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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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
If an employer doesn’t follow the correct procedure with notice of dismissal then it gives rise to legal claims. Except in cases of gross misconduct, a dismissed employee has the right to their statutory or contractual notice period (whichever is greater).
An employer can give notice of dismissal by email, letter, or in person. In writing is best, to avoid dispute about when it happened. The notice period starts when the employee becomes aware of it. Not for example, when the employer posts the letter.
Recent case law
A recent case took the view that notice of dismissal sent by post is only effective once the employee has had a reasonable time to read it.
A letter giving notice of dismissal to a Mrs Haywood dropped through her letterbox while she was away on holiday. Mrs Haywood read it on her return and the issue was when the notice period began. This was important, as she would get enhanced pension if dismissed after her 50th birthday, which she celebrated whilst on holiday. The employer argued that the notice period ran from the delivery date (which was before Mrs Haywood turned 50) and that they didn’t need to pay the enhanced pension.
The Supreme Court upheld Mrs Haywood’s claim. The court stated the notice period began when she had the opportunity to read the letter, not upon delivery. Creating uncertainty for employers as they cannot be sure as to when a letter will be read. As a result, the date of dismissal may not be that which was intended. However, the court ruled that only a reasonable amount of time would be afforded to an employee and wilful delay will not be considered.
How notice of dismissal is to be served should be set out in the contract, then this ruling will not apply. The employer should check the employee will not be away on leave or off ill, which can delay the process. The employer should serve the notice by post and follow it up by email or telephone to make sure it has been received. Also, the employer can ask the employee to confirm receipt of the letter.
Finally, it is best practice for the employer to give notice at a face-to-face meeting as it guarantees clarity for both the employee and the employer.
Case report: Newcastle Upon Tyne Hospital NHS Foundation Trust v Haywood
Reporting by our intern Maliha
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Dr Dunn accused his employer, the prison service, of disability-related poor treatment. He had been suffering from depression and a heart condition, both of which are disabilities under the Equality Act. He had absence because of depression for just over a month and after an occupational health report he returned to work.
But a few months later he applied for early ill-health retirement because of his depression. This was a good job with a large employer and they have an insurance policy in place to cover staff who find themselves unable to work because of ill-health. The employer delayed dealing with his application (later acknowledging that the process could have been handled better).
The prison service obtained a medical opinion after a few more months. His application for ill-health retirement was progressed but the letter setting out his entitlement was full of errors such as his length of service and his financial entitlement. This caused further delay until eventually he left.
He claimed that the process was discriminatory on the grounds of his medical condition.
The tribunal found that he had been both directly discriminated against and subjected to unfavourable treatment for a reason arising from his disability. But the employer appealed and the case went all the way to the Court of Appeal, which rejected his case, stating that although the ill-health retirement process required improvement, it was not so deficient that it could be classed as discriminatory.
Discrimination is often more about conspiracy than ‘cock-up’. Not every instance of bad treatment that is tenuously linked to a disability or other protected characteristic will give an employee a finding of discrimination.
A finding of direct discrimination requires that the treatment complained about must be ‘because of’ the disability. Eg that a manager sat on paperwork because they perceived the disabled employee as a pain in the neck. A finding of discrimination arising from disability requires that the treatment must be ‘because of’ something (like absence) that is linked to disability.
This ‘because of’ link is fairly strict. It is not enough that the disability provided the context or the treatment or that it wouldn’t have happened without the disability – the tribunal needs to make a finding about the state of mind of the manager(s) involved in the decisions.
This is what the tribunal forgot in this case and why the Court of Appeal stepped in to find for the employer.
The judgement stressed that justified grievances about disability-related poor treatment don’t automatically lead to a finding of discrimination. In this case, the employer hadn’t discriminated against the employee, actually being very sympathetic towards the employee’s situation.
Case report:Dr Peter Dunn v Inspectorate of Prisons
Image used under CC courtesy of Marine Perez
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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When bringing a discrimination claim, the time-limit is 3 months, less a day, from the discriminatory act. This is clear-cut where it is just a single act of discrimination complained of. However, in cases where it is alleged an act or acts extends over a period of time, it is from the final act in that sequence that the clock starts to tick. Often there can be a fine line between a single act with continuing consequences, and a continuing act.
In a recent case, one of the key questions was whether each act taken within the disciplinary procedure was a single act, or whether all of these acts could be classified as continuing acts of discrimination.
