Gordons Legal Employment Update – 18 August 2017

In the last two weeks there have been a number of interesting decisions in the Employment Appeal Tribunal (the ‘EAT’) and High Court concerning religious and belief discrimination; vicarious liability; the burden of proof in discrimination claims and the neutrality (or otherwise) of the act of suspending an employee following allegations of misconduct.

Religion and Belief Discrimination

In Trayhorn v The Secretary of State for Justice, the Claimant was a Pentecostal Christian who worked as a Gardener/Horticulturalist in a prison.   He was also an ordained Pentecostal Minister and volunteered to help at services in the prison chapel.  During a couple of services, he elaborated upon a passage from Corinthians 6 and made remarks condemning homosexuality.  A number of complaints were made by prisoners who had attended the service and the Respondent carried out an investigation and then invited him to attend a disciplinary hearing.  The Claimant resigned from his position and brought claims for constructive dismissal and indirect discrimination on the grounds of religion and belief.

The Claimant argued on a number of PCPs for his claim for indirect religious discrimination; namely, whether Christians were singly or as a group disadvantaged by the Prison’s disciplinary and equality policies and whether the practice of not discussing homosexuality and Christian ethics amounted to religious discrimination.  The Employment Tribunal dismissed his claims.

The Claimant appealed to the EAT, who dismissed his appeal, holding:

• There was no evidence that the Tribunal decision not to uphold the Claimant’s complaint was incorrect.  The reason for his treatment was not the manifestation of his belief, but the manner in which he had done so, which went far beyond a mere quotation of the scripture;
• Whilst there was no need to consider whether the PCPs pursued a legitimate aim, the EAT would have found that the aims of order and national security were both wholly legitimate aims.

Comment:  This case demonstrates that in religious and belief cases in particular, there is often a fine line between whether any less favourable treatment (such as disciplinary action or dismissal) is on the grounds of the manifestation of a belief, or on the basis of the manner in which an employee chooses to manifest their religion or belief.

Vicarious Liability

In Various Claimants v Barclays Bank PLC, the 126 Claimants were applicants for employment or employees of the Bank and alleged that they had been sexually assaulted by a doctor who was carrying out a medical assessment and examination on behalf of the Bank.

A preliminary issue arose as to whether or not the Bank was vicariously liable for any of the assaults.  The High Court determined that the Bank was vicariously liable because:

• The assaults had been committed as a result of the activity being undertaken by the doctor on behalf of the Bank.  The Bank controlled the doctor as to what he did, even though they did not direct him how he should do it;
• There was a sufficiently close connection between the assaults and the carrying out of the doctor’s duties;
• It was just and reasonable to impose vicarious liability, as this was now the Claimants’ sole recourse as the doctor was now deceased and the complaints had taken place a long time ago.

Comment:  This case serves as a useful reminder that in some circumstances employers can be held liable for the acts of third parties, even when the alleged acts are carried out in secret and the employer cannot reasonably be expected to be aware of them.

Burden of Proof

In Efobi v Royal Mail Group Limited, the Claimant, who was employed by the Respondent as a Postman, applied for an IT job within the Respondent’s organisation on more than 30 occasions, with his application being rejected each time.  He brought a claim for race discrimination on the ground that he felt the reason for his rejection was that he was black African.  The Employment Tribunal dismissed his claim and held that he had not proved facts from which it could conclude there was discrimination.

The EAT held that the Employment Tribunal had incorrectly applied the burden of proof provisions under s.136 Equality Act 2010 and held:

• There is no initial burden imposed under s.136 Equality Act on Claimants being required to establish a ‘prima facie’ case of discrimination;
• An Employment Tribunal should consider all of the evidence from all sources, at the end of the hearing to decide whether there are facts to infer discrimination;
• That if there are such facts to make the inference of discrimination, then without an explanation from the Respondent, the complaint of discrimination must be upheld;
• In this case, the EAT was not satisfied that the Tribunal had properly appreciated the effect of s.136 and that the Claimant had not been required to “prove things that he was neither required, nor able to prove”, such as the race and national origins of the successful candidates.

The case was remitted to a differently constituted Employment Tribunal.

Comment:  This is an interesting case (for lawyers at least!), as it is a significant departure from how the burden for proof has been interpreted in previous cases.  However, the previous decisions were made under the earlier legislation (such as the Race Relations Act), which had different wording from the Equality Act 2010.

Suspension – a neutral act?

In Agoreyo v London Borough of Lambeth, the Claimant was a teacher, who was suspended from work because of the force she used in respect of three incidents involving two children.  She was told that the reason for her suspension was to “allow the investigation to be conducted fairly”.  She was not asked for her response to the allegations before the suspension took place, nor was there any evidence that consideration had been given to any alternatives to suspension.  The Claimant resigned that day and brought a claim for damages for breach of contract in the High Court.

The High Court held:

• Suspension was not a neutral act, at least in the context of a qualified professional in a vocation, such as a teacher;
• Suspension was adopted as a knee-jerk reaction as the default position;
• The stated reason for suspension was to “allow the investigation to be conducted fairly” rather than for the protection of children;
• In this case, the employee’s suspension amounted to a repudiatory breach of contract.

Comment:   This case highlights the importance of not automatically suspending an employee simply because serious allegations have been made against them, particularly when the employee in question is a qualified professional.

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

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