Rugby Australia has sacked Australian rugby star Israel Folau because of what he said in a posting on Facebook. He wrote the following on his church’s Facebook page despite being warned not to do so.:
“Drunks, homosexuals, adulterers, liars, fornicators, thieves, athiests and idolators – Hell awaits you”.
We’ve posted on this very recently, so we are confident about how a UK employment tribunal would handle this.
The Equality Act bans discriminating on the basis of religious belief or sexual orientation. It could therefore lead to disciplinary action and/or dismissal. But what happens if an employee expresses their religious view which happens to offend colleagues? Is it fair to dismiss an employee for such conduct? Is the employee expressing their religious view or, discriminating against colleagues of a particular sexual orientation? Does it matter if the offended person is gay?
To prove unfair dismissal, an employee must show that the decision to dismiss fell outside one of the ‘fair reasons’ of dismissal. And they must show it was unreasonable.
For direct discrimination, an employee must show that the employer treated them less favourably than someone without the same ‘religion or belief’ or ‘sexual orientation’. The employee must then show that the treatment was because of their belief.
This article discusses how UK law would deal with this issue.
Mr Folau is a devout Christian. Rugby Australia recently terminated his contract for the facebook posting, saying that he:
“had committed a high-level breach of the Professional Players Code of Conduct warranting termination of his employment contract”.
Mr Folau said in the immediate aftermath “I share it with love. I can see the other side of the coin where people’s reactions are the total opposite to how I’m sharing it”.
Mr Folau has now lodged a claim to the Australian Industrial Tribunal (the equivalent to the UK Employment Tribunal) alleging his contract was essentially unlawfully terminated. He says “No Australian of any faith should be fired for practising their religion”.
How do UK employers deal with an employee’s use of social media
Social media has grown enormously over the last 10 years, to the extent that all employers can presume all their employees have a social media presence of some sort. Not all of them are as famous as Mr Folau of course.
Employers often have a social media policy. This aims to minimise the adverse impact of social media on businesses (i.e. bad publicity, revealing trade secrets or other confidential information). Guidelines typically include:
- Avoiding social media communications that could damage reputation or business interests;
- A ban on using social media to disparage the business, its staff or contacts;
- A ban on sensitive business information (i.e. business performance), jeopardising trade secrets, confidential information and intellectual property; and
- Being respectful to others.
Breaching social media policies is generally regarded as misconduct. Depending on the circumstances they can result in formal disciplinary action including dismissal. Having a policy in place makes it harder for an employee to bring a successful employment tribunal claim.
How would Mr Folau’s case be dealt with by a UK employer and through the courts?
Assuming that the employer had a social media policy with the typical guidelines stated above, in our opinion, a tribunal would find the post disrespectful to other players/staff. It would bring the profession into disrepute. It would also have resulted in a victory for the employer in an unfair dismissal claim.
On one hand, employers must uphold discrimination laws, which the anti-homosexual views of the Old Testament are at odds with. On the other, people generally have a right to freedom of thought and expression, especially outside work. But employers have a right not to be associated with such views, which could bring the company into disrepute. And no, it does not matter if the posting offended no gay person.
We think that an employer would be justified in dismissing someone for such a Facebook posting made on a private account, certainly if the employee was well-known or linked online with the employer. This is because it could bring the employer into disrepute. But it depends on the context. If it were a blue-collar type situation (as opposed to a client-facing role) then it would be hard for the employer to say that its reputation could be damaged. This is because the general public would not be able to tie the Facebook posting to the employer.
This case is interesting because there is a conflict between the protected characteristics of ‘religion or belief’ and ‘sexual orientation’. On one hand Mr Folau’s posting on Facebook was expressing his religious belief but on the other it was offensive to colleagues with modern and secular views on homosexuality. Mr Folau says that he was simply quoting from the Bible. But this does not make it right in the eyes of employment law.
Punishing someone for a Facebook posting is not the same as punishing someone for expressing their religious views in the way it would be to punish them for attending a Church that espouses bigoted views.
Nevertheless, employers should be wary of dismissing an employee with a link to their religious beliefs, as this carries a risk of a discrimination claim. It goes a long way to have considered this in advance in the social media policy or disciplinary policy.
It will be interesting to see how the Australian courts handle this case.
Hatton James Legal
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What would the compensation be for a one-off discriminatory act? In discrimination law, one of the main compensation categories is ‘injury to feelings’. Injury to feelings is designed to compensate the employee for the effect the act(s) of discrimination had. There are three levels of compensation. These depend on the seriousness of discriminatory acts, known as the ‘Vento bands’ (after the name of a case):
- Lower band – £900 to £8,800 – for less serious cases eg one-off discriminatory acts;
- Middle band – £8,800 to £26,000 – for more serious cases; and
- Top band – £26,000 – £44,999 – for the most serious cases.
