Philosophical Belief in Animal Rights
On 10th January, Joe Hashman sought to demonstrate that his beliefs in animal rights constituted a philosophical belief under discrimination legislation. The pre-hearing review is yet to decide the issue, but Mr Hashman claimed that his beliefs affect every aspect of his life on a daily basis and had led to his dismissal by Orchard Park Garden Centre where he worked as a gardener.
His pro-hunting employers apparently discovered he was a leading animal rights welfare activist when covert video footage he had filmed helped convict celebrity chef, Clarissa Dickson Wright of attending an illegal hare coursing event. However, they have denied his beliefs led to his dismissal, claiming that the vegetable patch he gardened to encourage customers to grow their own produce was not finanically viable. They also rejected his assertion that a belief in animal rights constituted a protected philosophical belief, and argued that a lack of genuine commitment in animal rights was evidenced by his decision to continue to work for them despite learning that they were keen supporters of the South and West Wiltshire Hunt. The case continues.
Third Party Discrimination
On 11th January 2011, The Employment Appeals Tribunal held that less favourable treatment of third parties on grounds of their sexual orientation also amounted to less favourable treatment of the claimant on that ground.
In Lisboa v. Realpubs Ltd & Ors, the claimant suffered detriment when he resigned in response to being asked to discriminate against gay customers at the pub where he worked. The pub was under new management which was seeking to change it from a well-known gay pub into a gastropub. This in itself was unobjectionable but the methods of doing so (which included asking the claimant to display a board outside saying this is not a gay pub, asking him to seat customers who did not appear to be gay in prominent positions, and a policy of barring over the top former customers) amounted to less favourable treatment of gay customers. It therefore also amounted to less favourable treatment of the claimant.
This case reinforces the law on third party discrimination. Staff who are asked to discriminate against patients or other third parties can claim to have been treated less favourably themselves.
Payment For Time Spent On-Call
In a judgement that could have implications for NHS trusts, the Employment Appeals Tribunal has ruled that not all hours spent on-call can be taken into account for the purposes of a claim under the National Minimum Wage Act.
The claimaints in South Manchester Abbeyfield Society v Hopkins & Ors were employed as housekeepers at Abbeyfield House sheltered accommodation, and were provided with private accommodation by their employer. They were expected to be on-call overnight in addition to working during the day.
Reversing the decision of the Employment Tribunal, on 30th November 2010 the EAT ruled that the respondents could only claim for such hours that they were awake for the purpose of working. It was decided that the frequency which with they were actually called out to work when on-call was not relevant to the case. Additional claims might have existed - were it not outside the limiation period - in respect of statutory compensation for breach of rest-break or working week regulations.
Penalty for Serial Litigants
In November 2010, The Employment Appeals Tribunal (EAT) dismissed four appeals by alleged serial litigant, John Berry, each heard on the 6th October 2010. Mr Berry is in his 50s and has been described in the press as scouring the internet for job adverts falling foul of age discrimination legislation, for example by requesting a recent school leaver or recent graduate. When he brings discrimination claims employers are apparently likely to settle for a few thousand pounds to avoid litigation.
The EAT did not make a judgement on Mr Berry's motivation for bringing claims but stated that those who seek to exploit discrimination legislation for financial gain are likely to find themselves facing a liability for costs.
Mr Berry has brought actions against at least 60 organisations over three years although he does not apply for the jobs concerned. His claims are frequently struck out by tribunals as misconceived or vexatious but organisations have still been left with significant legal bills.
Age Discrimination and Compulsory Retirement
The Court of Justice of the European Union has given a preliminary ruling concerning the interpretation of Council Directive (EC) 2000/78 (establishing a general framework for equal treatment in employment and occupation) concerning the conditions of a termination of a contract of employment.
In Rosenbladt v Oellerking Gebaudereinigungsges mBh, 12th October 2010, the court held that the contract of employment's compulsory retirement age of 65, whilst on the face of it is discriminatory on grounds of age, is justified so long as the following conditions are met:
- the retirement age set out in the contract has been collectively negotiated with a union;
- the employee will receive a pension as a replacement income;
- compulsory retirement has been in widespread use in the relevant country for a long period of time, without having had any effect on the levels of employment.
This case originated in Germany but the ruling has considerable ramifications for employers looking to justify a compulsory retirement age when the default retirement age is abolished in the UK this time next year.
Providing a Discriminatory Reference
The claimant, a solicitor, brought claims of unfair dismissal and sex discrimination following the termination of her employment with a firm of solicitors. These were eventually settled but when she applied for employment elsewhere she was given a reference from her former employer which referred to her poor relationship with the partners, described her as inflexible and said that she had brought proceedings against the company. As a result, the job offer was changed and then withdrawn.
In Bullimore v Pothecary Witham Weld Solicitors, which will serve as a warning to those writing references for former staff, the claimant bought a case for victimisation against both companies. The tribunal held that the claims for loss of future earnings against the former employer was too remote but the appeals tribunal disagreed. It held that it was clearly foreseeable that the reference would result in the second company behaving in the way it did and that she had suffered a loss as a result of two separate wrongful acts by the two different companies.
Spiritualism - a Protected Belief
Greater Manchester Police Authority v Power has determined that spiritualism, a belief in the spirit or motivating energy that animates living things and survives physical death, amounts to a religion or belief under equality law.
The Police Force employed the claimant as a trainer. He was dismissed after three weeks and given a letter which read, information has come to light regarding previous work with Neighbouring Forces and your current work in the psychic field which is not compatible with employment in Greater Manchester Police.
The tribunal noted The Spiritualist Church was founded in 1853 and that spiritualism was listed as the eighth largest faith group in Britain in the 2001 census and considered that this fulfilled the test for religion or belief. The Employment Appeals Tribunal agreed with this assessment but has not yet ruled on whether the claimant was dismissed for other reasons.
Pregnancy Gossip Defined as Harassment
The claimant in Nixon v Ross Coates Solicitors became pregnant by one of her colleagues, having been seen leaving the Christmas party with another male colleague. Shortly after the Christmas break she announced her pregnancy and within hours rumours began to be spread around the company about the paternity of the baby.
