Employment Law Bulletin

CASES

No dismissal of employee warned that he 'could' be dismissed

In the case of Mitie Security (London) Ltd v Ibrahim 2010 UKEAT 0067_10_0605 (6 May 2010) the Employment Appeal Tribunal set aside the Employment Judge's finding that the Claimant was dismissed and instead made a declaration that there was no actual dismissal.

Mr Ibrahim worked as a Security Supervisor for Mitie on its South Quay Plaza III contract. He was removed from site on 19 September 2008. A confirmatory letter stated Mr Ibrahim's removal was at the client's request and advised him that the following 4 weeks would be a consultation period during which Mitie would attempt to find Mr Ibrahim an alternative position. Mitie informed Mr Ibrahim that if alternative employment was not found within the 4 weeks then it could result in notice to terminate his employment being issued.

No alternative employment was found for Mr Ibrahim during the 4 week period. Mr Ibrahim raised a grievance on 29 September and subsequently filed complaints of unfair dismissal and race discrimination on 6 November.

The Employment Tribunal found that Mr Ibrahim was dismissed at the end of the 4 week consultation period (23 October 2008) by virtue of s.95(1)(a) of the Employment Rights Act 1996 on the basis that he had been removed from site, his pay was stopped and Mitie had failed to find him alternative employment.

On appeal His Honour Judge Peter Clark concluded that Mitie's letter to Mr Ibrahim was simply a warning that dismissal could result. As there was only a possibility that Mr Ibrahim might be dismissed on or after 23 October 2008 this date could not be taken as the effective date of termination and therefore there could have been no dismissal. HHJ Clark agreed with Mitie's arguments that a contract of employment is only terminated where the end date is specified or can be positively ascertained. In this case it could not.

It was also agreed that Mr Ibrahim's removal from site could not be construed as a summary dismissal as further meetings between the parties took place. The stopping of pay could also not be construed in this way as it was a common practice with other employers in the security industry that, "no work means no pay".

HHJ Clark did note his concerns that Mr Ibrahim, by his grievance and threatening of Employment Tribunal proceedings, was arguably alleging a repudiatory breach of contract by Mitie as removal from site, no pay and alleged harassment and discrimination are capable of amounting to a breach of the implied term of mutual trust and confidence. However, as no such argument had been raised by Mr Ibrahim it was not something for him to consider.

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Homer v Chief Constable of West Yorkshire Police [2010] EWCA Civ 419

The Court of Appeal has upheld an EAT decision that an Employment Tribunal had erred in law in finding that the appellant had been discriminated against on the grounds of his age.

Mr Homer had worked as a police officer for 30 years having obtained the rank of detective inspector by the time of his retirement. In October 1995 he took up employment with the Police National Legal Database as a legal adviser. He was appointed to this position on account of his "exceptional experience/skills in criminal law, combined with a lesser qualification in law", which was one of three accepted requirements for the position. The other two requirements were that the post holder must have either a law degree or the equivalent of a law degree. Mr Homer did not meet either of those requirements.

Around 2004 amendments to the job profile emphasised that a degree in law was "essential" for the post and a new career grading structure was established. This included an increase in pay levels.

The new structure consisted of three thresholds. Mr Homer met the requirements of the first two thresholds and was re-graded accordingly, however, he failed the third threshold despite meeting all but one of the nine criteria – the need to have a law degree. He was therefore refused entry into the highest pay grade.

Aged 61 at this time Mr Homer considered that if he were to commence a part time law degree he would not qualify until after his anticipated retirement age of 65.

Mr Homer complained to the Employment Tribunal that he had been treated less favourably on account of his age given that he was unable to obtain a law degree before he was likely to retire, unlike younger employees. The Tribunal found that there had been indirect discrimination towards those who did not have a law degree and who fell within the 60-65 age bracket.

On appeal the EAT held there was no disadvantage to Mr Homer, or those in the same age bracket, on the basis that all persons without a degree were treated in the same way and the barrier imposed by the need for a degree was not affected by age. Further, that the financial disadvantage was the inevitable consequence of age and not of age discrimination.

The Court of Appeal agreed with the EAT's finding and held that whatever Mr Homer's age had been on the introduction of the degree provision he would have failed to achieve the status of the third threshold unless and until he obtained the requisite degree. The disadvantage of the law degree provision in the form of loss of status and the inability to obtain increased remuneration, relied on by Mr Homer, was not a particular disadvantage resulting from the application of the law degree provision to the age of persons in Mr Homer's age group. The particular disadvantage resulted from the stopping of work before being able to obtain the requisite qualification.

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Damages for Breach of Contract

The Court of Appeal has confirmed that a doctor may be entitled to recover damages at large following his dismissal for misconduct under disciplinary proceedings that were conducted in breach of a contractual disciplinary procedure (Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2010] EWCA Civ 571).

Mr Edwards was a consultant trauma and orthopaedic surgeon. Under his contract of employment either party could terminate on 3 months' notice to the other. The contract also provided that matters of personal conduct would be dealt with under the hospital's general procedures and matters of professional conduct would be subject to a procedure agreed by the Local Negotiating Committee in respect of medical practitioners.

In 2006 Mr Edwards was summarily dismissed for gross professional and personal misconduct following a disciplinary hearing. His subsequent claim in the District Registry was based on the contention that the Trust failed to follow the contractual disciplinary procedure correctly in that it failed to 1) appoint a person with legal qualifications to chair the hearing; 2) appoint a clinician of the same medical discipline to the panel; 3) allow him to have legal representation at the hearing. He alleged that, had the correct procedure been followed, the outcome would have been that no misconduct had occurred.

