Dismissal for beard that was “too long” and “too religious” upheld

Back in December 2015 I commented on the decision of the European Court of Human Rights in Ebrahimian v France, which concerned the termination of employment of a health worker at a hospital who refused (on religious grounds) to remove her headscarf when she was on duty at work. By way of a brief recap, state secularism (or laïcité) is a strongly protected principle in French society. That is why you will not hear hymns or carols sung in French schools and there was a big fuss last month when a village commune tried to place a nativity scene in the square in front of the local mairie. It was determined that Ms Ebrahimian, by wearing a symbol of religious affiliation, was breaching her duties as a public official. In its judgment the court held that the non-renewal of her employment contract did amount to an interference with her right to manifest her religion, contrary to Article 9 of the European Convention on Human Rights. However, that interference had the legitimate aim of protecting the rights and freedoms of others, pursuant to French law. Accordingly, her claim failed.

A similar case has now surfaced in the Versailles administrative Court of Appeal. A trainee doctor of Egyptian origin was dismissed from his job at Saint-Denis hospital centre in Seine-Saint-Denis because his “imposing” beard constituted an “ostentatious display of religious belief”. The individual concerned declined to deny or confirm that his appearance was intended to be a way to “demonstrate his religious activity”.  On 19 December, the Court of Appeal supported the decision, noting that although the wearing of a beard “even long”, cannot “on its own” cannot (necessarily) constitute a sign of religious affiliation, the “circumstances” entitled the hospital to at as it did.

The Santa Clause: Employment Law issues in Lapland

Penguin Santa You know who’s having a low media presence this year? Santa Claus! I mean, just look at the Christmas adverts this year! Without naming names, the ‘biggest’ Christmas adverts this year involve a monster, a carrot and a toy factory. The only ‘big’ advert that sees the big, red man is one in which Paddington bear mistakes a burglar for Santa!

So, why the low media presence? Where is Santa?

On that front, I may be able to help. You see, Mr Claus is currently having some Employment Law and HR issues with his workforce and has been busy obtaining legal advice on what to do next. It’s a stressful time of year, particularly with less and less people believing in him (there seems to be a rumour going around that he isn’t real) and certain big rival companies in the logistics business setting up in competition (the main one named after a geographical location considerably far away from Lapland).

Put simply, Christmas needs saving and Santa can’t operate without solving his current employment law issues. With this in mind, let’s go on a Christmas journey and help Santa save Christmas!

Can an employee be dismissed for supporting a certain sports team?

A few weeks ago, I went to the Belgium Grand Prix. Lewis Hamilton and Sebastian Vettel had a race-long battle which, for the most part, revealed a fairly even mix of Ferrari and Mercedes fans in the crowd. Hamilton won and was cheered onto the podium. At the next Grand Prix, in Italy, Hamilton won again. This time he was booed on the podium due to the vast number of Ferrari fans at the event. And, this last weekend, at the Singapore Grand Prix, the Ferrari cars were lambasted for crashing into each other and Hamilton took another (cheered) victory.

Why am I telling you this? Well, depending on which race you went to, your status as a Ferrari or Mercedes F1 fan would get a different reception and, weirdly, this can be the same with different workplaces.

Football is the obvious starting point here. If I worked in Manchester and declared myself to be a Liverpool FC fan on the first day by walking into the office with a Liverpool FC scarf, I’d be unlikely to make friendly quickly. In comparison, I’d most likely get a warmer reception if I did so in our Canter Levin & Berg office in the city centre (albeit there is a sizeable Everton-supporting community here too!)

But, surely, even if that is the case, the title of this blog is a daft question? In this age of publicised Employment Tribunal claims and employment law protection, surely an employer can’t take the ultimate act of dismissing someone just because they support a certain football team or Formula One team?

US firm starts microchipping employees – Science fiction or the future?

Microchip reader Yes, you read that correctly. Microchipping employees. And, no, that’s a real headline. A technology company in the USA has been widely reported as microchipping employees in place of their security and identity cards.