The claimant was upset and embarrassed by the rumours and she lodged a grievance but her request that she be relocated to different office was refused. Following sick leave relating to her pregnancy, she refused to return to work in the same office as the HR manager whom she believed to be the source of the gossip. She was not paid for the month of February and resigned in March, subsequently claiming unfair dismissal, sex discrimination, discrimination on the grounds of pregnancy, and harassment.
The tribunal upheld her claim for constructive dismissal, because the company should have allowed the grievance procedure to take its full course, but dismissed the claims for discrimination and harassment. The tribunal described the claimant as almost exclusively the author of her own misfortune and reduced the compensation by 90%, taking into account the claimant's foolhardy behaviour at the end of the office party and her behaviour following the dismissal.
The Employment Appeals Tribunal disagreed with the reduction in the compensatory award, saying that only behaviour up until the date to the constructive dismissal could be taken into account. It also found that the tribunal was wrong not to conclude that the gossip constituted harassment on the grounds of sex, and that the failure to allow the move amounted to the pregnancy related discrimination.
Age Discrimination in Redundancy
An appeal against a ruling that a claimant had been discriminated against on the grounds of age has been dismissed by the Employment Appeal Tribunal (EAT) on 24th August 2010.
In Canadian Imperial Bank of Commerce v Beck, the claimant, head of marketing in one of the bank's UK divisions, was dismissed, the respondent alleging that his role was redundant. Concurrently with the redundancy, the organisation advanced its proposed recruitment for a different team, including a head of marketing. The final person specification read that they were seeking a younger, entrepreneurial profile (not a headline profile rainmaker) and the tribunal accepted that Mr Back fulfilled all of the requirements for the new role, other than age. The person specification had been given to the employment agency against the advice of the bank's HR team.
Mr Beck claimed race and age discrimination, unfair dismissal and a protective ward for the failure to consult in a collective redundancy situation. Age discrimination, unfair dismissal and a protective ward were upheld, the tribunal ruled that the burden of proof fell on the bank, which unable to prove that age was not the reason Mr Beck was considered unsuitable for the role. Whilst the bank appealed the age claim, Beck cross appealed the calculation of the protective award because it did not consider his discretionary bonus. The EAT dismissed both appeals.
Christian Worker Loses Unfair Dismissal Claim
Duke Amachree, a homelessness officer at Wandsworth Council was dismissed in January 2009 after suggesting a woman with an incurable illness put her faith in God. The woman complained of a 30-minute barrage, in which Mr Amachree, who was dealing with her housing case, outlined his religious beliefs and suggested that she should not bother with doctors.
In Amachree v Wandsworth Borough Council, Mr Amachree claimed unfair dismissal, religious discrimination and breach of contract. An employment tribunal ruled on 11th August 2010 that he had been fairly dismissed following an internal investigation. The council welcomed the outcome, adding that it had been inappropriate and unacceptable that Mr Amachree also revealed details about the client to the media which could have led to her identification.
Employment Status of Dentist
On 12th August 2010, the Employment Appeal Tribunal (EAT) handed down judgement in the case of Community Dental Centres Ltd v Sultan-Darmon, concluding that an unfettered right of substitution in a contract is fatal to worker status.
The claimant, a dentist, brought an unlawful deductions claim against his practice. On appeal the EAT held that his right of substitution meant that he was neither an employee or a worker, because he was not obliged to perform personally any work or services within the meaning of the Employment Rights Act 1996. The claim was therefore dismissed for lack of jurisdiction.
Psychologist Sacked After Affair With Patient
An eminent male psychologist was arrested, on 24th August 2010, and released on bail after a vulnerable female patient revealed that they had had a long-term sexual relationship. Mr Broadbent was dismissed by Camden and Islington NHS Foundation Trust for gross professional misconduct in February 2010, a month after the patient had revealed the relationship to a community psychiatric nurse. On 23rd February, he was suspended from the psychology register by the Health Professional Council, which is investigating the allegations.
Compensation Can Be Discounted to Reflect Liability
The Employment Appeals Tribunal (EAT) ruled on 7th July 2010, that a tribunal can reduce the level of compensation awarded to an employee for psychiatric ill health caused by unlawful discrimination, where it has been demonstrated that the discrimination was only one of a number of causes of the ill health.
Thaine v London School of Economics, concerned a painter and decorator, who was the only female member of staff working within the maintenance department. Miss Thaine made ten claims of sex discrimination against her former employer, two of which were upheld: her colleagues' possession of pornographic materials in the department and the repeated storing of a compulsory signing-in book in the male changing area and subjecting the claimant to sexist comments when she went to retrieve it.
The tribunal found that the unlawful discrimination had been a material and effective cause of the claimant's ill health but that there was evidence of concurrent causes in her personal life, and that the eight non-established claims of sexual harassment had also had an impact. It assessed the contribution of the unlawful discrimination at 40% and reduced the compensation accordingly.
The EAT upheld this decision and also held that Miss Thaine's argument that any pre-existing vulnerability to psychiatric illness should have been ignored by the tribunal was incorrect.
On-Call Allowance During Pregnancy Suspension
An Austrian case, Gassmayr v Bundesministerin fur Wissenschaft und Forschung, July 2010, concerning the Pregnant Workers' Directive, has been tried in the European Court of Justice (ECJ).
Ms Gassmayr worked in the University of Graz Hospital Anesthesia Clinic as a junior doctor and received an hourly allowance in addition to her basic pay for performing on-call duties for emergencies whilst at the hospital. She was put on medical suspension while pregnant, as her health and safety were at risk, and during this time, did not receive the on-call allowance. Her employer, in line with Austrian law, did not believe she was entitled to the payment when she was clearly not on-call.
Ms Gassmayr won her case but the judgement was overturned by the ECJ, which drew a distinction between allowances that related to the actual duties and functions within a role (such as being on-call) and the occupational status of the pregnant employee. Remuneration relating to the former category is dependent on the performance of the duties and functions concerned and is not payable where a pregnant employee is suspended or moved.
Occupational status, however, refers to factors such as seniority, length of service or professional qualifications and allowances due on that basis are still payable while an pregnant employee is suspended for medical reasons. However, the Employment Rights Act (which implemented the Pregnant Workers' Directive in the UK) states that any transfer of a pregnant employee on health and safety grounds must be made on terms that are not less favourable and it remains to be seen how this judgement will apply in such circumstances.
