making homophobic comments concerning an openly gay employee who uses similar words is still discrimination

Does it matter by whom potentially discriminatory comments are made?

In the context of race discrimination, whether words are discriminatory has for some time involved consideration of who said them. In particular, self-referencing use of obviously abusive and discriminatory terms has become commonplace in the music industry and elsewhere. One argument put forward is that the use of such words by black people is a way for them to take control of them and thereby diminish their effect. It is an obviously difficult and controversial proposition. For example, it blurs the distinction between what “society as a whole” (if there is such a thing) regards as unacceptable abusive, discriminatory and derogatory words.

How does this apply in the case of homophobic taunts. There has been a good deal of recent coverage of problems in schools and in the field of sports. This month former Aston Villa and VfB Stuttgart footballer Thomas Hitzslperger came out and is one of the very few sports professionals to have done so. In doing so he said that it had not been easy to live with some of the comments dished out on the subject. Meanwhile, in schools, 99% of 1600 gay teenage pupils interviewed said they had heard homophobic language used regularly. In response Stonewall has launched a campaign fronted by Will Young to tackle the problem. Highlighted as a particular concern is the use of the phrases “you’re so gay” and “that’s so gay” in a disparaging context.

A workplace example of the misuse of homophobic terms was considered by the Employment Appeal Tribunal in Smith v Ideal Shopping Direct Ltd. Mr Smith joined Ideal Shopping Direct as a TV operations project manager in late 2009. He was dismissed in July 2010 following an altercation with a Ms Pearce. He was told by Ideal’s most senior employee that Ms Pearce might raise a formal complaint and said that, if she did so, he would lodge a complaint about the employer’s response to matters concerning his sexuality. Ms Pearce did complain and this led to disciplinary proceedings. On 14 July he was asked to attend a disciplinary hearing on 19 July. As he said he would Mr Smith said that he would be raising a grievance about having been bullied and subjected to homophobic behaviour by other staff in the workplace.

On 15 July he was summarily dismissed. The reasons given were those that had led to the commencement of the disciplinary proceedings.


a topical problems for schools – allegations of historical child abuse

What should a school do if its caretaker is accused of historical child abuse?

In Z v A the President of the Employment Appeals Tribunal considered whether dismissal of the employee for “some other substantial reason” was justified in light of the allegations. The Police reported to the school that historical allegations of sex abuse had been made against the caretaker. The allegations did not concern allegations during or in connection with his employment at the school. The Head did not believe the allegations but decided that it was appropriate to suspend the caretaker while investigations continued. After about a year nothing had emerged to support the allegations and the Police indicated that a decision to charge the caretaker would not be taken in the immediate future. However, the investigations remained open.

The Head decided that they had to act and recommended to the Governors that he should be dismissed. Dismissal duly followed and the decision to dismiss was upheld on appeal. Their main reasons were the risk to children and to the school’s reputation. An employment tribunal found that the dismissal was unfair, primarily because the reason was not some other substantial reason of a kind justifying dismissal, and awarded compensation. However the Claimant was not entitled to damages in respect of that part of the claim based on his post-dismissal depression preventing him from obtaining work. As an aside, it might have been more relevant to consider how the school would have dealt with any requests for references from prospective employers.

In his judgment President Langstaff noted that the Employment judge had acknowledged that a school cannot reasonably ignore an allegation of historical child abuse.


“belief” in the Labour Party can be a protected characteristic

Regular readers know that one of my favourite areas of employment law is the extent to which case law is extending the definition of what is a religion or belief for the purpose of protection from discrimination. Earlier articles have covered not telling lies, conscientious objection to abortion, wearing a poppy at work, belief in climate change and even belief in the BBC!
The latest decision in this line concerns a belief in the Labour Party. Mr Olivier, who worked for the DWP, has been an active member of the Party for over 30 years. In May 2013 he was elected as a Labour councillor but he did not notify his line manager before taking up the post, as required by DWP procedures. He also breached the Department’s policies by writing a letter to a local newspaper in which he criticised the government’s policy on benefits. He was dismissed for gross misconduct and brought claims for unfair dismissal and direct discrimination.
A preliminary hearing was called to determine whether Mr Olivier’s belief in democratic socialism constitutes a philosophical belief capable of protection under the Equality Act 2010. The tribunal applied the guidelines in Grainger v Nicholson (the climate change case referred to above). Mr Olivier asserted that the Labour Party encapsulates and enshrines a core set of beliefs that are recognised by the general public and has core values including democratic socialism, a strong welfare state, fiscal controls and the nationalisation of key services.