We have written about this elsewhere.
Change in the law
In the recent the case of Base Childrenswear Ltd v Otshudi, the EAT (the Employment Appeal Tribunal) agreed with the ET (Employment Tribunal’s) decision to award £16,000 for a one-off discriminatory act (harassment).
Ms Otshudi worked as a photographer. She complained about six acts of racial harassment from colleagues. The company made her redundant. However she thought the dismissal was because of her race. So she appealed and submitted a grievance. The employer failed to respond to either.
She lodged a claim for racial harassment at tribunal. The employer changed their story at tribunal, saying that the reason for her dismissal was dismissed due to suspected theft. This was a mistake because it is rarely wise to change your story during legal proceedings.
The tribunal found that Ms Otshudi was a victim of racial harassment. It awarded (among other things):
- £16,000 for injury to feelings (on the basis of one harassing act); and
- £5,000 in aggravated damages (mainly because the employer failed to respond to the appeal and grievance, and lied about the reason for the dismissal).
The employer appealed the tribunal’s decision to award £16,000 in respect of one act of harassment.
The employment appeal tribunal found for the employee. It said that just because there had been a one-off discriminatory act, that didn’t mean that the award should be in the lowest bracket. The focus should be on the effect on the employee.
This decision illustrates that even a one-off act of discrimination can be very costly for an employer. This is because when assessing compensation the focus isn’t just on the number of discriminatory acts, but rather the affect on the employee. The employer can’t always know what this will be. this is because the employee might go off sick as a result, have trouble sleeping, see a doctor or specialist, be prescribed pills and so on. So compensation for a one-off discriminatory act which hurts an employee’s feelings deeply will be higher than for a number of acts which add up to less hurt.
Therefore this case highlights the importance of employers doing everything possible to prevent any discrimination. This includes having an equal opportunities policy in the staff handbook, and providing training to ensure all employees, especially managers, are aware of the zero-tolerance policy to discrimination in the workplace.
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Can religious conversations get employees into trouble for gross misconduct?
This article looks into a Court of Appeal case about the NHS dismissing an employee who had religious discussions with patients.
UK law outlaws religious discrimination in the workplace. If an employee engages in it, disciplinary action could result. That could lead to a dismissal or resignation which is unfair.
What happens if an employee claims that disciplinary action taken because of religious conversations is discriminatory? This case comes only a couple of years after the case of the prison worker who told convicts that homosexuality is a sin. In that case, the EAT said a workplace ban on that sort of discussions was not indirect discrimination. It was a ‘proportionate means of achieving a legitimate aim’ (keeping order and safety in the prison).
However this was a case about unfair dismissal. In order to prove unfair dismissal, an employee must show that the decision to dismiss fell outside the prescribed ‘fair reasons’ of dismissal. And they must show it was unreasonable.
The allegation against Mrs Kuteh
Mrs Kuteh, a devout Christian, had 8 years’ service. Her role was to carry out pre-operative assessments on patients. The NHS began receiving complaints from patients that she was discussing religion with them. Specific complaints about Mrs Kuteh included:
- Saying ‘what do you think Easter is about’, to a patient, who responded that ‘[she] wasn’t there to talk about religion’;
- Telling a cancer patient that if they prayed to God, they would have a better chance of survival; and
- Giving a patient a bible and telling them she would pray for them.
The NHS suspended Mrs Kuteh whilst they investigated the allegations. At the investigation meeting Mrs Kuteh argued that her actions were a legitimate part of her healing work. In a later disciplinary hearing, the NHS dismissed her for gross misconduct.
Mrs Kuteh brought a claim of unfair dismissal. She argued that she had a right to freedom of thought, conscience and religion or belief under the European Convention of Human Rights. The ET rejected this. It said the dismissal was fair because her conduct fell in the category of converting, or attempting to convert someone from one religion to another (this is known as ‘proselytising’). It wasn’t expressing or having those religious beliefs.
What the case says
Mrs Kuteh appealed it up to the Court of Appeal, which agreed. It said that proselytising against someone’s will isn’t protected by the Convention on Human Rights.
Therefore employers should feel confident in giving warnings or even dismissing staff who have this kind of discussion with others. But remember that there is a gradient of behaviour ranging from “I went to Church on Sunday” through “Will you come to Church with me on Sunday”, all the way to “Homosexuality is a sin”. There is no blanket rule so you must take each case on its merits.
