Case round-up

Case round-up by Eversheds 020 7919 4500

Time to be flexible
HSBC plc v Drage, EAT, 8 July 2003

Mrs Drage worked under a job-share arrangement at a branch of HSBC. Her
contract of employment contained a mobility clause, but when the bank sought to
transfer her to a branch nine miles away, Drage objected due to difficulties in
taking her children to school.

Following discussion, the bank suggested that Drage start work at the later
time of 9.15am. She rejected this proposal and raised a grievance. In the
meantime, she worked temporarily at the new branch, from 9.30am to 5pm (with a
reduced lunch break). The conclusion was that Drage should work at the branch
from 9.30am to 5.30pm. Drage resigned, successfully bringing claims for unfair
constructive dismissal and sex discrimination, both overturned on appeal.

The EAT found that in considering the bank’s operation of the mobility
clause, the tribunal had failed to consider whether a reasonable employer would
have concluded there were business reasons for the transfer. The bank had also
talked to Drage about coming up with a solution and had not breached the
implied term of trust and confidence. Finally, there had been no indirect
discrimination on the grounds of sex. The bank had not in reality sought to
impose requirements on Drage (other than that she start work at 9.30, which was
a solution arrived at taking into account her personal circumstances).

Whistleblowing breach disclosed
Odong v Chubb Security Personnel, EAT, 13 May 2003

Mr Odong worked for Chubb as a security officer at client offices. When a
colleague requested that he check the temperature of offices marked ‘no entry’,
unsure of the colleague’s authority, Odong did nothing until this was approved.
However, when the client discovered this, it insisted Chubb replace him. Odong
claimed that his removal constituted a detriment due to health and safety
reasons and for making a protected disclosure – that is to say
‘whistleblowing’. His claims were unsuccessful. Odong successfully appealed the
protected disclosure finding only.

The EAT confirmed that the tribunal should have asked three questions: (i)
did Odong make a protected disclosure? (ii) was he subjected to a detriment,
and (iii) was this on the grounds that he had made a protected disclosure?

Although Odong claimed ‘whistleblower’ protection on health and safety grounds
(which were not satisfied here), breach of contract is itself a ground. The EAT
was satisfied of a number of breaches or potential breaches of Odong’s
contract. Regardless of actual breach, since Odong held a reasonable belief
that there had been a breach of his contract, his refusal to comply with the
instructions was a qualifying disclosure and should have been protected. The
tribunal had overlooked clear evidence, capable of amounting to a protected
disclosure.

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