The first thing to get out of the way here is that they aren’t implanting an actual, square computer chip. Rather, they insert a tiny implant (the same size as a grain of rice) between an employee’s thumb and forefinger with a syringe. Apparently, removing it is akin to taking out a splinter (ouch?)

Now, apparently, the ‘younger generation’ are most likely to get onboard with this in the future. Well, I’m in my twenties and I’m not tempted in the slightest. Saying that, I hate needles, so that’s a poor starting point…

Looking at the wider picture, we live in a world of fingerprint ID on phones and being able to unlock the latest phone handsets with your own face. So why is an implant so controversial?

Does the recent European Court of Human Rights decision actually ban employee email monitoring?

You’ve probably seen the recent headlines: ‘Employer breached employee’s human right to privacy by reading workplace emails’, ‘Employers can’t place employee communications under surveillance due to human rights’, et cetera, et cetera.

The thing is, broadly speaking and barring one key exception, those headlines are wrong.  Why?  Firstly, because the facts of the case were unusual and, secondly, because the employer failed to do something which, nowadays, is standard practice and commonplace.

Let’s look into these two points briefly.

Unlike Justin Gatlin, is drug use at work the end of the track?

Without a doubt, the main conversation within sport this last week (aside from Neymar Jr being sold to Paris Saint-Germain for the equivalent of 666 million Freddo chocolate bars) was Justin Gatlin’s victory over Usain Bolt in the 100m.  Aside from being an unpopular win due to beating Usain Bolt in his final race, Gatlin’s victory was controversial (and noticeably booed by loud sections of the crowd) due to his past two performance enhancing drug bans.

Many people have asked the question as to why ‘drug cheats’ don’t face lifetime bans and, also, asked why he should be allowed to return when drug-taking could result in loss of career.

And it’s that ‘loss of career’ point that we’re going to explore briefly today. Namely, does being caught with illegal drugs (i.e. drugs that you do not have a prescription from your Doctor for) at work automatically result in your dismissal.

The short answer? Yes, no and maybe not.

Yes, in terms of the fact that being found with illegal drugs is almost certainly going to be treated as gross misconduct and, for most employers, committing a gross misconduct offence results in an investigation into whether to dismiss.

No, simply because an effective investigation will still need to be carried out by the employer, hence the dismissal won’t be ‘automatic’ (i.e. the employer won’t simply dismiss on the spot but, rather, would be best advised to suspend the employee pending an investigation and the carrying out of a disciplinary meeting).

And ‘maybe not’, because some employers (depending on all the circumstances) will give employees the chance to undergo rehabilitation before acting. I.e. if the employee agrees to enter an alcohol dependence programme and/or rehab, the employer will consider limiting its action and aiming to get the employee back to work. However, this is not common practice at present and strongly depends on the individual circumstances.

PC dismissed after being spotted on TV at Royal Ascot when off sick

PC Jonathan Adams is, like me, a fan of horse racing. However, his enthusiasm for the sport caught up with him when he faked illness to watch horses in which he had an interest.

PC Adams was praised for his community policing work in Gloucester city centre and was described by a retired chief inspector as being “one of the most honest police officers I have ever come across”.

On 30 September 2015 he was off work, having called in to say that he was suffering from diarrhoea. However, this coincided with the running of Little Lady Katie at Nottingham, a then three year old filly trained by Karl Burke in which he had a 2.5% share. The horse was third of eleven at odds of 16/1. In the subsequent investigation his attendance at the racecourse was revealed by a number plate check.

He was at Nottingham races again on 6 April 2016, this time watching the same horse come seventh of twelve at odds of 8/1 and having called in sick with a migraine.

He subsequently requested the week off for Royal Ascot and was refused. Undeterred, he told Gloucestershire Constabulary that he had to take 17 June off because he was suffering from irritable bowel syndrome. Somewhat unwisely, particularly bearing in mind his occupation, he was spotted later that day on Channel 4 Racing, leaping about with joy (pictured: credit Channel 4 Television), when another Karl Burke horse in the same syndicate ownership (but in which he didn’t have a stake), Quiet Reflection, won the Group 1 Commonwealth Cup, having gone off at at odds of 7/4 favourite and beating, among others, the Aidan O’Brien trained Washington DC.

