On Notice
March 2009
Authors:
Paul Callegari
paul.callegari@klgates.com
+44.(0)20.7360.8194
Jackie Cuneen
jackie.cuneen@klgates.com
In this month’s On Notice, we report on the EAT decisions in Eastern &
Coastal PCT v Grey (when an employer is exempt from making
reasonable adjustments for disability), Eweida v BA and Chondol v
Liverpool City Council (both on religious discrimination), Zimmer v Brezan
(requirements of the statutory dismissal procedure) and the significant
Court of Appeal decision in Tradition Securities v Mouradian (ET claims
relating to deductions from bonuses).
+44.(0)20.7360.8184
Employer exemption from making reasonable adjustments
Noel Deans
noel.deans@klgates.com
+44.(0)20.7360.8187
The Employment Appeal Tribunal (EAT) has provided guidance on when an
employer is exempt from the obligation to make reasonable adjustments under the
Disability Discrimination Act 1995 (DDA).
Lisa Perelman
lisa.perelman@klgates.com
+44.(0)20.7360.8256
Daniel Wise
daniel.wise@klgates.com
+44.(0)20.7360.8271
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In Eastern and Coastal Kent PCT v Grey, the claimant, who worked as a nurse, was
dyslexic and therefore disabled under the DDA. She applied for promotion and told
her employer that she was dyslexic. The interview process involved making a
presentation. No special arrangements were made for the claimant. She scored badly
on the presentation compared to the other candidates and did not get the job. The
issue was whether the employer had to make reasonable adjustments for her during
the course of its interview process.
There are four criteria listed in the DDA relating to when an employer will be
exempt from making reasonable adjustments. Importantly, the EAT decided that all
four criteria must be satisfied before the employer can be exempted. Nothing less
will do. The criteria are that the employer:
a.
Does not know that the employee has a disability;
b. Does not know that the disabled person is likely to be at a substantial
disadvantage compared with others who are not disabled;
c.
Could not reasonably be expected to know that the person had a disability;
and
d. Could not reasonably be expected to know that the disabled person is likely
to be placed at a substantial disadvantage in comparison with persons who
are not disabled.
The implications for employers are clear. Employers should particularly note that as
soon as (a) is fulfilled – i.e. an employer knows that an employee has a disability the employer will not be exempt and will be under a duty to make reasonable
adjustments. Further, an employer is not exempt if it could reasonably be expected to
know that an employee suffered a disability – (c)Therefore, employers should
consider the obligation to make reasonable adjustments in cases where an
employee’s disability comes to its attention, even where this has not
been made explicit.
For more information on this please contact Daniel Wise.
On Notice
Uniforms at work and religious
discrimination
as to whether something is a mandatory part of a
particular religion.
In Eweida v BA (a case that has received much
attention in the press), the EAT was called on to
decide whether British Airways’ uniform policy was
discriminatory on religious grounds under the
Employment Equality (Religion or Belief)
Regulations 2003.
For more information on this please contact Paul
Callegari.
The uniform policy prohibited staff from wearing
visible jewellery. The employee argued this
discriminated against her because it prevented her
from wearing a visible cross - a symbol of her
evangelical Christianity.
The Employment Tribunal (ET) dismissed her claim
on the basis that anyone wearing such a symbol, or
indeed jewellery of any kind, would have been
treated in the same way regardless of their religion.
This was on the basis that wearing the cross was not
mandatory according to the Christian faith. The
policy did not put her at more of a disadvantage than
someone of a different (or of no) faith. Further the
policy did not indirectly discriminate against
Christians as it did not put Christians at a particular
disadvantage compared with other religions.
The employee appealed. The EAT upheld the ET’s
reasoning. The EAT added that for there to be a
discrimination claim, persons of the same religion or
belief must suffer the disadvantage as a consequence
of holding that religion or belief. However, in this
case there was no evidence that other people shared
the claimant’s religious conviction about openly
displaying a cross and no evidence that the
disadvantage she suffered was as a result of religion
as opposed to a personal preference on her part.
The case is significant for employers because it
emphasises the different treatment of visible
symbols of religious faith that are mandatory under
that faith (which were allowed under the British
Airways’ policy) and voluntary expressions of that
faith by individuals. If a uniform policy prohibits
something which is merely a voluntary expression of
faith, not mandated by religion, a claim for religious
discrimination is unlikely to succeed. Of course, this
will not always be a straightforward assessment for
employers to make since questions may still arise
Imposing religious views and religious
discrimination
The EAT has provided further guidance on what
constitutes religious discrimination in the case of
Chondol v Liverpool City Council.
In this case, the claimant was a social worker and a
committed Christian employed by the local council.
The employer’s policy was that employees were
prohibited from overtly promoting their religious
beliefs at work. Contrary to these instructions, the
claimant on two occasions attempted to impose his
Christian beliefs upon clients he was working with.
