Gordons Legal Employment Update – 14 November 2016

Tuesday 15th November 2016

This week’s update includes sex and disability discrimination in the education sector, an employee fraud case and an immigration legislation update.

Education and Discrimination

There are two discrimination cases from the education sector in the news this week:

Disabled teacher awarded £180,000 for disability discrimination

A school in York has committed ‘serious and substantial acts of discrimination’ against a teacher suffering from cystic fibrosis leading to a £180,000+ compensation pay-out.

Philip Grosset was employed as the head of English at a school in York and suffered with the condition amidst a tight regime imposed by a new headteacher.  The previous headteacher had allowed reasonable adjustments for Mr Grosset to attend medical appointments and meet deadlines more flexibly.  However, on the appointment of the new headteacher, Mr Grosset’s workload and pressure increased to the point he had to compromise his health routine leading to a lung function reduction and a 2-year loss of life expectancy.  He was eventually signed off with work-related stress.

Before his stress leave, Mr Grosset had shown the 18-rated film ‘Halloween’ to a class of pupils as part of their GCSE coursework. Consequently, Mr Grosset was invited to a disciplinary and was dismissed on the basis of gross misconduct.  In response, he took his former employers to tribunal which found that he had been unfairly dismissed, discriminated against on the basis of disability and had not been provided with reasonable adjustments.

The £180,000 compensation award does not take into account Mr Grosset’s loss of pension contributions; such an additional award could take the total amount over the half million mark.  In addition, the governors and senior leadership team of the school have been ordered to undertake disability in the workplace training. Further, the City of York Council must now review their support procedures for other disabled employees.

Comment: When considering adjustments for disabled employees, it is crucially important to consider what is reasonable in all of the circumstances. In this case, the school had previously made reasonable adjustments for Mr Grosset. Generally, unless there is a tangible change in circumstances, employers should continue to make the same or similar adjustments, despite any change in management, or risk claims for disability discrimination.

Does segregation in schools amount to discrimination?

The High Court ruled in Interim Executive Board of X School v HM Chief Inspector (HMCI) of Education, Children’s Services and Skills that segregation of girls and boys at a faith school was not inherently discriminatory.

An inspection report, which rated the school as ‘inadequate’, included criticism of the school’s policy to segregate pupils between the ages of 9 and 16. However, the High Court took exception to the HMCI’s assertion that such a move amounted to sex discrimination and therefore a contravention of the Equality Act (EqA) 2010. Instead they ruled that although the policy of segregation provided discrimination to the pupils, it provided discrimination in equal measure and therefore could not be said to provide either gender with a different or qualitatively poorer experience of education.

Accordingly, Mr Justice Jay held that the sex segregation could not be made to fit within the definition of direct discrimination. The HMCI had tried to use South African and US case law to demonstrate the discriminatory aspects of segregation but this was dismissed on the basis that that segregation had been used as a tool of direct oppression. The same could not be said of segregating children of different genders at a school when neither segregated gender suffered a lesser treatment than the other gender. In addition, the segregation is not enforced but elected by the parents who are fully aware of its implementation.

Comment: This case is also relevant to the employment sphere as the same definition for determining direct discrimination has been analysed; s.13 of the Equality Act 2010 states that ‘a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’

Employee Fraud

A branch manager at Savoy Auto Tyres in Hull fundamentally undermined the trust placed in him by his employer. Anthony Bowes, who had known and worked with the managing director Paul Palmer for more than 30 years, stole in excess of £25,000.

Mr Bowes began his series of fraud transactions by taking £240 in a cash payment on a set of tyres. Despite dishonest protests that it was another member of staff and adding “I would never do anything like that to you after all the things you do for me”, Mr Bowes eventually admitted fault due to a £800 debt. In response, Mr Palmer withdrew £600 from his personal account and told Mr Bowes he could keep it to resolve his problem.

Quite unbelievably, Mr Bowes continued to defraud the company who had been so lenient and generous to him. His fraudulent methods included:

  • Issuing quotes instead of invoices for cash transactions (with both having similar-looking documentations) and pocketing the cash;
  • Retaining payments for MoT tests by manipulating the two separate computer systems; and
  • Taking cash from the till when processing credit and debit card payments

By the time Mr Palmer checked the MoT records, there were 284 unaccounted transactions over the space of 14 months, worth approximately £11,000. Whilst reading his victim statement, Paul Palmer stated that Mr Bowes ‘was looked upon by all as our most trusted employee.’ Handing down the sentence of 18 months in prison, the judge told Mr Bowes that Mr Palmer “gave you chance after chance and you threw it back in his face.”

Comment: The pattern in this case is similar to a lot of employee fraud cases that we deal with. When fraudulent employees spot a vulnerable weak point in an organisation’s processes that they can exploit, their greed will take them back time and time again despite the potential consequences. Having effective checks and regular reviews on all financial procedures within your organisation, no matter how small the transactions that pass through them are, can help prevent and neutralise employee fraud early. On many occasions, it can be an employee in a position of trust and seniority that will be the culprit. Confirming employees have whistle-blower protection within your policies and staff handbooks is also extremely useful to combat fraudulent behaviour.

Immigration Legislation Update

Language requirement

On 21 November 2016 a new requirement (s.77) under the Immigration Act 2016 will be implemented.

This will require that workers in the public sector in customer-facing roles speak fluent English, and/or Welsh for public authorities in Wales.  It is also applicable to agency workers where the public-sector body is the hirer.

Guidance published by the Government is available here.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.