At a disciplinary hearing held over two days in July 2017 PC Adams said that he had decided that it would do him more good to go to the races than stay at home because racecourses were his “happy place” where he could alleviate his symptoms of crippling stomach ache and stabbing pains or migraines. In that case he must have acted quickly, notwithstanding his ailment, when arranging to attend the Royal Enclosure at Ascot suitably attired and bearing in mind that he lives in Ross-on-Wye.

Indirect religious discrimination

Can a worker be dismissed for refusing to leave a partner convicted of unrelated criminal conduct with which the dismissed worker was not involved?

 

This question was considered in the recent case of Pendleton v Derbyshire County Council & Anor (Religion or Belief Discrimination) [2016] UKEAT 0238 15 2903.  The facts of this case were that the Claimant’s (Mrs Pendleton’s) husband was the headteacher of a local school.  The Claimant herself was also a teacher employed at another local school where she was teaching a Year 6 class, had an unblemished disciplinary record and was highly respected both in school and also within the Anglican Christian community (being a devoted and practising Anglican Christian).

 

In January 2013 the Claimant’s husband was arrested on suspicion of downloading indecent images of children and voyeurism.  He was later convicted of these offences and sentenced to ten months’ imprisonment.

 

The Claimant initially left her husband and went to stay with her parents, taking leave from work – at this point the headteacher of the school where she was employed assured her that her position would remain open for when she returned.  Although there was no evidence that the Claimant had any knowledge or involvement in her husband’s actions, the headteacher had also stated that the school couldn’t support her if she stayed with her husband.

 

During her period of leave the Claimant decided that whilst she did not condone what her husband had done, she placed importance on her marriage vows and would therefore stay with him if he could show unequivocal repentance.

 

The school subsequently dismissed the Claimant summarily, stating that she had “… chosen to maintain a relationship with [her] partner who has been convicted of making indecent images of children and voyeurism. This has led the panel to believe that [her] suitability to carry out the safeguarding responsibilities of [her] role … have been eroded. Furthermore, the choices [she had] made in [her] personal life are in direct contravention to the ethos of … the … School”.

 

The Claimant’s appeal against her dismissal was unsuccessful and she therefore brought claims of unfair dismissal, wrongful dismissal and indirect religious discrimination against the Respondent based upon her religious beliefs as noted above.

 

The Employment Tribunal agreed with the Claimant’s submission that she had been unfairly dismissed, stating that the reason for her dismissal was not some other substantial reason (SOSR) – she had not committed an act of misconduct let alone gross misconduct – but rather the Respondent’s view that the Claimant had used poor judgment in staying with her husband despite him being a convicted sex offender.  The Claimant’s claim of wrongful dismissal also succeeded in light of the above.

 

With regards the indirect discrimination claim however, the Tribunal noted that the claimant held a belief for the purposes of section 10(2) Equality Act 2010, that: “her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith”.  The Tribunal further accepted that the Respondent had applied a provision, criterion or practice of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism, however concluded that the Claimant would have been dismissed whether she believed in the sanctity of marriage or not as another individual in the same situation would have also been dismissed, even if they did not share the Claimant’s religious belief.  The tribunal did comment however that had they needed to consider the question of proportionality, they would have found that the Respondent did not show that the dismissal was a proportionate means of achieving a legitimate aim.

 

The Claimant appealed to the Employment Appeal Tribunal (EAT) on the basis that making her choose between her marriage vows and her career was enough to show she had been placed at a disadvantage, especially given she had been required to act against her religious beliefs.

An employee’s right to privacy – are your emails protected?

One of the most common issues encountered by employers today is whether emails sent by employees are able to be used in disciplinary proceedings against them.  Are they the private property of the employee or can an employer use them as evidence if they have an effect on their employees/the workplace?

