Victimisation
St Helens Metropolitan Borough Council v Derbyshire and others (2005) IRLR 801


The Court of Appeal allowed an appeal against the decision of the Employment Appeal Tribunal (EAT) reported at (2004) IRLR 851.


The majority held that a tribunal erred in law in finding that, in writing letters to claimants warning them of the consequences of continuing their equal-pay claims, a council had victimised those employees. The tribunal was wrong to distinguish the case from Chief Constable of West Yorkshire Police v Khan (2001) IRLR 830, in which the House of Lords held that an employer may take honest and reasonable steps to safeguard its position in 'protected' proceedings without infringing the victimisation provisions.


The basis for the distinction was that in this case the employers did not merely seek to avoid prejudicing their position in the litigation, but wanted the claimants to abandon their claims. However, if employers facing equal-pay proceeding could not take steps to try to persuade claimants to settle their claims without infringing the victimisation provisions, their ability to take reasonable steps to protect themselves in litigation would be much reduced as compared to the case in non-protected litigation.


Therefore, the case was remitted to the tribunal to determine whether the conduct complained of was an honest and reasonable attempt by the employers to compromise the proceedings.




Race discrimination

Redfearn v Serco Ltd t/a West Yorkshire Transport Service (2005) IRLR 744


The employers dismissed a bus driver who was a British National Party (BNP) candidate 'on the grounds of health and safety'. This was said to be because of the fear of violence or anger from other employees; the feared reaction of Asians with whom the driver might travel or assist in the course of his work; and general annoyance or anger against the employers or the driver himself by virtue of his BNP membership. He claimed to have been discriminated against, contrary to the Race Relations Act 1976.


A tribunal rejected his claim, but the EAT allowed his appeal, despite acknowledging that 'it does not at first sight strike the outsider as straightforward that someone who is a member of the BNP... is making use of race relations legislation in his favour'. The tribunal was wrong to distinguish the wide construction of the words 'on racial grounds' in the Act, which emerges from previous authorities such as Showboat Entertainment Centre v Owens (1984) IRLR 7.


In finding that the reason for dismissal was health and safety and not on racial grounds, the tribunal was also wrong to fail to consider whether those health and safety grounds themselves were significantly influenced by considerations of race. Nor was there any apparent critical evaluation by the tribunal of the employer's case with regard to health and safety. An alternative view is that expressed by the editor of the IRLR, namely, that there is no tainting on 'racial grounds' merely because 'a racial element formed part of the context in which the decision was taken'.




Exhibitionism, discrimination and dismissal

Edmund Nuttall Ltd v Butterfield (2005) IRLR 751


An employee, dismissed after his employer discovered that he had been convicted of offences of indecent exposure, succeeded before a tribunal with claims of disability discrimination and unfair dismissal. The EAT allowed an appeal against the finding of discrimination on grounds of disability. The tribunal was wrong to reason that, although 'exhibitionism' is an excluded condition under the Disability Discrimination (Meaning of Disability) Regulations 1996, in this case exhibitionism was a manifestation of a mental impairment, depression, and had the claimant not had a mental illness, he would not have committed the criminal offences.


The critical question is - what was the reason for the less favourable treatment? In this case, it was clear that the sole reason for dismissal related to the excluded condition, not to the legitimate impairment. The finding of unfair dismissal was upheld, but not the finding that the claimant had not contributed to his own dismissal by his conduct. Committing pre-planned offences and then concealing the true position from the employer was plainly culpable conduct.




Constructive dismissal

Land Securities Trillium v Thornley (2005) IRLR 765


A tribunal held that employers constructively and unfairly dismissed an employee by imposing a new job description that changed her duties from a hands-on role to a mainly managerial role, with the effect that she was de-skilled as an architect.


The EAT rejected an appeal. In determining what the employee's existing contractual duties were, the tribunal was entitled to look not only at how the duties were described in her original job description, but also how they operated in practice, including the actual work that the claimant had been given.


As Mr Justice Cox said: 'Job descriptions are not prescriptive documents. They frequently fail to represent, or represent either accurately or fully, the actual duties in fact undertaken... and the duties are often described in vague terms so that, when interpreting them, a tribunal is required to put some flesh on the bones... in order to understand what exactly the employee's duties comprise.'


By Martin Edwards, Mace & Jones, Liverpool and Manchester