Mr Hale was a Consultant for Brighton & Sussex University Hospitals NHS Trust (‘Trust’). His job title was Clinical Director; he was the line manager for many junior doctors and other clinical staff. Four members of his staff lodged a collective grievance against Mr Hale, alleging racially offensive remarks, bullying and harassment. From 10 February 2014, Mr Hale was signed off sick and was later diagnosed with depression. On 13 June 2014, Mr Hale lodged a formal grievance alleging racial harassment against three of the four junior doctors who lodged the collective grievance against him. The Trust concluded that Mr Hale had a case to answer (on the grievance made against him by the four junior doctors), whereas the three junior doctors did not have a case to answer (on Mr Hale’s grievance). The Trust started disciplinary proceedings against Mr Hale which resulted in his dismissal.
Mr Hale lodged a claim against the Trust, claiming that the Trust’s lack of investigation into his grievance was on the grounds of race. The Employment Tribunal (‘ET’) took the approach that each step of the disciplinary procedure was a separate act (i.e. (1) starting the disciplinary procedure; (2) inviting him to a disciplinary hearing; and (3) the decision to dismiss). In taking this approach, the ET found that the first act was seven months out of time.
When Mr Hale appealed his case to the Employment Appeal Tribunal (‘EAT’), the EAT had a different analysis to this point.
The EAT disagreed with the ET and held that the decision of the Trust to instigate disciplinary proceedings “created a state of affairs” that would continue until the disciplinary process ended. Therefore the EAT found these acts to be continuing acts (not singular acts as the ET concluded). The EAT commented that each of the steps taken in accordance with the procedures cannot be “isolated or specific acts”.
By Zahid Reza
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Today’s Victoria Derbyshire programme on BBC News discusses maternity discrimination.
It highlights that when employers settle cases, there is typically a gagging clause that prevents the employee from talking about the settlement, so cases get under-reported.
This meets with our experience. We have rarely seen a settlement agreement for maternity discrimination, or any kind of discrimination, that didn’t contain a confidentiality clause.
This can prevent the employee from discussing
- the details of the dispute
- the negotiations
- the fact of settlement
- the terms of the settlement; or
- the amount of the settlement
Or it may extend to all of the above.
The programme found that around one in nine of mothers had been dismissed or treated so badly they felt they had to leave their job. We think that only a small proportion of these will have brought a maternity discrimination claim. New mothers often tell us that they have their too hands full with the new baby to deal with legal claims.
The programme spoke to Catherine McClennan, who won a maternity discrimination employment tribunal case in 2015 against her employer, the TUC, the union, receiving an award of £21,000 in compensation.
Among her claims was that she was left off the company’s telephone list when she went on maternity leave.
The Women and Equalities Committee recommends a “dismissal ban” for pregnant women and new mothers. At the moment, they can be dismissed as long as the reason is not linked to the fact of pregnancy or maternity absence or a linked reason.
The government says it is determined to tackle pregnancy and maternity discrimination. However we are not aware of specific plans and many feel that Theresa May has her hands full with Brexit.
By Zahid Reza
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From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Grace from Birmingham, her dismissal for gross misconduct and the lessons to be learned from it.
Grace worked for sixteen years as a PA at a well-known company. In January 2014 she was dismissed for gross misconduct after an investigation into the theft of £40,000. She was adamant that she was innocent and backed this by paying privately to challenge the employer’s decision to dismiss her. In terms of evidence the actual perpetrator had access to the petty cash tin and could make withdrawals using her name. All the withdrawals were logged in a petty cash book and nowhere else. We understand that the company has now tightened its petty cash procedures.
The firm found her guilty of 30 thefts adding up to £40,000 and she was made subject to a dismissal for gross misconduct. Two junior colleagues gave statements saying that she had asked for petty cash on numerous occasions between 2013 and 2014. Grace strenuously denied the allegations but in face of two witnesses saying she was responsible for all the withdrawals it was always going to be an uphill struggle to win the case. The company’s only record of the transactions was in a cash book. Unfortunately Grace lost it when she took it home to see who had been forging her signature when withdrawing the cash, having been told that an audit had uncovered the financial irregularities. This led to the investigation into her involvement.
Understandably, Grace felt under immense pressure and became emotional during the investigatory and disciplinary meetings. She did not manage to properly explain her case to the best of her ability and had lost the key piece of evidence. The chances improved when she realised she could show that on some of the days when money had been withdrawn she was on holiday. The company however showed that some of these were half days off.