Case report: Kuteh v NHS
By Zahid Reza
Image used under CC courtesy of Masterbutler
Under the Working Time Regulations 1998 (WTR), workers are entitled to an unpaid 20-minute rest break after working six hours. During this 20-minute break, workers must not be required to perform any duties.
We look at the recent case of Grange v Abellio London Ltd, where the EAT held that
(1) An employer acts unlawfully by even not accommodating (as opposed to refusing) the 20-minute rest break ; and
(2) ET’s can permitted to award personal injury compensation for this.
Mr Grange worked as a relief roadside controller. This role involved monitoring and regulating the bus services. He was to work 8 hours 30 minutes per day, with a 30-minute uninterrupted lunch break. However, because of the responsive nature of the position, he found it difficult to fit in his break. Therefore Abellio changed Mr Grange’s hours to a continuous 8 hours (without the 30-minute break). He filed a grievance, complaining that over the previous two and a half years, he had been made to work without a break, which adversely affected his health. Abellio rejected this grievance.
Mr Grange lodged a claim at the ET, alleging a breach of the WTR. The ET rejected the claim, concluding that ‘there had never been a refusal of a rest break’ by Abellio.
Mr Grange appealed to the Employment Appeal Tribunal (EAT).
The EAT allowed Mr Grange’s appeal in that they rejected the ET’s rationale that there had to be a explicit ‘refusal’ to win a claim. The EAT confirmed that ‘simply the denial of a right through the arrangement of the working day’, even if the worker didn’t request one could constitute a refusal and therefore a breach of the rest break requirements in the WTR.
The EAT also said that the ET can award personal injury damages for a failure in providing rest breaks under the WTR. The EAT’s rationale was that because the WTR is designed to protect the health and safety of a worker, naturally ET’s should be able to award personal injury damages for these breaches.
This case serves as a stark reminder for employers to ensure that arrangements are in place for workers to have an uninterrupted break of 20 minutes if they are working for more than six hours on a given day. Failure to do this may prove costly, especially now this case confirmed damages for personal injury can be awarded.
Case report: Grange v Abellio London Ltd.
By Zahid Reza
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The Equality Act 2010 forbids victimisation. The employee must show that they were subjected to some negative treatment, as a result of a protected act (discrimination).
Wrongful dismissal is a breach of contract claim for unpaid notice pay. If an employer legitimately dismisses an employee for gross misconduct, they don’t have to pay the notice period.
This article looks at the recent case of Francesca Carpos. She claimed the employer dismissed and victimised by dismissing her. She had circulated a memo which allegedly brought her employer’s name into disrepute.
Dr Carpos was a bassoonist and lecturer at the Royal Academy of Music. Dr Carpos had done PhD research into discrimination in the classical music industry. One of her findings was that people often used the term ‘gypos’ for session violinists. She wrote a memo to students, advising them on how to fit in and get a job. The memo included:
“….Be discreet; what’s on tour stays on tour. Become familiar with shared understanding of anecdote, caricature, stereotype and jokes. Google them and look on YouTube, if this is not your culture. For example, you may hear terms like this: Pond life = (string players). Gypos (short for gypsies) = violinists specifically…”.
She circulated the memo to around 800 students. As a result a letter was sent to the Student Union, accusing Dr Carpos of ‘encouraging the development of a toxic environment in which musicians are complicit in the harassment of and discrimination against colleagues’.
Dr Carpos was dismissed for gross misconduct, that is bringing the academy into disrepute.
She didn’t accept this and lodged a claim of wrongful dismissal and victimisation. Dr Carpos argued that the it couldn’t be true the reason was the outpour of hysteria from the student body. The employer must have been discriminating – it victimised her.
Decision – the employer victimised her
Dr Carpos won her claims and the judge awarded over £180,000 in compensation. The tribunal concluded that the academy’s decision to dismiss her on grounds of gross misconduct was wrong and so she was entitled to her notice period. In relation to victimisation, the tribunal concluded that the dismissal was so obviously trumped-up that it really had to do with her having brought a previous complaint about discrimination.
Curiously, the judge also indicated that if Dr Carpos was eligible to bring an unfair dismissal claim, she may well have succeeded in that, too.
Therefore this case serves as a stark reminder that employers shouldn’t be pressured into making knee-jerk reactions because they may inadvertently (1) wrongfully (or unfairly) dismiss; and (2) discriminate against or victimised the employee.