Caps On Redundancy Not Age Discrimination
Hastie v Kraft Foods, concerned whether it would be age discrimination to cap a redundancy payment so that it would not exceed the salary employees would have earned from the date of termination of employment to the date they reached the default retirement age.
Mr Hastie, a 62 year-old employee, had had his redundancy payment capped at £76,560, having been told that was what he would have earned if he had remained employed until the age of 65. The redundancy scheme, described as exceptionally generous provided for 3.5 weeks' actual pay for each year of service before going on to cap the entitlements as described. Without the cap, Mr Hastie would have received about £90,000. His claim of indirect age discrimination succeeded at the employment tribunal but was overturned by the Employment Appeals Tribunal. The cap was said to be justified because it had the legitimate aim of giving appropriate payments to employees to compensate them for future loss of earning and was a proportionate means of achieving that aim.
Discrimination On The Grounds of Perceived Disability
The case of Aitken v Commissioner of Police of the Metropolis, 21st June 2010, has held that the mistaken perception that an employee is suffering from a particular disability does not fall within the definition of direct disability, disability related discrimination or a failure to make reasonable adjustments.
A police officer, who had been diagnosed with obsessive compulsive disorder (OCD), was found to have behaved inappropriately at a work social event, becoming aggressive and threatening to the extent that his colleagues were frightened and decided to end the festivities. He had been drinking and had little recollection of this behaviour. He was put on special leave, given various medical assessments, and returned to work in a back office role in which he was experienced as continuing to have difficulty in controlling his anger. After a period, he was put on sick leave and then retired on medical grounds, with his impairments recorded as OCD and alcohol abuse (binge drinking) and an unpredictable aggressive attitude. The Employment Tribunal dismissed the original claim against his treatment, and the case went to appeal.
The Appellant submitted medical evidence that there was no evidence that his mental health condition made him dangerous to anyone, that he had been perceived as being disabled in a way that he was not, and that he had been discriminated against on the grounds of this mistaken perception. He stated that Attridge Law v Coleman (2008), which defined disability discrimination by association, should be interpreted so as to include discrimination on the grounds of perceived disability. The Employment Appeal Tribunal disagreed, holding that the Respondent had acted on the basis on how the Claimant presented himself, rather than an assumption of mental illness, and that disability discrimination requires the discrimination to have taken place on the grounds of an actual, not merely perceived, disability.
Statutory Grievance Procedure
The Claimants in Reddy v Bedforrd and Luton Partnership NHS Trust, 18th June 2010, were employed by Bedfordshire County Council, then subsequently by the NHS Trust under TUPE transfers. When their union representative sought to raise a collective grievance regarding equal pay at the Trust she sent the grievance by email to Bedfordshire County Council. She sought to copy the NHS Manager of the Trust into the email but did not succeed in sending it to him, although it was forwarded to him by the Council.
The tribunal held that the regulations required the Claimants to send the grievance to the employer and that receiving it indirectly was insufficient. However, this was overturned on appeal, and the judge, stressing the importance of focusing on substance rather than a technicality, concluded that it was sufficient that the employer had received the grievance for the case to proceed.
Trust Fined Over Death of Disabled Man
On 8th June 2010, magistrates imposed a fine of £50,000 on Basildon University Hospital for health and safety lapses that were a significant cause of death of a disabled man. Kyle Flack had cerebral palsy and was deaf, blind and quadriplegic, with severe learning difficulties. He choked to death when he caught his head in the rails around his bed shortly after his round-the-clock personal nursing care was withdrawn.
Basildon and Thurrock University Hospitals NHS Foundation Trust admitted breaching health and safety law by failing to ensure that Mr Flack was not exposed to risk. Mr Flack's head had become trapped in similar circumstances at the hospital a year before, and during the night before he died was found several times lying diagonally in his bed with his head wedged between the rails. Yet, no assessment of his needs was carried out and the Trust was found to have no system in place to assess the risk to patients from bedrails. People with cerebral palsy are known to be at risk of entrapment and the issue was highlighted in Department of Health guidelines published in 2001.
Basildon and Thurrock University Hospitals Trust was also ordered to pay £40,000 in costs.
Doctors to Forcibly Operate on Patient With Learning Difficulties
On 26th May 2010, a high court judge gave doctors permission to forcibly sedate a woman who has a phobia of hospitals, so that she can be taken from her home, against her will, for cancer surgery. The case was brought by an unnamed NHS Trust because the patient has significant learning difficulties and lacks the capacity to make decisions about her own health.
The patient, whose identity was also concealed, was diagnosed with uterine cancer last year which, without surgery, will ultimately spread and become fatal. Attempts to examine the tumour with an MRI scan failed as she has a phobia of hospitals and needles and is claustrophobic, meaning she is unable to lie still for a scan.
The judgement, delivered in open court, was that the operation was in the best interests of the woman concerned. The judge decided that while every effort would be made to avoid forcibly sedating her, a necessary back-up plan would be to allow an ambulance crew to give her a mild sedative mixed with a soft drink so that she can be taken to hospital. She will remain drugged after the operation to make sure that she does not flee the hospital, but the judge has given permission for force to be used as a last resort to return her to her hospital bed if necessary.
The unusual judgement was praised by Mencap, its head of campaigns, David Congdon stated, We believe that people with a learning disability have the same right to treatment or to refuse treatment as anyone else. However, in this case, where the patient clearly lacks the mental capacity to make the decision herself, it is right for the courts to decide based on her best interests. The is an unusual case and we are very encouraged that health professionals have taken the right steps to ensure the patient receives the treatment she needs. All too often people with a learning disability are denied treatment based on assumptions of their quality of life.
Equal Pay - Clerical Workers Can Use Manual Workers as Comparators
An Employment Appeal Tribunal has held that a group of desk-based workers in a local authority could compare their work with a group of male manual workers who were based in different locations for the purpose of an equal pay claim.
In City of Edinburgh v Wilkinson & Ors, the Council argued that male manual workers were not valid comparators because they were not employed at the same establishment (such as a school) or on common terms and conditions. A group of female administrative, technical, professional and clerical female workers had argued that they did work of equal value to refuse collectors, gardeners, gravediggers and roadworkers.