If Grace had kept better records and had not lost the book she would have stood a better chance of successfully answering to the allegations and ultimately winning her tribunal claim.
Her case highlights the importance of evidence and why employees should take care with petty cash records, especially when working a finance department. If the employer’s record-keeping is poor, employees should keep their own records. Confirming things by email means that there will always be a paper-trail, which may exhonerate you down the track.
By Naomi Vlad
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One of London’s most historic financial institutions, Lloyd’s of London, has given a shock to employees who like to enjoy some lunchtime with their alcohol – disciplinary proceedings!
The institution has banned its 800 employees from drinking between 9am and 5pm from Monday to Friday which includes the lunch break.
A Lloyd’s internal memo to staff acknowledges that “the London market historically had a reputation for daytime drinking”, but that the time for change has come. This comes as a result of around half of the disciplinary action cases in the past 12 months being found to relate to the misuse of alcohol.
The ban marks a wider culture change among City workers. The price for office-hours consumption of alcohol is disciplinary proceedings for gross misconduct and perhaps dismissal.
The ban will apply to the firm’s employees, but not brokers or underwriters from other corporations based at the insurance market in Lime Street. This measure was received with backlash from workers who state that they were not consulted and the ban is not necessary as they can drink “responsibly” during work hours. Comments from employees include for example, one worker asking: “Will we be asked to go to bed earlier soon?” Another questions whether employees face being breathalysed at work to enforce the crackdown. Another worker further stated that: “Lloyd’s used to be a fun place to work. Now it is the PC capital of the world where you can’t even go out for a lunchtime pint anymore.”
Support for the ban can be seen from a market commentator, David Buiks, who said that there is more competition between workers as banks and financial firms look to cut back on staff, meaning staying sober is more important than ever before. He added, “of course it is more than made up for at night when the wine, spirits and beer flow like Victoria Falls.”
The ban is designed to align Lloyd’s of London with many firms in the market. For example, insurer Hiscox already has a policy in place that forbids staff consuming alcohol during work hours. The question is how far an employer can police what workers do when they are outside the office, in their own time. In light of this, QBE has advised staff not to drink but it has stopped short of an outright ban. Despite criticism from employees, the prohibition stands because as the Lloyd’s of London staff memo stated “a zero limit is simpler, more consistent and in line with the modern, global and high performance culture that the firm wants to embrace.”
Our view is that a dismissal for failing to respect the alcohol disciplinary rule would very potentially be unfair and we look forward to the first cases to come from this.
By Gina Mukova
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MPs are calling for employers to be fined firms for sex discrimination in dress codes.
The government must ban sexist dress rules at work that discriminate against women, a committee of MPs has recommended.
The Women’s and Equalities committee began an inquiry following the case of Nicola Thorp, who was sent home from a receptionist’s job with PWC for not wearing high heels. She refused to obey the then rules of her employment agency, Portico, that she should wear shoes with heels that were between two and four inches high.
She argued that wearing them all day would be bad for her feet and that her male colleagues were not asked to follow similar rules. “This may have started over a pair of high heels, but what it has revealed about discrimination in the UK workplace is vital, as demonstrated by the hundreds of women who came forward via the committees’ online forum” Mrs Thorp said. She added: “The current system favours the employer, and is failing employees“.
The committee received reports of women being told to dye their hair blonde and wear revealing clothes at work, such as shorter skirts.
Her parliamentary petition on the issue gained more than 150,000 signatures.
The committee said the Equality Act 2010 should ban discriminatory dress rules at work and that but in practice the law is not applied properly to protect workers of either sex. Chair of the Petitions Committee, Helen Jones MP, said: “It’s clear from the stories we’ve heard from members of the public that Nicola’s story is far from unique.” It said that discriminatory dress codes remain commonplace in some sectors of the economy.
The MPs report recommends a publicity campaign to ensure that employers know their legal obligations that workers know how they can complain effectively. But its key recommendation is that the existing law should be enforced more vigorously, with employment tribunals able to apply bigger financial penalties.
A government spokesperson said: “No employer should discriminate against workers on grounds of gender – it is unacceptable and is against the law. Dress codes must be reasonable and include equivalent requirements for both men and women.
By Naomi Vlad. Image used under CC courtesy of Veenya VenterRead More