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For the first time, an employment tribunal will decide whether veganism is a ‘philosophical belief’. That will decide whether or not it can be protected under by the discrimination laws (the Equality Act 2010) for the purposes of discrimination, like a religious belief.
Jordi Casamitjana (a vegan) claims that the League Against Cruel Sports dismissed him because he raised concerns that they invested their pension fund in companies that do animal testing.
Jordi has lodged a claim for discrimination citing the ‘philosophical belief’ (which he defines as not eating, wearing or consuming any animal products) in ethical veganism. His employer has refuted these allegations, stating that Jordi’s dismissal was for gross misconduct.
The tribunal has called a hearing in March 2019, to determine whether veganism is a philosophical belief.
What is a philosophical belief?
There is no specific definition of philosophical belief in the discrimination laws. However, caselaw has given guidance, which includes:
1. The belief must be genuinely held.
2. It must be a belief rather than a mere opinion.
3. It must be a fairly serious belief (about an aspect of human life and behaviour).
4. It must be worthy of respect and not conflict with human dignity, nor the fundamental rights of others.
5. It must “have a similar status or cogency to a religious belief”.
6. It need not be shared by others.
7. It may be based on science.
In our view, the crux is whether Jordi’s veganism beliefs have similar status to that of religious beliefs. Some believe that it wont’ this standard because it is likely to be interpreted as a ‘lifestyle/dietary’ belief, rather than a belief which touches all aspects of life, like religions tend to be.
Our view is that Jordi’s veganism belief in ‘not eating, wearing or consuming any animal products’ is capable of being categorised as a belief rather than an opinion or viewpoint. As ‘ethical vegans’ eat a plant-based diet because of beliefs about how humans should treat animals it is likely, in our view, that this part of his case will succeed.
It will be fascinating to see what the tribunal’s decision is in March 2019, as if veganism is classified as a philosophical belief then it could open the floodgates to many different ways of thinking being protected under the Equality Act 2010. Examples found by the tribunals already have included beliefs on climate change.
Laws tend to take on a life of their own once they leave parliament. In bringing in these laws, the government said that it did not share the view that climate change or veganism were covered by the legislation. But the courts have said otherwise about views on climate change, fox hunting and even the “higher purpose” of public service broadcasting.
By Zahid Reza
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Harassment at work often leads to employment tribunal (ET) claims for discrimination. The employee must show that an individual suffered:
(1) unwanted conduct (that is related to a protected characteristic (i.e. age, disability, gender reassignment, race, religion or belief, sex and sexual orientation);
(2) that has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This is quite broad and covers any untoward behaviour.
We look at a recent case which clarifies that a successful case for harassment at work depends on the specific facts.
Mr Evans started working for Xactly Corporation as a sales rep from 4 January 2016. He was called a ‘fat ginger pikey’ at least once during his employment. Mr Evans had strong links to the traveller community, was diabetic and sensitive about his weight. Xactly Corporation decided to dismiss Mr Evans for poor performance.
Mr Evans then brought a claim for harassment against Xactly in relation to the ‘fat ginger pikey’ comment, on the grounds of disability and race. He said that ‘fat’ related to his disability and ‘pikey’ related to his ethnic origin. The ET found that whilst in theory the comment was potentially a discriminatory and harassing comment, it wasn’t harassment. The comments:
- weren’t ‘unwanted’ (because Mr Evans actively participated in the office banter);
- they didn’t have the purpose of violating Mr Evan’s dignity, or creating an intimidating environment;
- and they didn’t have that effect (because he wasn’t offended).
Mr Evans appealed to the employment appeal tribunal (EAT). The EAT ruled that the tribunal was entitled to come to this conclusion because harassment claims are highly fact-sensitive and context-specific.
This case reminds us that although an employee who puts up with harassment at work for years and even joins in with it doesn’t necessarily find it unwanted. Their reaction to such conduct will be taken into account (including their level of participation, or the extent to which they appeared to get offended). This can be critical in establishing whether or not harassment has taken place.
Before an employee brings a harassment claim, it is helpful to keep a diary, register displeasure (eg with a grievance) and get colleagues on board to support their account.
Case report: Evans v Xactly.
By Hatton James Legal
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An employee who wants to claim constructive dismissal must show (1) that their employer has committed a serious breach of contract; (2) that they have not’accepted’ the breach (acted as if it didn’t matter to them) but resigned in response to it; and (3) do it promptly.
A recent High Court case looked at whether an employee who resigns on notice is seen to have accepted the breach or not.
