Gordons Legal Employment Update - 4 March 2019
Monday 4th March 2019
Can less favourable treatment based on the discriminator’s religion or belief form the basis of a direct discrimination claim?
No, according to the EAT in Gan Menachem Hendon v De Groen.
Direct religion or belief discrimination occurs when A treats B less favourably than A treats or would treat others because of religion or belief, or a lack of religion or belief.
Ms de Groen worked as a teacher in a Jewish nursery run on ultra-orthodox principles. It became known that she was living with her boyfriend. At a meeting to discuss this, both the headteacher and nursery managing director suggested that the arrangement was bringing the nursery into disrepute. They also opined that unmarried cohabitation was wrong, and that Ms de Groen was running out of time to have children and should consider counselling if the idea of marriage was objectionable to her.
A solution was suggested whereby Ms de Groen lied and told the nursery she was not cohabiting so that it could pass this information on to any concerned parents. When she refused to do this, the nursery dismissed her.
Decision and comment
This was one of the first applications of the Supreme Court’s ruling in Lee v Ashers Baking Company Limited (the ‘gay-cake’ case), in which the Court held that less favourable treatment arising because of the alleged discriminator’s beliefs cannot give rise to a claim for direct religion or belief discrimination.
In the present case, the EAT held that it was not the claimant’s lack of belief, but the manager’s own belief that led to the treatment being complained of. Accordingly, the claim had to fail because the discriminator would act in the same way towards anyone, and there would be no difference between Ms de Groen’s treatment and that of a comparator. The case is a useful illustration of how Ashers will work to limit the scope of claims for direct discrimination on grounds of religion or belief.
Dismissal motivated by personal reasons may still fall within TUPE
In Hare Wines Limited v Kaur, the Court of Appeal provided a reminder of the manner in which competing rationales for a decision to terminate will interact in the context of a claim for automatically unfair dismissal.
The dismissal of an employee will be automatically unfair if the sole or principal reason for the dismissal is a TUPE transfer.
Whether or not this is the case is a matter of fact for a tribunal to decide. If the employer can show that the dismissal would have occurred independently of the transfer, then it will not be automatically unfair (though it may of course be shown to be unfair for another reason).
Mrs Kaur was employed as a cashier for the respondent wine merchant. She had a difficult working relationship with one of her colleagues, Mr Chatha. In 2014, the business TUPE transferred to another entity, with Mr Chatha due to become director of the new business. Mrs Kaur’s employment was terminated on the day of the transfer.
Mrs Kaur argued that the sole or principal reason for her dismissal was the transfer. She said it occurred because she did not get on with Mr Chatha, and the business did not want him to have to manage her. The respondent denied this, arguing that Mrs Kaur was dismissed because she had objected to the transfer.
Decision and comment
The Court of Appeal agreed with the decisions of the Employment Tribunal and EAT. It noted that where there is a factual dispute the ET was perfectly entitled, as it had done, to prefer the employee’s version of events to that of the employer. The Court pointed to the fact that Mrs Kaur was dismissed on the day of the transfer which, while not fatal to the employer’s case, was strong evidence that the dismissal was linked to the transfer. It also noted that problems between Mrs Kaur and Mr Chatha had been ongoing for some time with no previous efforts having been made to terminate her employment. The inference from this was that the dismissal occurred at the request of the transferee.
While this case does not change the case law, it reminds employers that they should not be tempted to use a business transfer as an opportunity to dismiss an employee with whom there are existing issues. Addressing problems when they arise in a consistent manner will save time and money in the longer term. The decision also illustrates that simply having a personal reason for terminating a contract of employment will not necessarily take such a dismissal outwith the scope of TUPE.
Government moves to strengthen Pensions Regulator
The Government will seek to introduce new legislation to make ‘wilful or reckless behaviour’ in relation to pension schemes a criminal offence.
The proposal, in response to a consultation to improve The Pensions Regulator’s powers, would aim to prevent and penalise mismanagement of pension funds. Individuals who wilfully or recklessly mishandle pension schemes and endanger workers’ pensions could face up to seven year’s imprisonment and/or an unlimited fine. Failure to comply with a contribution notice will be punishable by an unlimited fine.
Sarri sorry Kepa kept keeping: Implied terms in the employment contract
The refusal of Chelsea goalkeeper, Kepa Arrizabalaga, to be substituted by his manager, Maurizio Sarri, during the recent Carabao Cup final between Chelsea and Manchester City, raises an opportunity to consider implied duties in employment contracts.
As penalties loomed, Kepa appeared to be struggling with cramp for the second time in the match. The reserve goalkeeper, apparently something of a penalty specialist, was instructed to warm up. Come in number 1, your time is up. Kepa’s response? To stand his ground in the middle of the pitch fervently gesticulating to his manager that he wanted to remain. After several of the more confusing minutes in football, Kepa kept on.
Employees have a common law duty to obey the reasonable and lawful instructions of the employer, in this case Chelsea FC acting via Mr Sarri. It is this duty that lays the foundation of managerial authority in running a business day-to-day. While an instruction might not be reasonable if it conflicts with the nature of the contract, there does not appear to be anything illegal or unreasonable about a request to substitute a sportsperson.
‘But what of the duty to be adaptable?’ I hear you cry! Perhaps Mr Arrizabalaga was unaware of his obligation to adapt to new working methods, in this case the need for him to sit out the remainder of the fixture. It does not appear that his colleagues on the pitch were forthcoming with advice to vacate the field. A timely reminder to pick a lawyer at left back, perhaps…
Presumably an implied duty of mobility could also have applied here on grounds of business efficacy, in which case the change of place of work, from between the sticks to the bench, could well have been a reasonable one.
We cannot speak to Kepa’s motives. It is presumed that these were good to the extent that he sought personal as well as collective glory through the accumulation of silverware. Bear in mind, however, that if dressing room discontent motivated him to attempt to disrupt his employer’s business, he might have found himself in breach of that particular duty as well.
There were plenty of scathing post-match remarks about the player’s attitude, but thanks to the topsy-turvy world of football, it will more likely be the authority-lacking Mr Sarri who will feel the brunt of any fallout.
By the by, Chelsea lost 4-3. We will not comment on the implied duty to exercise reasonable care and skill…
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.