Case round up

Redfearn v Serco Limited t/a West Yorkshire Transport Service
Dismissal of BNP member ‘on racial grounds’

Mr Redfearn was employed as a driver and escort for disabled adults and children in the Bradford area. Of his fellow employees, 35% were of Asian origin, as were 80% of his disabled clients.

After an article appeared in the local press stating that Redfearn was standing as a candidate for the right-wing BNP in the forthcoming local elections, the employer received letters from two trade unions representing members of its workforce expressing concern about its employment of a BNP candidate.

Serco dismissed Redfearn on the basis that there was a risk to the health and safety of employees and passengers in the buses he drove. It believed they might be attacked or become anxious, and that relatives and carers may no longer be willing to entrust the transportation of vulnerable passengers to the employer. It was also concerned that its reputation might be damaged through its association with the BNP.

Redfearn went on to bring a claim for direct and indirect discrimination contrary to the Race Relations Act 1976.

The tribunal rejected his claim and ruled that his dismissal was on legitimate health and safety grounds. Redfearn appealed.

On appeal, Serco argued that allowing Redfearn’s claim would make a laughing stock of the Race Relations Act and was contrary to the intention of parliament. It also argued that, since one of the Act’s main aims was to deter rather than reward race discrimination, those who discriminate on the grounds of race should not be able to make a claim under it if they are penalised for such behaviour.

However, the EAT resisted this line of argument. It decided there is no limit on the meaning of the phrase ‘on racial grounds’ as currently drafted in the legislation’s definition of direct discrimination, and any limitation had to be imposed by parliamentary legislation. It said it was not the EAT’s role to ‘legislate judicially’.

The EAT agreed that Redfearn was protected by the Race Relations Act and has sent the case back to a new tribunal for reconsideration. The EAT held that, in theory, Redfearn may be able to establish unlawful discrimination. This is because, following the case of Showboat Entertainments Centre v Owens, ‘less favourable treatment on racial grounds’ may cover less favourable treatment based on the race of other people (eg, clients and employees).

Also, following Nagarajan v London Regional Transport, a victim of discrimination does not have to show that a racial reason was the only reason or the principal reason for their treatment – they only have to show that racial grounds had a significant influence on the outcome.

Discrimination on grounds of political belief is not prohibited by statute. This case appears to widen the scope of the Race Relations Act to provide protection in this area.

According to the EAT, even a dismissal on health and safety grounds can be based on racial considerations and, therefore, be unlawful. Dismissal for committing racist, homophobic or other discriminatory acts in the workplace could also be unlawful. To mitigate the consequences of this decision, the EAT has suggested that it might not be “just and equitable” to award compensation to an employee disciplined for discriminatory acts.

What you should do

  • Be aware that discrimination claims can arise in circumstances where dismissals would appear (at least to the employer) to be entirely justified
  • Given this unsatisfactory state of affairs, you should take reasonable steps to minimise the risk of a claim by preventing the discriminatory behaviour in the first place.

Land Securities Trillium Limited v Thornley
Constructive dismissal – change in role that has the effect of ‘de-skilling’ an employee

This case concerns a claim for constructive dismissal by an employee who alleged that her employer imposed a new job description on her. She contended that her contract of employment was fundamentally breached by changes to her duties imposed by her employer.

Thornley’s employment contract included a flexibility clause, requiring her to perform all duties to the best of her abilities in any post she held and in any other duties reasonably required of her. Thornley’s department transferred to Land Securities Trillium (LST) under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE). As part of a reorganisation, LST dismissed half the transferred staff as redundant, and gave all the remaining staff new job descriptions.

Thornley resigned and claimed constructive unfair dismissal on the basis that her new job was managerial, as opposed to the hands-on architectural role she had previously performed. The tribunal upheld her claim, finding that her old job had become redundant and she had been unfairly dismissed. LST then appealed on a number of grounds, including that the tribunal had not understood the flexibility clause.

The EAT dismissed the appeal. It said the new role would have had the effect of de-skilling Thornley as an architect and therefore amounted to a fundamental breach of contract. The new duties were in no way comparable to what she did before and the flexibility clause did not permit LST to change the extent and nature of Thornley’s duties in the way it had.

Significantly, the EAT held that the flexibility clause did not allow the employer carte blanche to require the applicant to undertake any duties it wished her to, but expressly imposed a requirement of reasonableness on the employer’s request. The court also stressed that this would still be the case if the employer had valid, commercial grounds – as opposed to a wholly arbitrary basis – for requiring the employee to undertake a different role. Once such a requirement is found to be contractually unreasonable for that individual employee, a reasonable basis for making the request cannot mean that it is ‘reasonably required’ of that employee.