A dismissal meeting was held to address the
claimant’s contravention of the policy, as a result of
which the claimant was dismissed. The claimant
claimed that his dismissal amounted to
discrimination on the grounds of his religion
contrary to the Employment Equality (Religion or
Belief) Regulations 2003.
At the appeal, the EAT held there was a distinct
difference between being adversely treated because
of religion or in this case because the claimant had
attempted to impose those views on others. In this
case, the claimant had been dismissed not on the
grounds of his religious beliefs but as a result of his
inappropriate promotions of those beliefs in direct
conflict with his employer’s policy.
Employers need to be wary when they dismiss on
similar grounds to ensure that they can satisfy the
ET that the true reason for the dismissal is the
imposition of views and not, in fact, the employee’s
religious beliefs.
For more information on this please contact Lisa
Perelman.
March 2009
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On Notice
Requirements for step 1 dismissal
letter
In the recent case of Zimmer v Brezan, the EAT
considered the requirements for a valid step 1
dismissal letter.
The employer had become concerned over the
employee’s mileage and expense claims. The HR
director sent the employee an e-mail asking him to
attend a disciplinary meeting aimed at discussing the
claims. The e-mail referred to the employee’s right
to be accompanied and attached a copy of the
employer’s disciplinary policy. Two weeks after the
meeting the employee was dismissed for
misconduct. The employee claimed that he had been
automatically unfairly dismissed because the
employer’s e-mail did not comply with step 1 of the
statutory dismissal and disciplinary procedures –
because it failed to state that the employee was at
risk of dismissal.
The employee’s argument succeeded before the ET
and the EAT agreed. The EAT emphasised that it is
mandatory for an employer to notify the employee
that it is contemplating dismissal in a step 1
dismissal letter. Failure to put the employee on
notice will result in a finding of automatic unfair
dismissal. Unless an employee could deduce that he
was at risk of dismissal from the step 1 letter, then
the letter has failed to achieve the purpose for which
it was devised. The EAT rejected the argument that
it could be inferred that the employee knew that the
reason for the letter was dismissal as the employer
had attached their disciplinary code to the
step 1 letter.
Although the statutory dismissal and disciplinary
procedures are set to be repealed by the Employment
Act 2008 on 6 April 2009 (which has been
summarised in a previous edition of On Notice), they
remain in force for the time being and there may
also be a transitional period when they remain in
force. It remains important for employers to be
aware of their requirements.
Even after the repeal of the statutory dismissal and
disciplinary procedures, employers would be well
advised to keep using step 1 letters (even if they no
longer need to be called step 1 letters) to start a
disciplinary procedure and make the reference to
possible dismissal explicit - as the new ACAS Code
to Disciplinary and Grievance Procedures suggests
this is good practice. Failure to follow the new
ACAS Code can result in an uplift of up to 25% in
any award made by an ET.
Certainly in imposing this obligation as a straight
jacket upon both employer and Tribunal, this case
aptly demonstrates the need for change. One hopes
that the post-April 2009 regime will at least offer
Tribunals the chance to exercise their discretion in a
fact sensitive manner on issues such as this.
For more information on this case please contact
Noel Deans.
ET can hear claims for deductions
from bonuses
The Court of Appeal has recently considered, in
Tradition Securities & Futures SA v Mouradian,
whether Employment Tribunals can hear claims
relating to deductions made from bonuses under the
unlawful deductions from wages provisions in the
Employment Rights Act 1996.
In this case, the claimant employee worked in the
City. He traded futures and options. Under his
contract of employment he was entitled to a bonus.
This was paid from a pool made up of a set
percentage of his team’s entire net billed income.
Any bonuses paid to the team were made from the
pool after consultation with the CEO, with the
balance to be awarded to the claimant. A dispute
arose when the claimant’s employer reduced the
size of the pool by making deductions which the
claimant said ought not to have been made. The
claimant brought a claim in the ET for unlawful
deduction of wages. The employer challenged his
right to do so and sought to have the claim struck
out on the basis that it could only be brought in the
High Court or County Court because the sum
claimed was for unquantified damages for breach of
contract and was therefore not a claim that could be
heard in the ET.
The Court of Appeal decided that the ET could hear
the claim as the amount of the bonus was for a
quantifiable sum of wages (in this case just over
£92,000). The amount could easily be deduced
when the pool figure was declared.
March 2009
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On Notice
The case is significant for employers in what is
likely to be a fertile source of litigation in the
coming months in particular for banks that are
subject to the recently announced Government caps
on bonuses. This can offer both sides an alternative
route in litigating depending upon the strategies they
are seeking to deploy.
responsible for its own legal costs, win or lose (in
the High Court and County Court, the loser usually
has to pay a significant proportion of the winner's
costs)That might suit either side in a
ny particular case.
For more information on this case please contact
Jackie Cuneen.
Bringing a claim in the ET means the process is
generally less procedural in nature (and so quicker),
less formal and the general rule is that each side is
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March 2009
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