Since his dismissal Mr Edwards has been able to work as a locum with another NHS Trust but has been unable to obtain a permanent consultant post. He believes that he will be unable to do so in the future on account of the findings against him.

The damages claimed for breach of contract, therefore, included future loss of earnings exceeding £3.8m on the basis that if Mr Edwards had not been wrongfully dismissed he would have remained employed by the Trust until 2022 when he reached the age of 65, and future loss of pension.

The Trust's view was that the most he could be entitled to recover was limited to loss of earnings during the 3 month contractual notice period. In the first instance District Judge Jones agreed with the Trust and made a declaration to that effect.

On appeal it was held that, if the claim succeeded, in addition to loss of earnings during the notice period, Mr Edwards could recover loss of earnings for the period during which he would have remained employed while a disciplinary procedure in line with the terms of his contract was undertaken.

Such finding was rejected recently by the Court of Appeal where it was held that there was no doubt that the obligation relied on by Mr Edwards was an express term of the contract and as such, the Trust's alleged breach gave rise to the normal contractual remedies. The appeal was therefore allowed although a further appeal is anticipated.

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McFarlane v Relate Avon Limited [2010] EWCA Civ B1

The Court of Appeal has refused Mr McFarlane's appeal against the Employment Appeal Tribunal's decision that his dismissal for refusing to counsel homosexuals about sexual matters was not direct or indirect religious discrimination.

The case

Mr McFarlane was a counsellor for Relate Avon Limited, part of the Relate federation ("Relate"), providing services in confidential sex therapy and relationship counselling.

Relate is a member of the British Association for Sexual & Relationship Therapy ("BASRT"). BASRT's code of ethics includes the requirement for therapists to "avoid discrimination…on grounds of…sexual orientation". Relate's own equal opportunities policy also requires it to ensure "that no person …receives less favourable treatment on the basis of characteristics, such as…sexual orientation".

Mr McFarlane was employed as a paid counsellor, a requirement of which involved expressly signing up to Relate's equal opportunities policy. He was a Christian who believed that sexual activity between same sex couples was sinful and that he should not endorse such activity. As a result he sought exemption from the obligation to work with same sex couples in cases where issues of psycho-sexual therapy were involved. He was eventually dismissed following his refusal to continue to work with same sex couples.

He claimed among other things that he had suffered direct and indirect discrimination contrary to reg 3(1) of the Employment Equality (Religion or Belief) Regulations 2003. The Employment Tribunal dismissed his claim for direct discrimination on the basis that it was not a case of an employer objecting to a religious belief.

In considering Mr McFarlane's indirect discrimination claim, the Employment Tribunal referred to the case of London Borough of Islington v Ladele. This was the case of a registrar who refused to conduct civil partnership ceremonies. The Court of Appeal held that it had been proportionate for Islington Council to require all registrars to perform civil partnerships for homosexual couples in order to comply with its legitimate aim of providing the service on a non-discriminatory basis.

The Employment Tribunal in the McFarlane case felt there was no need to depart from this decision. It concluded that "the provision of a full range of counselling services to all sections of the community regardless of their sexual orientation" was also a legitimate aim which Relate, as an employer, was entitled to pursue.

McFarlane did not dispute this conclusion but argued that Relate's absolute rule was disproportionate and there was no good reason why he should not be allowed to counsel heterosexuals only. He sought permission to appeal at the Employment Appeal Tribunal ("EAT").

The EAT refused after concluding that the reasoning behind the Ladele judgment applied directly to Mr McFarlane's case.

Court of Appeal

Upon the EAT's dismissal of his application to appeal, Mr McFarlane sought permission from the Court of Appeal. He argued that the EAT was not bound to follow the decision in the case of Ladele.

The Court of Appeal refused to grant him permission to appeal. Lord Justice Laws heard the matter alone. He came to the conclusion that the allowance of Mr McFarlane's appeal would undermine Relate's "proper and legitimate policy".

Mr McFarlane's application was supported by a witness statement of Lord Carey of Cofton, a former Archbishop of Canterbury. Lord Carey disputed that the manifestation of the Christian faith in relation to same sex unions was discriminatory and contrary to the legitimate objectives of a public body.

He argued that there was a lack of sensitivity to religious belief and that the case should heard before the Lord Chief Justice and a specially constituted Court of Appeal of five Lord Justices who have proven sensibility to religious issues.

Lord Justice Laws made the point that the law forbids discriminatory conduct not by reference to a person's motives, but by reference to the outcome of their act or omission. An act or omission may have a discriminatory outcome regardless of the nature of the motivation behind it, and in certain circumstances indirect discrimination is allowed where it can be justified.

He stressed the importance of distinguishing between 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. Article 9 of the European Convention of Human Rights and the common law rightly provide vigorous protection of a Christian's right to hold and express their beliefs. However, as Lord Justice Laws stated, they do not and should not offer the equivalent protection to the substance or content of those beliefs because they are based on religious teaching.

He stated that the protection or preference of a particular substantive moral position on the basis that it was promoted by a particular faith was 'unprincipled'. This would involve adhering to the strength of subjective opinion. He felt that only the person holding a particular belief should be bound by it, not others. He concluded that the protection of a position purely because of its religious grounds could never be justified. He also concluded that a special court for religious issues was contrary to public interest.