In the case of Garamukanwa v Solent NHS Trust, an employer was recently held not to have breached an employee’s right to a private and family life (Article 8 of the European Convention on Human Rights) when they reviewed private information that belonged to the employee on the basis that the information related to work and therefore had a potential impact on the employer.

The Claimant (Mr Garamukanwa) worked as a Clinical Manager for the Respondent (Solent NHS Trust), and had formed a personal relationship with a fellow colleague, Ms Maclean.

Following the breakdown of this relationship, the Claimant then believed that Ms Maclean had started a relationship with another colleague, Ms Smith. Ms Maclean and Ms Smith subsequently received an email from the Claimant in which he advised them that unless they told their manager about their relationship, he would do it himself.

Prior to this an anonymous letter had in fact already been sent to the aforementioned manager (Mr Brown), accusing Ms Maclean and Ms Smith of ‘inappropriate sexual behaviour’ in the workplace.  Mr Brown subsequently raised these concerns with Ms Maclean and Ms Smith, who denied both having a relationship and inappropriate sexual behaviour.  Ms Maclean later advised Mr Brown about the email that herself and Ms Smith had previously received from the Claimant and stated that she felt threatened as a result of this.

Mr Brown therefore informally raised these concerns with the Claimant, who apologised for sending the email but denied being the person who had sent the letter to him.  Ms Maclean and Ms Smith were then the subject of a vendetta which consisted of the sending of malicious emails and photos to management and other members of staff, from various anonymous email addresses.  In addition a fake Facebook profile was set up and around 150 of the Respondent’s employees were added to it.  It later became clear that whoever was responsible for the vendetta was following Ms Maclean and Ms Smith, and Ms Maclean believed that the Claimant was in fact stalking her. 

Decline in “risky” office parties

Recent research has shown that 30% of employers do not usually have Christmas parties for their employees. This represents a significant reduction in the number of festive parties since data started being collected in 2009. Some employers have blamed financial constraints while others have said that, quite simply, they’re not missed by employees.

According to Evren Esen, director of survey programmes for the Society for Human Resource Management (in the US):
Maybe it’s one of those things that’s not as appealing to employees any more…Millennial employees may also have different expectations of the workplace and how they want to spend their time at work.
Meanwhile in the UK, reputation and brand management specialists Igniyte, has published the results of a survey which shows that one in four UK employees have vowed to drink less this year, with a view to avoiding embarrassing themselves and/or flirting with a colleague.

The research also shows that nearly one in three employees have flirted with another employee and over one in four kissed a co-worker at a Christmas party. While such activities may at face value seem to be relatively harmless, the research also reveals some more worrying tendencies. Apparently 14% of energy and utility sector workers have been dumped by their partners as a result of their Christmas party behaviour, while 14% of employees in the same sector are planning to confront a colleague or tell them that they don’t like them. In the property sector one in ten have received written or verbal warnings following bad behaviour at a Christmas party and, remarkably, 8% of those questioned lost their jobs as a result of what they did.

As a sign of changing times 15% are planning to change their Facebook settings before the party so that they have to approve a ‘tag’ in a photo or status.

Of course, it is not just employees that may behave badly. The apparently relaxed environment of the Christmas party can cause big problems resulting from the misbehaviour of employers. Every year there are news stories about discrimination in various forms (particularly sex discrimination) and, sadly, reports of serious assaults. It’s led some to ask, in all seriousness “is there anything worse than an office Christmas party?”. In the words of Constance Watson in The Spectator:
It is almost always a horror show. Colleagues who are cheerful all year round turn into angry drunks. Usually benign bosses become second-rate pimps. The interesting become boring and the boring become interminable.
Her sensible advice is not to be too stingy with alcohol but to keep the party simple and short. If some want to go on and get paralytic somewhere else, that’s up to them. Critically however it will not be at a function organised by and very likely associated with the employer. A good case in point in terms of reputation damage can be seen in the case involving MBNA Bank that I discussed last month.