This week’s case round-up by Eversheds 020 7919 4500
Blowing the whistle on the boss
London Borough of Harrow v Knight, EAT, 16.09.02, All ER (D) 254
Knight was employed as a technical officer in the council’s
environmental services department. He was involved in investigating apparent
breaches of regulations by a local food business, during which it was alleged
that Knight’s boss had known about the breaches for over two years. Knight felt
duty bound to report that evidence in accordance with the council’s
whistleblowing procedures.
During a lengthy internal investigation Knight alleged he had
suffered a nervous breakdown. Knight brought a tribunal complaint claiming his
report had been a protected disclosure within the meaning of the Public
Interest Disclosure Act 1998 and that the council had subjected him to a
detriment on the grounds of that disclosure. The tribunal found in Knight’s
favour and he was awarded £12,918 compensation.
The council’s appeal to the Employment Appeal Tribunal was
successful.
It found the tribunal had failed to address whether that had
caused or influenced the council’s conduct towards him. Merely demonstrating
that ‘but for’ a disclosure, a detrimental act or omission would not have
occurred is not sufficient. The
council’s acts or omissions may have caused or contributed to Knight’s illness,
but there was no reliable evidence that this arose as a result of his protected
disclosure.
Christian advertisement was
objectively justified
Gallant v Church of Scotland Board of Social Responsibility, EAT
Scotland, 25.10.02, All ER (D) 121
The Church of Scotland advertised for a residential care worker
stating they must have a ‘live church connection and a Christian commitment’.
Gallant, who was Jewish, was not called for an interview. He
brought a tribunal complaint on the basis that he was being discriminated
against on racial grounds as he could not adhere or conform to the Christian
requirement in the advertisement.
His claim was dismissed – the tribunal held that the advertiser
was part of a Christian church and its aim to provide care according to a
Christian ethos was a legitimate objective.
Gallant appealed, arguing his rights under the Human Rights Act
1998 were infringed by the case, but his appeal was dismissed.The EAT upheld
the tribunal’s decision that the indirect discrimination arising out of the
wording was objectively justifiable and Human Rights Act points raised by on
appeal, related to issues over which the tribunal had no jurisdiction.
Pragmatic approach to sickness
absence
Joy v Connex South Central EAT, 12.11.02, All ER (D) 168
Joy, a clerical worker, started to suffer heart problems in
1999 after 20 years employment with the rail company. His cardiologist
recommended heart surgery and warned of a considerable post-operative
recuperation period. He was advised to carry out no work at all until his
surgery and was accordingly signed off sick in January 2000.
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Seven months later, still with no date for his operation, Joy
was dismissed from his position on health grounds. His subsequent claims of
unfair dismissal and disability discrimination were unsuccessful.
The tribunal found that Joy’s ill health was a legitimate basis
for the termination of his contract. It acknowledged he was disabled and had
been treated less favourably but, since he was unable to perform even light
duties to enable his employer to consider any adjustments to his work,
concluded his dismissal was justified. Joy was unsuccessful on appeal.
