Discrimination, Indirect on the grounds of religion

A curious decision by the Appeal Tribunal who overturned the Employment Tribunal’s decision that a teacher was not discriminated against on the grounds of her religion.  This case reminds us all how indirect discrimination can be present in the most surprising of places. The facts are that a head teacher was dismissed after being convicted of having indecent images of children and voyeurism. The Head’s wife was a teacher, who worked for a school in Derbyshire. That school insisted she divorce her husband. She refused and was sacked.  The dismissal was held to be unfair. However, the wife also brought a claim for indirect religious discrimination. She argued that she was disadvantaged because her religion made her regard her marriage vows as sacrosanct. The Appeal Tribunal reasoned that dismissing those who choose not to end a relationship with a person convicted of making indecent images and voyeurism was a “practice” which could be applied equally to all (regardless of their religion) but that would place the employee at a disadvantage because of her religion, and would have the same affect upon that “group”.  Therefore indirect religious discrimination was established. What we find notable about the case, is the way indirect discrimination can lurk unnoticed, and indeed unintended.  The lesson is to consider carefully any situation in which the employee mentions any of the protected characteristics. Those characteristics might include childcare, political views, ongoing illness or marriage. It is also notable that this same case could theoretically have been brought by the same employee for indirect discrimination based on marital status, or even sex. The case can be read in...

High heels and sexism at work

The headlines may have caught your eye in relation to the employee sent home for wearing high heels. So what is the legal position for employers? A sensible dress code imposed by employers is reasonable and to a certain extent can be sex specific. For example, you might require men to wear suits and women to wear a dress. In a job as waiting staff for example, that would seem normal to us all, and the fact that the expectation differs a little will not create an offence. There are cases where tribunals have not agreed that the requirement for men to wear a tie is sexist simply because women were not required to wear one. So the law allows for differing standards of dress. However, as always it will depend on the context. High heels may be a requirement that is reasonable for a model for example, if part of the job is to look sexy. However, for a receptionist, in spite of what some may think, the job is not to look sexy. Therefore high heels cannot be justified. There might be a defence if both men and women are required to wear them, but you can see how bizarre it would quickly become. The risk to employers is simple. If you cannot justify it as part of the role, it is likely a woman could establish the requirement humiliated her on the grounds of her sex.  The author doesn’t know from personal experience, but is told by his wife that it might also lead to a personal injury claim! The amazing thing about the case in...

Unfair dismissal and constructive dismissal

It has long been good law that someone who resigns when they fail to negotiate a good enough deal for their departure cannot succeed in a constructive unfair dismissal case.  This is because such a reason for resignation cannot repudiate the contract. This has lead in the past to practitioners mistakenly believing that an employee cannot win a constructive dismissal case if they resign during negotiations. The case below shows this to be a mistake. In the case of Gibbs v Leeds United FC, an assistant manager who expected to leave in due course following the main manager’s departure was negotiating to find a mutually acceptable departure. During these negotiations the club took his first team duties away from him and assigned him to the junior team and he was excluded from first team training. He resigned as a response. Because his resignation was in response to the Club’s lowering of his status without consent he could proceed with his constructive unfair dismissal case which on this occasion amounted to a claim for notice pay only. The fact that he was negotiating a departure at the time was not relevant because he was willing to work and carry out his duties. The case can be read in full at the following link: http://www.bailii.org/ew/cases/EWHC/QB/2016/960.html   Back to legal...