The Appeal Tribunal found that a council is a single establishment for pay purposes and that even if the claimants and comparators were not employed at the same establishment, there were common terms and conditions between them. Establishment should not be determined as merely a geographical location and the Council should be considered the single source of any unequal pay because they were responsible for setting the pay terms of both the claimants and the comparators.
Court Rules on NHS Breast Augmentation for Transgender Patient
In a judicial review, the High Court has ruled that Berkshire West PCT acted rationally in refusing to provide breast enlargement surgery to a transsexual woman, even though there was medical evidence that the surgery would have been beneficial (13 May 2010). The claimant had been diagnosed with gender identity disorder and was given hormone therapy but was disappointed with her subsequent breast development, becoming self-conscious and increasingly focused on the issue. Her request for breast augmentation surgery was refused.
The Strategic Health Authority and PCTs in Berkshire operate a Priorities Committee which had recommended that Gender Reassignment Surgery (GRS) is a Low Priority Treatment due to the limited evidence of clinical effectiveness and is not routinely funded. Hormone treatment and genital assignment surgery were offered but cosmetic surgery and other non-core procedures such as breast surgery, larynx re-shaping, rhinoplasty, hair removal, jaw reduction and waist liposuction should not be considered as a core part of CRS. However, this was subject to the proviso that in exceptional circumstances such procedures would be permitted.
The claimant criticised the use of the term cosmetic surgery and the judge agreed that she was not seeking the treatment in order to look more attractive, instead it was a treatment for her psychological illness. However, he did not accept that the case was exceptional enough to trigger the requirement of surgery.
The judge had to consider whether the treatment would be clinically effective and whether it would be a good use of NHS resources. Evidence submitted by the claimant and defendant did not agree on the clinical effectiveness of the surgery and the judge concluded that the defendant did not act irrationally as the evidence could be said to be uncertain. In deciding whether it was cost-effective and a good use of NHS resources the judge stated that it was natural for trusts to prioritise life-threatening and other grave illnesses.
The judgment also concluded that discrimination on the grounds of transsexual status had not occurred as a natal woman would have been treated in the same way and the Trust did pay due regard to the need to eliminate discrimination in the careful drafting of the policy. It also found that the Human Right, Article 8, the right to family life, does not provide a positive obligation for an authority to provide treatment.
Male Employee Wins Sex Discrimination Case
At a time when many organisations are reducing their head count, redundancy criteria have come under the spotlight. A tribunal has ruled against a law firm for unfairly dismissing a male employee because it feared a discrimination claim if it laid off his pregnant colleague.
John De Belin brought the case against Eversheds saying he had been treated less favourably than an associate in his group who was on maternity leave during the consultation process. The complaint was based on a performance-based scoring exercise, including financial performance, discipline history and absence records, used to determine redundancies. De Belin scored half a point less than his female colleague. She was given the maximum notional score (two points) for her ability to secure client payment during a snapshot period on the grounds that any other decision would have deprived her of the opportunity to show she could have scored the maximum, had she not been on maternity leave.
De Belin has been awarded £123,000 but Eversheds has appealed against the decision. The case highlights the risk of making decisions that are focused on avoiding legal risks, rather than on fairness and business benefits.
Equal Pay - Limitation Period
The Appeal in the long running case, Potter v North Cumbria Acute Hospitals NHS Trust (now Fox & Others v North Cumbria University NHS Trust), was dismissed on 21st April 2010.
At issue, was whether the introduction of Agenda for Change, of itself, triggered the six month limitation period of the Equal Pay Act. The Employment Appeal Tribunal held that it did not on the basis that the cases were standard cases and that Agenda for Change amounted to a variation, rather than a rescission, of the existing contracts.
The Court of Appeal concluded that Agenda for Change did not operate to terminate stable employment relationships already in existence. The claimants were at all material times employed on a permanent basis as full time nurses and the six month limitation therefore did not apply. The Court did not rule on the variation of rescission issue because the issue of stable employment had already decided the outcome.
Climate Change - A Protected Belief
An employee who was preparing to take his employer to an Employment Tribunal for unfair dismissal on the grounds of his environmental beliefs has agreed a settlement of £42,000, plus legal expenses of about £12,000.
Tim Nicholson was made redundant in July 2008 from property company, Grainger PLC. Last November, a judge ruled that his belief in the need to combat climate change was a philosophical belief under the Employment Equality (Religion or Belief) Regulations 2003 and that the case could proceed. Mr Nicholson had alleged that his redundancy was a direct result of this philosophical belief, but following the settlement in April 2010, Grainger Ltd still asserts that his redundancy was due to operational needs.
Christian Counsellor Was Fairly Dismissed for Not Working With Gay Couples
A Christian counsellor who was dismissed after he refused to work with gay couples was refused permission to appeal on 15th April 2010. Gary McFarlane was dismissed from Relate Avon when he would not give an unequivocal commitment to counsel same sex couples. His claim for direct and indirect religious discrimination was dismissed and his appeal was refused.
The Court of Appeal held that the law's protection of the right to hold and express a belief and the law's protection of that belief's substance or content are distinct and only the former is protected. The tribunal had correctly distinguished between the conduct that led to the dismissal and the religious belief of which the conduct was an outward sign.
Nurse Loses Case to Wear Christian Cross
A Tribunal ruled on 5th April 2010 that Royal Devon and Exeter NHS Trust Hospital had acted reasonably in requiring nurse, Shirley Chaplin, to remove her Christian cross while at work. Ms Chaplin, who wore the cross on a necklace, was required to remove it for health and safety reasons in accordance with the Trust's dress code.
Time Limits For Appealing
Parties have 42 days from when a tribunal judgement is posted in which to lodge an appeal. The Employment Appeal Tribunal has handed down its decision in Tasneem v Dudley Hospitals, March 2010, ruling that if an appellant shows that a decision was posted later than the date recorded by the tribunal service, the time limit will run from the later date.
This judgement suggests that organisations would be advised to keep the envelopes in which tribunal decisions arrive as proof of the date of sending.
When Reasonable Adjustments Don't Overcome Disadvantage
In Secretary of State for Work and Pensions & Ors v Wilson, March 2010, the claimant had agoraphobia and experienced anxiety attacks in new situations which made it difficult for her to work with the public. When Jobcentre Plus planned to close the office 100 yards from her home, in which she worked in a back-office role, she requested home working.