If an employee’s role is altered significantly it may amount to a serious breach of contract, and runs the risk of a constructive dismissal claim if not carried out properly. Any change to an employee’s terms and conditions of employment should be carefully considered because there are potentially serious consequences of mistakes in this area.

The presence of a flexibility clause in the employee’s contract may help effect a change. However, these clauses are interpreted narrowly and are subject to the requirement of reasonableness. Generally speaking, flexibility clauses cannot be relied upon to change an employee’s principal job role, particularly in the case of a skilled employee.

What you should do

  • When drafting a job description, you must ensure, as far as possible, that it accurately reflects the individual’s role and the nature of the duties the individual will be expected to perform in that role. Avoid the ‘one-size-fits-all’ job description
  • If you wish to change an employee’s role outside of what has been contractually agreed, then remember that you should obtain the employee’s consent to the change.

Amicus v Nissan Motor Manufacturing (UK) Limited
Consulting the ‘appropriate representative in good time’

On 1 October 2003, Nissan Manufacturing (UK) informed its company council of plans to relocate 62 employees from the Sunderland plant to Cranfield, Bedfordshire in June 2004. The proposal was such that any employees who were unwilling to relocate would be made redundant.

Although the company informed the company council, it did not consult Amicus, the recognised trade union, until 19 January 2004 – two weeks prior to the deadline for the employees to decide whether to relocate or take the redundancy option. Amicus was the ‘appropriate representative’ under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA). At the end of the consultation, 21 employees decided to relocate, 17 employees were made redundant and 23 employees were redeployed.

Amicus complained to the tribunal that Nissan had breached section 118(1A) of TULCRA as it had not involved Amicus ‘in good time’. It argued that two weeks was not a sufficient period of time for a fair and meaningful consultation to take place.

However, the tribunal did not agree with this line of reasoning. In its opinion, even though the consultations with the ‘appropriate representatives’ took place shortly before the deadline for the employees to select an option, this was still ‘in good time’ for the purposes of TULCRA. The tribunal found that Amicus had still been able to achieve significant improvements to the relocation proposal as it was still in the formative stages. Amicus appealed to the EAT.

The EAT endorsed the tribunal’s approach, stating that the length of the consultation period must be judged by working back from the date when the first dismissal was to take effect (1 June 2004). The EAT also agreed that the relocation proposal was still at the formative stage when Amicus became involved, therefore, Amicus had played a meaningful and effective role in the negotiation of the relocation proposal.

Consultation which commences at a late stage can still be ‘in good time’ provided that the proposals are still at a formative stage and there is adequate time for ‘appropriate representatives’ to respond, and for the consultation to be meaningful. In each case this will depend on circumstances of the case including the issues to be discussed, the availability of employee representatives to attend meetings, the number of questions raised by employee representatives and the length of time it takes the employer to adequately respond.

If Amicus had been able to convince the tribunal that it had no effective input into the consultation process due to its late involvement, the outcome of the case is likely to have been different. The tribunal was influenced by the fact that the union’s proposals had been considered and the employer’s plans had been changed due to the consultation process.

What you should do

  • Be aware that while consultation must take place in good time before the first dismissal takes effect, specific periods must elapse between the start of consultation and the date of the first dismissal, depending on the numbers of dismissals proposed
  • Following the landmark case earlier this year of Junk v Kuhnel you should make sure that the 30-day or 90-day consultation period is concluded and that notification of proposed redundancies to the secretary of state has taken place before serving notices of dismissal on employees. Failure to do this runs the risk of being held liable for protective awards (which can be up to a maximum of 90 days’ pay for every employee).

Hot spots

Jointly, severally liable for sex discrimination
Where an employer and an employee are cited as joint respondents in a sex discrimination claim which results in a finding against them, an employment tribunal has jurisdiction to order that they are jointly and severally liable – that is, that they are individually and collectively responsible for the compensation payable.
Way and another v Crouch, Employment Appeal Tribunal

Sick pay scheme adheres to Europe
A sick pay scheme which provides for a reduction in pay after a certain length of absence, and which, subject to certain minimum safeguards, treats absence due to pregnancy-related illness in the same way as any other sickness absence, does not offend European equal pay rules.
North Western Health Board v McKenna, European Court of Justice

Acts amended to implement EU law
The Sex Discrimination Act 1975 and the Equal Pay Act 1970 have been amended to implement EU law. The key changes include new definitions of indirect sex discrimination and unlawful harassment, the extension of protection to more employees working abroad, and a new eight-week limit for employers to respond to a sex discrimination questionnaire.

New tribunal forms become mandatory
New tribunal forms for bringing and defending claims have become mandatory. Only forms produced by the Employment Tribunals Service will be accepted. This includes photocopies, faxed copies, printed versions of the PDF available on the tribunal website, and riders in separate attached sheets. In-house versions or other versions of the form will not be accepted.

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