an insidious attack on civil justice

Last month I reported about the punitive approach being taken by judges to failure to comply with directions, as well demonstrated by the “plebgate” case. Andrew Mitchell, former Chief Whip, was restricted to recovering only his court fees because his lawyers had failed to submit a costs schedule on time. We now know that the Police Federation has apologised for their “politics of personal attack” (an interesting phrase) which had to happen after their key witness failed to substantiate his allegations (that’s a generous assessment). Why is this relevant for employment law? The answer is that the rules that govern employment tribunal claims have been, for some years, subject to the so-called overriding objective. Judges appear to have got carried away with the power conferred on them by a sub-paragraph (1.4(g)) “fixing timetables or otherwise controlling the progress of the case”. On the back of this apparently harmless and potentially beneficial objective Lord Jackson published a report which is overtly political in terms of access to justice and has been seized on, particularly by London based appellate judges who, frankly have, based on their recent performances, played a game which undermines the true purpose of appeals.
Is it the fault of claimants and respondents that their lawyers have been unable to comply with strict deadlines? Might that be because they’re not properly funded? Might that be because employers (and employees) can’t afford to pay their lawyers to provide proper representation?
The latest celebrity (and legal) news (courtesy of is that another case concerning Katie Price has been kicked out because of a failure to exchange witness statements on time. So, a case fails not on its merits but because a particular deadline hasn’t been met. Don’t get me wrong – I’m not saying that there should not be penalties, such as forfeiting costs for the procedural hearing but is a proportionate response the loss of the case?


civil partners denied hotel accommodation – not as clear cut a case as you might think

This long running case (Bull & Anor v Hall & Anotherr) hit the headlines this month when the Supreme Court gave its judgment on whether it was unlawful discrimination for Christian hotel owners to refuse a double room to civil partners, under a stated policy that they would only provide double beds to heterosexual married couples (which they had accidentally omitted to mention when taking a booking over the phone).
The Court held that it was indeed unlawful sexual orientation discrimination, although there was a split as to whether it was both direct and indirect discrimination, or just the latter. The court was unanimous, however, that while there had been a breach of the hotel owners’ right to manifest their religion that was justified for the protection of the rights and freedoms of others. According to Lady Hale human rights law:
requires “very weighty reasons” to justify discrimination on grounds of sexual orientation. It is for that reason that we should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion.
There was no dispute that restricting the availability of double beds to the married was indirect discrimination – the hotel owners, Mr & Mrs Bull, were undoubtedly imposing a requirement that only heterosexual married couples could take a room with a double bed. Their argument failed that this was justified because they should be permitted to run their business in a way compatible with their belief that to permit unmarried couples to share a bed would be to facilitate what they regarded as a sin.
It was emphasised that civil partnership had been created to recognise (and encourage) stable, committed, long term relationships and accord equality of respect and esteem to same sex couples. Specific exceptions had been carved out for ministers of religion and religious organisations – which indicates that there was no intention to allow individuals to opt out of the prohibition of sexual orientation discrimination on the grounds of their religious views in any other circumstances.
Where the Supreme Court split was over whether the treatment was direct discrimination with the dissenting minority taking the view that civil partnership could not be equated with marriage and therefore did not turn the indirect discrimination into direct discrimination. However, Lady Hale, giving the leading judgment, made clear that, in her view, the status of marriage and civil partnership were “indissociable” from the sexual orientation of the parties entering into each type of contract. The denial of a double bed to one group whilst allowing to the other was, in the majority’s view, direct discrimination.


