Supreme Court holds that treatment on the grounds of immigration status was not race discrimination

The Supreme Court has considered two cases involving the mistreatment of domestic migrant workers. In Taiwo v Olaigbe and Onu v Akwiwu the Court held that the reason these employees were mistreated was their particular vulnerability arising from their immigration status, rather than their nationality. Parliament could have chosen to include immigration status as a protected characteristic in the Equality Act 2010, but did not do so. Whilst immigration status is a function of nationality, it is not so closely associated with it to give rise to a claim for direct race discrimination. Nor did the treatment amount to indirect race discrimination, as no particular “provision, criterion or practice” applied by the employers was identified.

EAT gives guidance on pre-termination negotiation and without prejudice

The EAT has given a useful decision on how the rules on the admissibility of “pre-termination negotiations” under s111A of the Employment Rights Act work in practice and how they overlap with the existing rules on “without prejudice”. Faithorn Farrell Timms LLP v Bailey concerned the termination of the employment of an office secretary. She had worked part-time and the employer made it clear that this arrangement could not continue. This led to exit negotiations which the parties believed were covered by s111A and, when these failed, to an internal grievance. Eventually, Mrs Bailey resigned and claimed unfair dismissal and sex discrimination.

As a preliminary issue, the Tribunal was asked to consider the impact of the pre-termination negotiation rules. It made various findings which were appealed by both sides to the EAT, which gave the following guidance:

  • Evidence relating to the s111A negotiations must be disapplied in relation to the unfair dismissal claim but the Tribunal can use the material when considering the discrimination element of the claim. There are clearly practical difficulties with doing this.
  • Section 111A applies broadly: it covers the context and the fact that the discussion took place as well as their content. Internal discussions between employees of the employer are also covered. This is broader than without prejudice protection.
  • It is not possible to waive s111A protection, even if the waiver is mutual.
  • The EAT considered whether an actual offer of settlement must be made for s111A to be engaged. It said that the position is not open ended but it will be for the Tribunal to decide on the facts.
  • If a party engages in “improper behaviour”, s111A protection is lost. Again, this is for the Tribunal to assess although the EAT confirmed that this is a broader test than “unambiguous impropriety” for without prejudice purposes.
  • The EAT also confirmed that s111A principles still apply when “without prejudice” has been engaged. Without prejudice privilege can be mutually waived. In this case, the parties had not waived by referring to the discussions in internal grievance documentation, however, the Claimant had also referred to the discussions in the ET1, and the employer waived without prejudice privilege when it failed to object to these references in the ET3.

This decision highlights the dangers of relying on s111A for employers. While it is useful to have confirmation that broad settlement discussions are covered, not just the offer itself, it is important to remember that the protection is limited to unfair dismissal claims. This is a crucial weakness in the regime for employers, as evidence of these discussions will be before the Tribunal in the context of other claims such as for discrimination. It is hard to see how the evidence will not have some impact on the Tribunal’s decision in a related unfair dismissal claim.

New conflicting Advocate General’s opinion on religious discrimination

Last month, we reported on the case of Achbita v G4S. The Advocate General in that case gave an Opinion that a dress code which prohibited the wearing of any visible signs of religious, political or philosophical belief at work was neither directly nor indirectly discriminatory. The case concerned a Muslim woman who wished to wear her headscarf at work. Now, in a second case called Bougnaoui and another v Micropole SA, a different Advocate General has given a contradictory Opinion.

Ms Bougnaoui was dismissed by Micropole when she refused to remove her hijab at work following a client complaint. Advocate General Sharpston held that this amounted to direct religious discrimination: the employee was dismissed for a manifestation of her religion and the general and determining occupational requirement exemption was not broad enough to cover this situation. In contrast to the view expressed in Achbita, the Advocate General said that Micropole’s reason (that is, its client’s request) was effectively financial, and that direct discrimination could never be justified on the grounds of financial loss. Although not directly at issue, the Advocate General also suggested that, if the issue was treated as indirect discrimination, it would not be justifiable.

There are now two contemporaneous Opinions which take contradictory views. It will be interesting to see what approach the ECJ takes to these cases. It is particularly notable that Advocate General Kokott in Achbita suggested that religious discrimination should be treated differently to other strands because, unlike race or gender, an employee could choose to set it aside. In contrast, Advocate General Sharpston said that religious identity can be an integral part of a person’s very being, which an employee can't just leave at the door of the workplace.

It is also worth noting that Achbita concerned the application of an employer’s broad policy whereas Bougnaoui relates to a decision applied to one employee. This suggests that employers may be more able to justify indirect discrimination to the extent that they apply a broad policy relating to smartness than if they ban religious clothing.

Two cases on unfair dismissal and the Acas code

Two cases this month have considered the application of the Acas Code of Practice on Disciplinary and Grievance Procedures.

In Holmes v Qinetiq Ltd, an employee was dismissed on ill health grounds. The Tribunal said the dismissal was unfair because the employer had failed to obtain an up to date medical report. However, it refused to grant an uplift in compensation because the Acas Code did not apply. On appeal, the EAT agreed. The Acas Code applies to culpable conduct. This will cover conduct dismissals but only capability dismissals to the extent that the performance issue requires correction or punishment. Poor performance due to genuine ill health does not involve culpable conduct and the EAT therefore confirmed that the Acas Code does not apply.

In the second case, Phoenix House Ltd v Stockman and another, an employee was dismissed for some other substantial reason (SOSR) because the employer believed that the relationship had broken down. The dismissal was found to be unfair but the EAT confirmed that the uplift element of the Acas Code does not apply to SOSR dismissals. In reaching this decision, the EAT disagreed with the recent EAT decision in the Hussain v Jurys Inn Group case. This is therefore a helpful decision for employers.