Jobcentre Plus accepted that her condition amounted to a disability, and having considered a number of ways in which her request could be facilitated, it advised her that there were no such vacancies. Ms Wilson continued to work until the office closure then went on sick leave, providing medical certificates stating that she was unable to travel to work. It was decided to allow her to take six months fully paid special leave whilst her employer investigated ways to help her to return to work, but she rejected other options she was given and was dismissed for lack of capability during this leave.
A tribunal upheld her disability discrimination claim but this was overturned on appeal. The appeal tribunal held that Ms Wilson's refusal to work other than from home made any reasonable adjustment impractical. The tribunal should have considered whether the adjustment overcame the disadvantage as well as whether it was reasonably practical to make it.
Motivation a Factor in Two Race Discrimination Cases
In The Commissioner of Police of the Metropolis v Osinaike, March 2010, a tribunal ruled that when harassment on the grounds of race is claimed it has to be established that the unreasonable conduct concerned was racially motivated. The tribunal held that a senior manager's remark was racial harassment partly because the manager was of a different race to that of the claimant. However, this was overturned by the appeal tribunal which maintained that the remark (that Ms Osinaike should see a psychiatrist) may have been unfair, unreasonable and offensive but Ms Osinaike had not established it was made on the grounds of race.
In Taylor v XLN Telecom, March 2010, a tribunal had established that discriminatory treatment was racially motivated but held that the claimant was not entitled to compensation because he had not known that the treatment - a decision to dismiss him - was made on the grounds of race. The Employment Appeal Tribunal disagreed, holding that a claimant is entitled to recover for any injury to feelings or personal injury attributable to the discriminatory act without having to prove that the injury resulted from actual knowledge of the discrimination.
Dress Codes and the Christian Cross
On 12th February 2010, the Court of Appeal ruled in Eweida v British Airways that by adopting a staff dress code which forbade the wearing of a visible neck adornment, British Airways (BA) did not indirectly discriminate on the grounds of religious belief.
Mrs Eweida was prevented from wearing a small, visible cross with her uniform, but the Appeal Court rejected the suggestion that one individual person could be the subject of indirect discrimination. An identifiable section of a workforce, quite possibly a small one, must be shown to be disadvantaged in order for indirect discrimination to have taken place. The court also found that BA's staff dress code and the ban on a visible neck adornment was a proportionate means of achieving a legitimate aim.
BA's uniform policy allowed only mandatory religious items that could not be covered up by the uniform, and that management had approved. However, following a review of the policy, Mrs Ewedia is now permitted to wear her cross.
Dress codes which forbid the wearing of Christian crosses have also been a contentious issue within the NHS. Royal Devon and Exeter NHS Foundation Trust re-deployed a nurse last year to duties which do not involve patient care, because her cross was not compliant with the dress code and she did not wish to remove it. The Trust does permit the wearing of a cross pinned inside a uniform lapel or pocket but maintains that necklaces pose a health and safety risk. The Trusts' position was that the visible wearing of the cross was not an essential requirement of the Christian faith.
Gloucestershire Hospitals NHS Trust took a similar stance in June 2009, when a nurse resigned because she was unable to accept the policy which prohibited her from waring a Christian cross as a neck pendant.
Bullied NHS Manager Awarded £150,000
Swansea County Court has found that an Information Manager developed mental health problems that left her unable to return to work after she was bullied and harassed over a three-year period. Unison supported Nanette Bowen, a former nurse who had worked for the Prince Philip Hospital in Wales for 28 years, in a claim against what is now Hywel Dda NHS Trust (following two mergers).
Ms Bowen suffered a nervous breakdown after being bullied by a maanger who prevented her from disclosing information without written consent, requested that she fill in a daily form describing her activities and had her responsibility to hire staff removed. He was also aggressive towards her when challenged, made sexual innuendos and banned her from attending important meetings vital to her job.
NHS Manager wins Race Discrimination Case
A former Assistant Director of Nursing, who was told that she was "the wrong colour and the wrong culture" during an appraisal, has been awarded £115,000 in compensation by an employment tribunal. Dr Sarina Saiger, Bradford-born and of Indian descent, had enquired about promotion at the North Cumbria University Hospitals Trust. She was dismissed after making a complaint about the response that she received.
The Trust has since apologised to Dr Saiger for the distress caused by the case, saying it had learned many lessons and had embedded the learning.
Volunteers Not Covered by Discrimination Legislation
It has been established that volunteers are not protected by the Disability Discrimination Act (DDA) or the EU Framework Directive by X v Mid-Sussex CAB in November 2009. The Claimant was a volunteer part-time advisor at the Citizens' Advice Bureau. She had no contract and left in circumstances which she alleged amounted to discrimination on grounds of her disability. She argued that she was protected by the EU Directive, and that the DDA should be read down to provide that protection. The Employment Appeal Tribunal held held that employment requres a material contract between the parties, that there was nothing to suggest that occupation meant unpaid employment and that the Directive offered protection only in relation to access to occupation.
Retirement Can Be Forced at Age 65
In September 2009, the High Court handed down its decision on the Heyday appeal (Hayday v Secretary of State for Trade and Industry), ruling that it is legal for UK law to allow employers to force employees to retire at age 65. Age UK had challenged the default retirement age of 65 in the Employment Equality (Age) Regulations 2006, agruing that there was no clear and consistent policy pursued by government. The Equality and Human Rights Commission submitted that 70 was the earliest appropriate default retirement age. The Government succeeded in persuading the High Court to uphold the status quo pending a review of the situation in 2011.
Paramedic Suspended for Offensive Comments
In September 2009, a Health Professions Council hearing was told that a paramedic had joked that Christmas was to be replaced by "lesbian single-mother Muslim day". Karl Touhey allegedly made offensive comments about Muslims, obese people, homosexuals and women he found unattractive and expressed admiration for the Klu-Klux-Klan while working for the South West Ambulance NHS Trust. Mr Touhey has since left the Trust to work for a private medical company.
The hearing found the allergations to be well-founded, that his fitness to practice was impaired but that the misconduct was capable of remedy. Mr Touhey's membership of the HPC has been suspended.
