassment

Currently, the Sex Discrimination Act 1975 does not specifically make harassment unlawful. However, the Tribunals and Courts have long recognised that employees do need protection from this behaviour and the law has developed to allow an employee who has suffered harassment to bring a claim for direct discrimination on the basis that harassment in itself is less favourable treatment and a detriment. However, the employee must show that the behaviour is on the grounds of sex.

In the case of Loosley v Moulton, Loosley brought a claim for sex discrimination on the basis that her manager had subjected her to remarks about her “being on the game” and other gender specific comments. However, her claim failed. The Tribunal found that Loosley was part of a group which participated in office banter and innuendo. Loosley had made similar comments herself as part of that banter. As such, her manager’s behaviour towards her had not been due to her sex but due to her being a member of the group. Further, the fact that Loosley had contributed to the banter and culture within the office showed that the behaviour was not unwanted.

In October 2005 the Employment Equality (Sex Discrimination) Regulations 2005 will come into force which will amend the Sex Discrimination Act 1975 to expressly protect employees from harassment. Employees will not have to show the behaviour of the harasser was due to the employee’s sex. This will make harassment claims easier to bring.

Disability Discrimination

In the case of OCS Group Ltd v A. J. Taylor (2005) the Employment Appeal Tribunal held that an employee’s dismissal for misconduct could also be for a reason relating to his disability and therefore discriminatory.

The employee, Taylor, was profoundly deaf. He was dismissed for accessing another employee’s email account without authorisation. At the disciplinary hearing he had not been able to fully understand what was happening, and at the appeal hearing Taylor had only been provided with an interpreter for part of the time. The appeal hearing upheld his dismissal and Taylor claimed unfair dismissal and disability discrimination.

The Tribunal held that the employer had failed to make reasonable adjustments but did not consider that Taylor had been dismissed by reason of his disability as his dismissal had been for misconduct.

However, the Employment Appeal Tribunal held that Taylor’s dismissal was partly due to his failure to give an adequate explanation of his conduct which, in turn, was due to the fact Taylor could not fully understand the proceedings. This had not been corrected by the appeal. As such, even though it was a misconduct dismissal, it was, at least in part, for a reason relating to his disability.

TUPE

Under the Transfer of Undertakings (Protection of Employment) Regulations 1981 an employee can object to his contract of employment transferring if he objects to being employed by the transferee (i.e. the buyer of the business). Such an objection may constitute a resignation or may mean the employee remains an employee of the transferor (i.e. the seller).

In the case of Hope v PGS Engineering Ltd, Hope was informed that a transfer was to take place to GMS. Hope declined the offer of employment with GMS and wrote to his employer, PGS, requesting redundancy. PGS accordingly terminated Hope’s employment.

Hope then brought a claim for unfair dismissal against PGS. The Tribunal held that Hope had been dismissed due to the transfer, which was automatically unfair, but, also held that Hope had not properly objected to the transfer. Therefore, Hope’s employment had in fact transferred to GMS (against whom Hope had not brought a claim). He appealed. The Employment Appeal Tribunal held that Hope had objected to the transfer by refusing the post with GMS and indicating his wish to accept redundancy. Therefore, he was able to claim compensation from PGS. In coming to its decision, the Employment Appeal Tribunal noted that there is not a particular method as to how an objection to a transfer should be expressed. On the facts of this case the original Tribunal’s decision was surprising given Hope’s actions. However, if there is any doubt, the employee should be asked to clarify their intentions.

Working Time Opt Out

In last month’s bulletin, we informed you that the right to opt out of the maximum 48 hour week was under threat due to the European Parliament’s vote to abolish the UK’s opt out. This would mean that a maximum 48 hour week would apply to all workers, even if they were willing and able to work more.

However, it appears that the UK has been able to block the proposals for the time being, although it is likely to come back on the European agenda in due course. If the proposal is implemented in the new Directive, the right to opt out would be removed within 3 years of the Directive coming into force. We’ll keep you updated on this matter.

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