Three employees accused their employer Neon of breaching their contracts of employment. Particular breaches alleged included:
- Failing to pay salary increases and discretionary bonuses awarded to them;
- Making the salary increases and bonuses conditional on signing new terms and conditions; and
- Removing commission agreed at the time of recruitment.
They alleged these breaches amounted to a serious breach of contract entitling them to resign. They resigned on notice. They claimed that Neon:
- Made unjustified findings of misconduct in a disciplinary process; and
- Unjustifiably reported that misconduct to the regulator.
Two out of the three claimants responded by resigning (during their notice period) with immediate effect. They brought claims of wrongful dismissal and breach of contract; the third stayed an employee and brought a claim of breach of contract for salary.
The High Court held that Neon committed a serious breach of all three of their employment contracts; that the first two accepted that serious breach, that they were constructively dismissed (in effect, sacked), and that they wrongfully dismissed (which means entitled to their notice pay).
The High Court interestingly commented that some breaches had been ‘accepted’ by the first two (who resigned giving their notice periods of 6 months and 12 months). The judge thought that it was unfair to allow them to reserve their right to accept the breach of contract, while continuing to work for Neon for such a length of time.
This case shows that to claim constructive dismissal, if an employee resigns with notice in relation to a big breach of contract, and has a notice period that is 6 months or more, this may very well amount to an acceptance of that breach. So, it appears employees with longer notice periods are better off resigning with immediate effect (or giving three to five months’ notice) if they intend to bring a claim that relies on a finding of constructive dismissal.
Case report: Brown & Anor v Neon Management Ltd & Anor
By Zahid RezaRead More
It is well established that an employee has a right to appeal the outcome of a disciplinary hearing. We look at some recent caselaw which raises the question of whether a successful appeal following the disciplinary appeal procedure can reverse what was originally a dismissal.
Mr Patel (the claimant) started working for Folkestone Nursing Home Limited (the respondent) as a Care Assistant in 2008. In 2014, he was charged with:
- Sleeping on duty; and
- Falsifying the records of residents by pre-recording that they slept through the night.
Mr Patel attended a disciplinary hearing on 28 March 2014. His defence was that he was sleeping during his break and that pre-recording records was a common and accepted practice. The outcome letter found both allegations proved and he was dismissed with immediate effect for gross misconduct. But his appeal overturned the dismissal. The appeal outcome letter referred only to the first allegation. As it didn’t address the second one allegation, it was unclear whether this finding had been overturned. He wasn’t happy and did not return to work.
He lodged a claim for unfair dismissal (among other claims) in the employment tribunal (ET). The ET held that the successful disciplinary appeal did not revive Mr Patel’s contract of employment. The employment appeal tribunal (EAT) overturned this decision, stating that Mr Patel ended up not dismissed, so he couldn’t bring a claim for unfair dismissal.
He took the case to the Court of Appeal (CA).
The CA held that the effect of a contractual rights to disciplinary appeals is that if successful, the appeal revives the contract and extinguishes the original dismissal.
This decision confirms that where there is a contractual appeal procedure and an employee succeeds in using it to overturn the original sanction of dismissal, their employment is revived and the original dismissal vanishes.
It is widely believed that the position is the same for a non-contractual appeal procedure (i.e. contained only in a handbook), however the law is unclear on this point.
Tactics for employers and employees
For employers, they can use their disciplinary appeals process as a safety net to rectify what may otherwise have been an unfair dismissal. Employees have a good incentive to appeal even if they don’t want their job back – it can cost them up to 25% of their compensation if they win an unfair dismissal case.
For employees, it is advisable to appeal in order to avoid a 25% reduction in compensation but should they do this when they don’t want their job back? Yes. They should say that they are only asking their employer to overturn the decision about guilt, to clear their name or for an apology, but not to re-instate them. If the employee does get their job back, they get it with back-pay to the date of the dismissal.
An employer faced with this attempt by an employee to have their cake and eat it should refuse to hold disciplinary appeals on that basis. It is a no-win situation for them.
The employer could even try granting the appeal and take a chance on reinstating tactically. After all, they know the employee doesn’t wish to return to work and they might resign, potentially leaving them without a tribunal claim, though this tactic is untested.
Just to be clear, a dismissal that is upheld remains a dismissal at the original date. An employee who is up against a time limit can’t argue that the date of dismissal was the date of the appeal. And an employee can’t have the best of both worlds by putting in a tribunal claim and then appealing – if the appeal is successful, the unfair dismissal claim will fail.
Finally, if an appeal results in a finding of guilt but demotion and even a demotion is out of proportion with the allegation, then this provides the right to resign and claim constructive unfair dismissal.
By Zahid Reza
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