Discrimination on the Grounds of Belief in Climate Change
In an interesting case that clarifies the scope of "belief" under the Employment Equality (religion or Belief) Regulations, environmentalism has been found to fit the definition. In Nicholson v Grainger, 2009, a pre-hearing review has held that "settled views" about carbon emissions and climate change are capable of amounting to a belief under the regulations.
Case law has established that such a belief must have sufficient cogency, seriousness, cohesion and importance and [is] worthy of respect in a democratic society. The President of the EAT has previously explained that, to constitute a belief there must be a religious or philosophical viewpoint in which one actually believes, it is not enough to have an opinion based on some real or perceived logic or based on information or lack of information available.
Tim Nicholson is claiming that he was not made redundant from his role as Head of Sustainability at Grainger Ltd, a property company, but was dismissed because the company's directors disapproved of his belief. He told the tribunal, I believe we must urgently cut carbon emissions to avoid catastrophic climate change. It is not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and my fears.
The Judge supported this view, saying that Mr Nicholson's belief goes beyond a mere opinion, such as might be held on some aspect of climate change such as whether it is environmentally desirable to travel by air. However, he suggested that the facts in the case were unusual and unlikely to be repeated often. It remains to be seen whether this judgement will be upheld by the full hearing.
Nightwork is "Normal Activity" Under the DDA
Under disability discrimination legislation, an impairment must have a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities to be defined as a disability. In Dumfries and Galloway Constabulary v Adams, 2009, an Appeal Tribunal has found that night work is a "normal activity" under this definition because working at night is sufficiently common. This is a case that has implications for disabled night workers within NHS Trusts.
Guidance from the Secretary of State gives examples of what might be normal day-to-day activities:
In general, day-to-day activities are things people do on a regular daily basis, and examples included shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities.
The guidances goes on to state that "normal" activities must be normal for a large group of people but not necessarily the majority. In terms of employment:
Normal day-to-day activities do not include work of any particular form because no particular form of work is 'normal' for most people. In any individual case, the activities carried out might be highly specialised.
In addition, a Directive by the European Court of Justice, in considering when measures may be needed to adapt the workplace to the disability, states,
Directive 2000/78 aims to combat certain types of discrimination as regards employment and occupation. In that context, the concept of 'disability' must be understood as referring to a limitation which[...] hinders the participation of the person concerned in professional life.
Mr Adams, a police officer, has M.E. and his symptoms were most severe when he worked a shift from 2am to 4pm, and the case therefore centered on the interaction between his disability and his conditions of work. While working on the shift concerned, he walked at a slow pace, needed assistance or a hand rail to climb stairs, required to be driven home at times and was sometimes bedridden for the following day. As a result, Mr Adams struggled to complete these shifts and was sometimes unable to attend work, although he had no such difficulties during a period when he was not required to work at nights.
The Appeal Tribunal upheld the claim for disability discrimination that followed Mr Adams' dismissal, stating:
Night shift working is common the United Kingdom. Examples of it were referred to in the course of the hearing which included offshore workers, those employed in healthcare and those who work in the emergency services. We can think of many others whether hotel workers, workers in certain factories, haulage drivers and so on. Whilst they do not constitute the majority, we are readily satisfied that there are enough people who work on nightshifts for working at 2am to 4pm to be a normal day-to-day activity.
Landmark Equal Pay Ruling
A landmark ruling was made in April 2009 by the Court of Appeal in the equal pay case of Joyce Slack and others v Cumbria County Council. The Court ruled that a variation in the terms of an employment contract between an employer and employee in a stable employment relationship did not terminate the pre-existing contract.
Joyce Slack, Rosalyn Elliot and Karen Athersmith who worked as a cook, a day care assistant and a home carer respectively, were previously bound by a six month time limit for bringing claims for periods of employment worked under previous contracts. In respect of the first two claimants, previous periods of employment can now form part of their claim. However, the third claimant was deemed to have entered into a new contract when her status had changed in 2001 from a relief carer to a permanent employee of the council.
This case will set a precedent that could open the door to further equal pay claims in the NHS.
Agenda for Change not Discriminatory
An Employment Tribunal has found that Agenda for Change does not discriminate on the grounds of sex. A decision on Hartley v Northumbria Healthcare NHS Trust was released in April 2009, and describes Agenda for Change as a valid job evaluation study under the Equal Pay Act 1970. The tribunal upheld the Trust's defenses which included the national arrangements for pay protection, recruitment and retention.
Large Payout in Age Discrimination Case
In Sturdy v Leeds Teaching Hospitals NHS Trust, 2009, an employment tribunal awarded Linda Sturdy £39,000 in damages as a result of her claim of age discrimination.
Mrs Sturdy, was turned down for a job running breast screening services at the age of 56, because she was nearing retirement age. The tribunal was told that the head of the clinical management team for the hospital's radiology department had indicated to Mrs Sturdy that he saw her in the role and would recommend her to the interview panel. However, he later mentioned that he hadn't realised she was "so old". Subsequently, a younger and less experienced applicant was given the role and Mrs Sturdy was offered a more junior scanning role.
No Entitlement to Free Treatment for Failed Asylum Seekers
In the case of R (on the application of YA) v Secretary of State for Health, 2009, a Palestinian man, known as 'YA' was a refused asylum seeker who was unable to return to the West Bank because of Israeli travel restrictions. He has a chronic liver disease and was refused NHS treatment by West Middlesex University Hospital because of his status and inability to pay for treatment.
The Court of Appeal held that the purpose of the NHS Act, 2006, was to provide a service for the people of England and that did not include those who ought not to be in England, such as failed asylum seekers. However, the judges also ruled that hospitals have the discretion to provide free treatment to such individuals if they cannot afford to pay for it.
Guidance given by the Secretary of State for Health on the implementation of the NHS (Charges for Overseas Visitors) Regulations 1989, advising NHS trusts to charge failed asylum seekers for NHS services, was declared unlawful in so far as it failed to make clear how the discretion to withhold or allow treatment should apply in certain circumstances - particulary where the treatment was urgent and the failed asylum seeker was unable to pay for the treatment - should be exercised.
The Health Secretary, Alan Johnson, has agreed to ensure that the guidance is amended.