Holiday untaken due to sickness can be carried forward

In Sobczyszyn v Szkola Podstawowa the ECJ confirmed that an employee who cannot take annual leave in the current holiday year is entitled to carry that leave forward into the next holiday year. The employee was a teacher who was required to take leave during scheduled holidays. In fact the employee was off work sick during the period in question. The case demonstrates again that the Working Time Regulations are incompatible with EU law in so far as the Working Time Regulations prohibit leave from being carried forward in such cases. Whilst the Regulations are unlikely to be amended in the current political climate, employers should bear in mind that, pending Brexit, decisions of the ECJ currently remain binding in the UK. Working time and holiday entitlement are areas where EU law has a significant impact on UK employment law.

Advocate General’s Opinion that restriction against marriage over age 60 was indirect discrimination on grounds of sexual orientation

Advocate General Kokott has considered the impact of a rule in an occupational pension scheme which prohibits payment of a survivor’s pension in circumstances where an employee marries after retirement or over the age of 60.

In Parris v Trinity College Dublin, the pension scheme member, Dr Parris, had lived with his male partner for 30 years, and they had entered into a UK civil partnership in 2009 aged 63. Their partnership was only recognised in Ireland following a change of law in 2011. The member was informed that his partner was not entitled to a survivor’s pension, notwithstanding that it had been impossible as a matter of law for him to enter into a civil partnership before he turned 60.

Advocate General Kokott said that the rule amounted to both direct age discrimination and indirect discrimination on the grounds of sexual orientation. The rule had a legitimate aim - to prevent abuse of pension scheme rules by individual employees marrying someone close to them in later life, effectively at the expense of the employer and other employees. However the impact of the rule was disproportionate. A more appropriate approach might have been to set a minimum waiting period after the marriage before paying a survivor’s pension.

Advocate General Kokott rejected the argument that her findings could have the consequence of giving retroactive effect to civil partnership in Ireland. Her Opinion also runs contrary to the view of the Court of Appeal in Walker v Innospec that pension entitlements are permanently fixed as they accrue so that they must be judged by reference to the EU law in force at the time of the member’s service. The decision of the ECJ on this matter is awaited with interest.

Dismissal automatically unfair even though decision-maker was not aware of whistleblowing

In Royal Mail v Jhuti the EAT found that a dismissal on the grounds of poor performance was automatically unfair due to the employee having blown the whistle. Whilst the dismissing officer was not aware of the employee’s whistleblowing, the performance process had been orchestrated by the employee’s line manager to whom serious protected disclosures had been made.

The EAT held that a decision made by one person in ignorance of the true facts, but which is manipulated by someone else who is in possession of the facts and who is in a managerial position responsible for an employee, can be attributed to the employer.

This differs from the position in direct discrimination claims and is an unusual example of the EAT drawing a distinction rather than a parallel between these two areas of law. What remains unclear is the extent to which the manipulation needs to be carried out by someone in a managerial position with direct responsibility for the employee in order to be attributed to the employer. One lesson may be to ensure that decision-making managers are fully briefed by HR so that they do not rely solely on what the employee’s immediate manager says.

Agency workers may be covered by whistleblowing legislation

In McTigue v University Hospital Bristol NHS Foundation Trust the EAT allowed an appeal against a Tribunal’s decision that an agency worker was not protected by whistleblowing legislation. The individual in this case was sourced by the agency to work as a nurse for the local NHS Trust. The Tribunal said that the nurse was not covered by the extended definition of ‘worker’ for whistleblowing purposes. The EAT disagreed. The extended definition includes individuals who are supplied by an agency to work for an end user, provided that the terms on which the agency worker is engaged are substantially determined by the agency and/or the end user. The important point for employers to bear in mind is that whistleblowing legislation protects not only employees and those in traditional working arrangements, but also a wider group of potential staff members such as agency workers.

“Vanishing” dismissal following an appeal

In Folkestone Nursing Home Ltd v Patel the EAT considered whether an employee was still able to bring a claim for unfair dismissal in circumstances where his internal appeal against dismissal had been successful. The EAT held that the effect of the successful appeal was that the dismissal ‘vanished’, even though the employee chose not to return to work. This was notwithstanding the fact that the appeal outcome did not address all of the grounds of dismissal. The employee was therefore unable to claim unfair dismissal. The case serves as an important reminder of the importance of the internal appeal processes, which give employers an opportunity to reconsider disciplinary sanctions, but also to address procedural shortfalls which may have arisen during the initial process.

Preparation of investigation reports and the role of HR in disciplinary processes

In Dronsfield v University of Reading the EAT made various observations about the preparation of an investigatory report and the role of HR in a disciplinary process. In this case an Associate Professor at Reading University was dismissed for gross misconduct for failing to report a sexual relationship with a student. The EAT overturned the Tribunal’s finding that dismissal was fair. Among other things, the EAT highlighted that significant opinions favourable to the claimant were excised from the draft investigation report at a late stage. The Tribunal should have asked whether the final conclusions of the investigation were fully expressed in the report, if not why not, and whether it was reasonable to dismiss having regard to what was omitted in the final version of the report. The EAT also emphasised, citing the recent EAT Ramphal v. Department of Transport decision, that it is the investigating officer’s responsibility to decide issues of culpability, not HR’s. HR has a supporting role which should usually be limited to giving advice on questions of law and process.