Discrimination and the burden of proof


Rihal v London Borough of Ealing [2004] IRLR 642



A tribunal upheld a race discrimination complaint made by a Sikh employed in a local authority housing department. The tribunal found that there was a 'glass ceiling' in the department, which made it difficult for those who were not white to attain senior management posts.


The Employment Appeal Tribunal (EAT) and the Court of Appeal upheld the tribunal's decision. In constructing a picture of how a hypothetical comparator would have been treated in comparable circumstances, a tribunal may have to look beyond the immediate circumstances of the incident about which the complaint is made.


On the facts, the tribunal is entitled to consider 'the wider picture' in determining whether racial factors were involved in the treatment of the employee. The fact that a manager whose conduct was complained of was found by the tribunal to be an 'honest and honourable man' was not inconsistent with his being unwittingly influenced by racial considerations. Lord Justice Sedley said: 'In a well-run organisation there will be procedures, training and monitoring data capable of reassuring a tribunal that everyone has been treated on an equal footing and that any imbalances are caused by fortuitous or extraneous factors.' For good measure, he added: 'The borough's funds might have been better spent on putting its departmental house in order [rather than endeavouring to] overset the employment tribunal's meticulous and cogently reasoned decision.'



Human rights



X v Y [2004] IRLR 625



The Court of Appeal upheld a tribunal's finding that an employee was fairly dismissed from a job working with youth offenders. The dismissal came after he had been cautioned for gross indecency with another man in a public toilet and failed to disclose the fact that he had committed a criminal offence to his employer.


A person's sexual orientation and private sex life fall within the scope of the right to respect for private life and the right to non-discrimination in respect of that right, but what is 'private life' depends on all the circumstances. If a dismissal was for the applicant's private conduct within article 8 of the European Convention on Human Rights, and was an interference with the right to respect for private life, that would be relevant to the determination of an unfair dismissal claim, whether or not the employer was a public authority.


Under section 3 of the Human Rights Act 1998, a tribunal, so far as is possible, must read and give effect to relevant provisions of the Employment Rights Act 1996 in a way that is compatible with convention rights. Section 3 applies to all legislation and draws no distinction between legislation governing public authorities and that governing private individuals.


However, in the present case, there was no incompatibility between the finding of fair dismissal and the applicant's human rights because his conduct did not take place in his private life nor was it within the scope of application of the right to respect for it. The conduct occurred in public; it was a criminal offence; and it led to a caution relevant to his employment and which should have been disclosed to the employer as a matter of legitimate concern to it.


Lord Justice Mummery observed that whenever Human Rights Act points are raised in unfair dismissal cases, the tribunal should properly consider their relevance, dealing with them in a structured way, even if it is ultimately decided that they do not affect the outcome. This framework was suggested: do the circumstances of the dismissal fall within the ambit of one or more of the articles of the convention?


If not, the convention right is not engaged. If they do, does the state have a positive obligation to secure enjoyment of the relevant convention right between private persons?


If not, the right is unlikely to affect the outcome of an unfair dismissal case against a private employer.


If it does, is the interference with the employee's convention right by dismissal justified?


If so, was there a permissible reason for the dismissal that does not involve unjustified interference with the convention right? If not, the dismissal will be unfair.


If interference with the employee's convention right by dismissal is justified, whether or not the dismissal is fair is tested by the provisions of section 98 of the Employment Rights Act 1996. They should be read and given effect under section 3 of the Human Rights Act 1998 so as to be compatible with the convention right.



Whistle-blowing



Street v Derbyshire Unemployed Workers Centre [2004] IRLR 687



An employee made various allegations against a colleague. Her allegations were investigated and the colleague exonerated of any wrongdoing.


The employer then dismissed the employee who had made the allegations, on the ground of gross misconduct and breach of trust. She claimed that she had been dismissed for making 'protected disclosures' and that her dismissal was automatically unfair.


A tribunal concluded that none of her disclosures were 'protected' because they had not been made in good faith, but were instead motivated by her personal antagonism towards the colleague. An appeal failed and the Court of Appeal also upheld the original decision.


The allegations of wrongdoing were not protected disclosures in terms of sections 43C and 43G of the Employment Rights Act 1996 because they were not made in good faith, even though the employee reasonably believed in the substantial truth of the allegations. 'In good faith' in this context means more than a reasonable belief in the truth of the information disclosed. A disclosure is not made in good faith if an ulterior motive is the dominant or predominant purpose of making it. The EAT was right not to interfere with the tribunal's finding, on the basis that the Public Interest Disclosure Act 1998, designed to protect 'whistle-blowers', does not seek to allow people to advance personal grudges, but rather to protect those who make certain disclosures of information in the public interest.



Workers



Redrow Homes (North West) Ltd v Roberts and others [2004] IRLR 720



The Court of Appeal upheld findings that bricklayers were employed under contracts by which they undertook personally to perform work or services for the company that engaged them. Accordingly, they were 'workers' for the purposes of the Working Time Regulations 1998.


Whether or not a contract includes an obligation to do work personally is determined by interpreting the contract in the light of the circumstances in which it was made. It does not necessarily follow from the fact that the work was done personally that there was a contractual obligation to do it personally.


However, on the facts here, the parties intended that the bricklayers should do the work personally.



By Martin Edwards, Mace & Jones, Liverpool