NHS Prohibited From Making 'Direct payments
In The Queen (on the application of Steven Harrison) v The Secretary of State for Health and The Queen (on the application of Valerie Garnham) v The Secretary of State for Health, 2009, two disabled people took a case to the High Court to claim that the DoH had acted unlawfully and breached their human rights.
Steven Harrison and Valerie Garnham argued that they should be provided with direct payments by the NHS to allow them to employ their own care staff. Such direct payments are used by local authorities to enable disabled people to live independently and manage their own care. However, once care is designated as a health need, if an impairment worsens for example, it becomes the responsibility of the NHS.
The claimants showed that engaging carers directly enables them to to form long-term relationships with carers who become very familiar with multifarious health problems, and that this enables them to live as full a life as possible whilst preserving their dignity and privacy. The GPs of both the claimants said they were "extremely concerned" about the impact on the health of their patients should direct payments be withdrawn.
The High Court ruled that the NHS has no power, under the NHS Act 2006, to make direct payments and that the payments should therefore be withdrawn.
There is a Health Bill presently before Parliament which includes provisions which would empower (but not oblige) the Secretary of State to make direct payments to patients for physiotherapy, home nursing and other healthcare services.
Lesbians' Right to Fertility Treatment
The BBC have reported on a case which illustrates the need for Equality Impact Assessments to go beyond the legal requirements for race, gender and disability to highlight any differential impact of policies. A lesbian couple who had been denied fertility treatment from their local health authority, took their case to the Court of Session in Edinburgh (26 February 2009). A judicial review of the decision was due to take place at a later date, but the health board have now decided to offer the couple treatment at an assisted conception unit.
NHS Greater Glasgow and Clyde initially refused to offer the women help at a specialised conception service as they were not classified as an infertile couple. A spokesperson from the health authority said "treatment acceptance criteria" had at first been applied to the couple, as they would have been to a hetrosexual couple, and they had been found not to have met the criteria because they are incapable of having a biological child together.
The spokesperson added, The board has, however, reconsidered its position in light of other regulations, including the Human Fertilisation & Embryology Act 2008 and Equality Act (Sexual Orientation) regulations 2007, and has now decided to offer treatment to this couple.
Disability Discrimination Exemption
In the case of Grey v Eastern Coastal and Kent PCT, in January 2009, an Employment Appeal Tribunal defined the exemption in the Disability Discrimination Act which applies to recruitment.
The Act requires employers and potential employers to make reasonable adjustments to the job application and selection process to take account of disability. However, they can be exempt from making such adjustments if they do not know that an applicant is disabled. The Employment Appeal Tribunal has said that in order for this exemption to be applicable, all four of the requirements below must hold true.
They are that the employer:
- does not know that the disabled person has a disability;
- does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;
- could not reasonably be expected to know that the disabled person has a disability; and
- could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.
Note that the Code of Practice, which accompanies the Act, states that the employer must do all it can reasonably be expected to do to find out whether the applicant is at a substantial disadvantage.
Mrs Jocelyn Grey, who has dyslexia, applied for a nursing role at the Trust online. As part of her application she selected the description "learning difficulty/disability" from a drop-down list and applied for a guaranteed interview under the Trust's 'Positive About Disability' Scheme. However, she did not respond when asked by the Trust if she required any special arrangements for the interview and the selection panel was unaware of her disability. During the interview, she was required to give a presentation from a laptop which she claims placed her at a substantial disadvantage.
The Employment Tribunal found that Mrs Grey had not be directly discriminated against but that the Trust breached its duty to make reasonable adjustments. The Appeal, brought by the Trust, has now referred the case back to the Employment Tribunal on the grounds that the ET did not consider all four of the demands of the legal exception above.
Discrimination By Association
In The European Court of Justice (ECJ) Case, Coleman v Attridge Law, 2008, the employment practices examined were those of a law firm, not a healthcare provider, but the outcome has far-reaching implications for the NHS.
The claimant, Mrs Sharon Coleman, was a legal secretary for a firm of solicitors and the main carer of her disabled son. When she asked for time off to care for him, her employer accused her of being "lazy" and trying to manipulate her working conditions. She raised the claim under the Disability Discrimination Act 1995, arguing that she had suffered disability discrimination by association because she was treated less favourably than employees with non-disabled children. The Act does not appear to include such discrimination and it had previously been supposed that only a disabled person could bring a claim of disability discrimination.
However, the Directive from the European Union, which ordered the UK legislation, protects individuals from discrimination "on the grounds of disability" and this case was therefore referred from a UK Employment Tribunal to the European Court for clarification.
The ECJ ruled in Mrs Coleman's favour, confirming that discrimination by association is prohibited by the Directive. The case will now be heard in a UK Employment Tribunal to establish whether the Disability Discrimination Act is open to the same interpretation. If it is not, the Act will need to be amended to include discrimination by association. Similar pieces of legislation will also need to be amended, for example to prevent discrimination by association on the grounds of sexual orientation.
The NHS will not be expected to wait for these amendments. The ECJ judgment has "direct effect" on national governments and governmental bodies and organisations. From August 2008, all NHS Trusts have had a duty to ensure there is no discrimination by association in their organisation.
Sexual Discrimination Against Male Nurses
The Sex Discrimination Act states that employers cannot justify a case where a woman is treated differently from a man in the same circumstances, known legally as direct discrimination. The 'no justification' clause applies even when it might seem unreasonable.
This was demonstrated in Moyhing v Barts and London NHS Trusts, 2006. Moyhing was a male nurse undertaking clinical placements as part of his degree. The Trusts had a policy whereby male (but not female) nurses had to be chaperoned during certain "intimate medical procedures" on women, such as performing ECGs and doing catheterisations. Mr Moyhing found this unacceptable, he said his training was undermined because he was only allowed to perform many procedures on male patients while female colleagues were taught how to treat both sexes. He argued that this created a culture whereby male nurses were treated as second class citizens and it made him feel like a sexual predator.
The tribunal decided against Mr Moyhing. It said that there was no like-for-like comparison with ECGs, which require electrodes to be attached to the chest, because touching a woman's chest is different to touching a man's. It did agree that there had been differential treatment, but agreed with the Trust that this was to ensure the safety and welfare of both staff and patients.