recoupment of recruitment costs

Cleeve Link Ltd v Bryla concerned the question of the enforceability of a clause seeking to recoup recruitment costs from an employee, and clearly establishes that an Employment Tribunal is entitled to consider whether or not such a clause is unenforceable as a penalty.
It arose in the case of Ms Bryla, a care worker recruited from Poland. Her contract of employment incorporated a term entitling her employer to recover all of its recruitment costs, which included an agency fee of £400 and her airfare, if she left within the first 6 months of her employment. The clause provided that after 6 months’ employment, the proportion recoverable would reduce gradually to zero over the next half year (reducing by one-sixth each month). Ms Bryla left the job after only 12 weeks, when she was dismissed without notice for misconduct following an altercation about her working hours. She was owed £1,203.35 for unpaid wages but was paid nothing.
An employment judge found that the clause was unenforceable as a penalty, despite finding that the clause represented a genuine pre-estimate of the costs of recruitment incurred by the employer. The Employment Apppeal Tribunal overturned this. On the facts as found by the Employment Judge, the clause did not amount to an unenforceable penalty but a genuine liquidated damages clause. However it firmly rejected the employer’s suggestion that an Employment Tribunal has no jurisdiction to find a penalty clause unenforceable.
It seems to me that the deduction contemplated by the contract must be a lawful deduction. If it is a penalty clause, it is not a lawful deduction, and I cannot accept [Cleeve Link’s] argument that it is not within the province of the Employment Tribunal to decide this matter. This is no different to a number of other aspects of a contract of employment that fall to be considered, construed and adjudicated upon in the context of the statutory jurisdiction.


does anyone, including judges, know the correct approach to ETO dismissals and administrations?

In March 2011 I commented on the uneasy interplay between insolvency law and employment law. At that time the question was whether highly contentious “pre-pack” administrations provided an opportunity to dispense with a workforce as well as most of the company’s debts by using a TUPE exemption. Oakland v Wellswood (2008) appeared to allow administrators to do so, whereas OTG Ltd v Barke appeared to close that option.
Against this background Crystal Palace FC Ltd & Another v Kavanagh & Ors is a recent and significant Court of Appeal case dealing with the fairness of dismissals by administrators of struggling companies. In 2009 the finances of the company running the club were in a parlous state and it went into administration at the beginning of 2010. The administrator wanted to sell the business as a going concern, if he could. One obstacle to this was that the ground where the club played was separately owned, and the only credible buyer, a consortium, wanted the ground as part of the deal. The next month the ground’s owner was also put into administration by its bankers. Negotiations ensued which were complex, fast moving, and subjected to spin by the parties, but were not immediately productive.
The administrator decided to mothball the club once the season ended (with relegation narrowly avoided), in the hope of selling later. As part of that, in May 2010 he dismissed 25 employees who, he was advised, could be sacked without ceasing the core activities of the company. The administrator finally sold the company to a consortium in August.
An Employment Tribunal found that while the sale was not the reason for the dismissals, they were for a reason connected with the transfer. Normally such dismissals are automatically unfair. However it went on to decide that the dismissals were fair, being for an “economic, technical or organisational” (ETO) reason, in that reducing the wage bill would allow the administrator to keep the business going – a reason separate from the longer term objective of being able to sell the business later. (However, reducing the workforce to make the business more attractive to a buyer would not have been an ETO reason).
The Employment Appeal Tribunal disagreed with the Employment Tribunal about whether the dismissals were for an ETO reason. Because the administrator intended to sell the club eventually, the dismissals could not be regarded as for an economic reason, but could only be treated as being to facilitate the sale, applying the dictum of Mr Lord Justice Mummery in Spaceright Europe Limited v Baillavoine [2012] ICR 520 that:
For an ETO reason to be available there must be an intention to change the workforce and to continue to conduct the business, as distinct from the purpose of selling it. It is not available in the case of dismissing an employee to enable the administrators to make the business of the company a more attractive proposition to prospective transferees of a going concern.
The Court of Appeal in turn took the contrary view, because the circumstances in the present case differed from those in Spaceright – for example footballing is a seasonal trade, and the players tend to be its only realisable asset – and the EAT had put too much emphasis on the term “mothballing”.


TUPE changes

Draft regulations for the forthcoming TUPE reforms have been published. The changes they are intended to make are:

– To allow a transferee to start collective consultation with representatives of employees due to be transferred about planned redundancies before the transfer takes place, if the transferor agrees. This will require a good deal of co-operation between the two if the consultation is to be meaningful, and if a sale is not yet a “done deal” a seller may be reluctant to allow it.
– Providing that variations connected with the transfer will be deemed void if the transfer is the reason for the variation – but not variations for a reason “connected with” the transfer. This is apparently a narrowing of the scope of the regulations, and variations will also be allowed if there is an “economic technical or organisational” (ETO) reason entailing changes in the workforce, or an otherwise void variation is permitted by the employment contract. It remains to be seen whether vague, “catch-all” variation clauses will be found to be effective in such a situation. Courts and tribunals have in the past been reluctant to accept that employers can use very wide general variation clauses to make unilateral fundamental changes in employment terms (See for example SmithKline Beecham plc v Johnson). There is also the challenge presented of drafting a variation clause allowing for a variation which would be void in law (because the reason for the variation is the transfer), were it not for that clause’s existence.
– Making a similar change to the provisions on unfair dismissal, so that dismissals will be unfair if the reason for the dismissal is the transfer itself, but not if the reason is merely “connected with” the transfer. There will no doubt be a good deal of litigation about when a reason is the transfer and when it is just connected with it.


a car parking space, an email, a dismissal and perversity

Mrs Donnelly worked for the Environment Agency from 1992. She was on a flexitime contract. Towards the end of her time there she was disabled by osteoarthritis of the knees and spondylitis, which affected her back and her hip. As a result she found it difficult to walk far. This meant she had to change roles. In January 2010 she was offered a temporary role as an alternative, but she only did it for two weeks before going off sick with stress. She had a number of concerns about that change in role and her employment, but at the heart of a long running tribunal claim were the trouble she had getting a parking space close to her office, an email she alleged was harassment, and her ultimate dismissal in 2011 for lack of capability. She was successful in all those claims before Employment Judge Reed sitting at the Employment Tribunals in Liverpool. The Agency appealed: (The Environment Agency v Donnelly).
Mrs Donnelly argued that her employer had imposed a “provision criterion or practice” (PCP) that she must walk to the office from an overflow car park when she got into work at half past nine, and that in refusing to earmark a parking space in the main car park for her, they had failed to make a reasonable adjustment. The Agency argued that she could have come into work at nine, when there were plenty of spaces, and so there was no PCP. they also proposed that she could be “shuttled in” from a more distant car park, in the sense that she could ring the office and someone would come and fetch her and, at the end of a shift, return her. Controversially, it was also suggested that she could use a disabled person’s parking space, but on the understanding that she would have to remove her car if the space was required by a blue badge holder. The Employment Appeal Tribunal disagreed with such arrangements. Mrs Donnelly was contractually entitled to come into work at the later time, and it was for her employer to make reasonable adjustments, not for her.
Turning to the email said to have been harassment, this was written to her during her final episode of sickness. In it a Mr Hopwood referred to her “negativity” and cast doubts on her capability or willingness to fulfil any role with the Agency at all. The Employment Tribunal described the email as “less than supportive or helpful” but, according to the Employment Appeal Tribunal, that fell far short of harassment. The email could not reasonably have been read as falling within the statutory definition of harassment – and so that finding was set aside, on the basis that the finding made by the Judge was perverse:


is a zero hours contract one of employment or self-employment?

News about zero hours contracts continues unabated. After I reported last month that the Chartered Institute of Personnel and Development had conducted research suggesting that many people are happy with zero hours contracts, Vince Cable has performed the sort of volte face that seems to come easily to politicians by announcing that the crackdown on zero hours contracts that he had championed just weeks earlier will not now take place. However there is to be a Government consultation.
In G4S Secure Solutions (UK) Ltd v Alphonso the Employment Appeal Tribunal has looked at what amounts to a zero hours contract in the context of procedural issues as to whether a claim was in time or not and whether the appeal could proceed despite having the employee failed to comply with the Tribunal’s orders. As I have mentioned before zero hours contracts are not defined in statute and it is therefore unsurprising that we have seen a rash of cases dealing with legal issues concerning their operation in practice.
Mr Alphonso originally started work as security guard for G4S in 2002. In 2011 he asked to move to a zero hours contract for personal reasons; this was agreed and put in place on 14 November that year. He was thereafter offered work twice, but then in May the next year he was sent his P45. It was automatically generated because he had not worked for three months and his screening for suitability to work as a security guard had expired. He presented a claim for compensation for unfair dismissal. The question was, when did he stop being employed – when he received his P45, or when he transferred to a zero hours contract? G4S said his zero hours contract meant there was no obligation to offer work, or for him to take it, so it was not an employment contract but a self-employed arrangement.
Unsurprisingly the Employment Appeal Tribunal held that it was not as simple as that.