With regard to catheterisation, female nurses were not allowed to carry them out until post-graduates, so Mr Moyhing, as an undergraduate had not, at this stage, suffered a detriment.
Mr Moyhing took the case to appeal, which found in his favour. It said that it understood the Trust's position but the law states that there can be no justification for direct discrimination so there is no legal basis for treating male and female nurses differently. The Trusts were asked to decided whether all nurses should require a chaperon for intimate medical procedures or whether the requirement should be dropped entirely.
Mr Moyhing, who now works in financial services, waived the £750 compensation, saying he only wanted to establish a principle. He said he hoped the ruling would encourage men to become or remain nurses.
Doctor Disciplined for Writing Homophobic Material
Dr Muhammad Siddiq, a GP and President of the Islamic Medical Association, made homophobic comments in a letter to Pulse, the Medical Magazine. This case concerns paragraph 33 of Good Medical Practice which states:
"You must not express to your patients your personal beliefs, including political, religious or moral beliefs, in ways that exploit their vulnerability or that are likely to cause distress."
and paragraph 57:
"you must make sure that your conduct at all times justifies your patient's trust in you and the public's trust in the profession."
The case was heard by the General Medical Council, in October and November 2008.
The letter by Dr Siddiq, which was published in Pulse, described gay people as spreading disease and claimed, "They need neither sympathy nor help, what they need is the stick of the law to put them on the right path and mend their ways and behaviour." Dr Siddiq also referred to a transgender patient as "twisted". The letter resulted in a considerable number of complaints which were followed by an unreserved apology by Dr Siddiq for any hurt or offence.
During the hearing, Dr Siddiq's defence that the original letter was a hoax written by his son was rejected by the Fitness to Practice Panel. Instead, the panel found that his actions were inappropriate, not in the best interests of his patients, liable to undermine public confidence in the medical profession and liable to bring the profession into disrepute.
It was stressed that as a resident of the UK, Dr Siddiq is entitled to hold whatever views he chooses, but that these must not impact on his medical practice. Whilst there was no evidence to suggest that Dr Siddiq had discriminated against his own patients, and in face was described as a well-respected GP, there was a real risk that his patients may have assumed that he would discriminate against them. This could have dissuaded his homosexual or transgender patients seeking his assistance.
In addition, as the letter was sent in Dr Siddiq's role as President of the Islamic Medical Association, this action, "may have had wider implications for homosexual and transgender patients of any Muslim doctor. Dr Siddiq should have been aware that his views were likely to have been reflected by the national press and that patients could have concluded that he was speaking on behalf of all Muslim doctors, risking undermining confidence in the medical profession."
The General Medical Council determined that Dr Siddiq's registration be suspended for the maximum period available of 12 months, after which the case will be reviewed. This sanction also reflects its findings that he practiced a minor surgical procedure after an assessment resulted in him being asked to suspend the practice, pending discussion of some recommendations.
Race Claim Survives Death
A Court of Appeal has ruled that a race discrimination claim can survive the death of the applicant. In Harris as a personal representative of Andrews (deceased) v Lewisham and Guys Mental Health Trust in 2000, the Employment Appeal Tribunal ruling had been that the case could not continue, but this was overturned by the Court of Appeal.
It was decided that it was irrelevant whether the case was of a purely personal nature and equally irrelevant that the discrimination statutes make no provision for the continuation of a claim after the death of the Applicant.
Nurse Told Not To Care For White Baby
In a case that exposes the dangers of colluding with the racist wishes of patients, or those with parental responsibility for paediatric patients, Mrs Rosie Purves, a black nurse of Afro-Caribbean origin, was asked not to care for a white baby on her ward
In Purves v Southampton University Hospitals NHS Trust, 2004, the baby concerned, known as LS, had been admitted to the paediatric ward of the hospital - where Mrs Purves had worked for almost 30 years - with cystic fibrosis. The mother of the baby complained to staff and asked for LS to be removed from Mrs Purves care. She told a doctor that she was a racist and she did not wish a black person, Mrs Purves, in particular, to care for her child. Mrs Purves was then banned from taking care of the baby. She had previously been prevented from caring for another white child on the same grounds.
The tribunal chairman commented that, "the repondent was effectively silent and complicit in the racist demands being made by Mrs LS's mother." He found that Mrs Purves had been directly discriminated against on the grounds of race.
Mrs Purves now works part-time at the hospital and was awarded £20,000 in compensation.
A spokesperson for Southampton University Hospitals Trust apologised to Mrs Purves and described her as a superb nurse. The Trust has admitted that it made a mistake in the handling of the case and said that in future treatment would be refused in such cases.
Disability Discrimination - Reasonable Adjustments
This next case demonstrates the need for Trusts to assess whether a reasonable adjustment can be made for a disabled person, even if no such adjustment can subsequently be found during the assessment. It also underlines the need for training to embed policy. Organisations have a legal obligation to make reasonable adjustments to accommodate disabled workers.
In the case, Mid Staffordshire General Hospitals NHS Trust v Cambridge, 2003, Mrs Cambridge was signed off sick for five months and then certified fit to return for two hours per day. After four months, the occupational health doctor advised that the number of hours could be increased to three but should be decreased again if Mrs Cambridge had difficulty coping. He said a full recovery could take a further 12 months.
Mrs Cambridge claimed that she had been unfairly dismissed and unlawfully discriminated against on the grounds of disability.
The Employment Tribunal found in her favour on those counts and this was upheld by the Court of Appeal. It was found that although the Trust's guidance notes required managers to "consider making reasonable adjustments to working arrangements to enable employees with a health problem or disability to remain in/return to work", no thought was given to the practical implementation of that guidance.
The Court of Appeal judge stressed the importance of employers conducting a full assessment into what can be done to reduce a disabled person's disadvantage in the workplace and said employers are at risk of breaching the law if they do not do so. He suggested that such an assessment would include: Mrs Cambridge's condition and prognosis; the effect of her disability on her; the effect of her disability on her ability to perform the duties of her post; the effect of the physical features of the workplace on her and her ability to perform her duties; and the steps which might be taken to reduce or remove the disadvantages to which she was subjected.
It is worth noting that reasonable adjustments can refer to working practices and arrangements in addition to physical features.
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