• Robert Spicer

New Employment Law Cases

RELIGIOUS DISCRIMINATION Sunday working Proportionate means of achieving legitimate aim Case Mba v The Mayor and Burgesses of the London Borough of Merton [2014] IRLR 145, CA Facts M was employed by the London Borough of Merton in a children’s home. The home was open seven days a week, 24 hours a day. M believed that her Christian faith required her to observe Sunday as a day of rest. During the first two years of her employment, she did not have to work on Sundays. In 2009 the council insisted that she should work on Sundays, in accordance with her contract. She failed to work on a Sunday and disciplinary action was taken. M resigned and complained of constructive dismissal and religion or belief discrimination. The employment tribunal stated that it should weigh the discriminatory impact upon M as against the reasonable needs of the employer. It concluded that the requirement to work on Sundays was proportionate. M appealed to the EAT. Decision 1. The appeal was dismissed. 2. Requiring an employee to work her contractually required hours on a Sunday was not discrimination. 3. Although the requirement caused those who shared her religious beliefs about Sunday working a particular disadvantage, the employer had shown that the requirement was a proportionate means of achieving a legitimate aim. M appealed to the Court of Appeal which dismissed the appeal and made the following points: 1. Given that it was unacceptable for some Christians to work on a Sunday, the ET should have found that applying this provision, criterion or practice put her at a disadvantage compared with other people who did not share her beliefs. Having done that, it should have gone on to look at whether the council could show a proportionate means of achieving a legitimate aim. 2. Once the council had established that it had no viable or practicable alternative way of running the children’s home effectively, there was only ever going to be one outcome to the case.

TUPE ETO reason Administrator Case Kavanagh and others v Crystal Palace FC (2000) Ltd and others (2014) Morning Star, January 17, CA Facts K and others were employed by C. C and its stadium went into administration. A buyer was found who wanted to purchase C and its stadium. The administrator made a number of employees redundant. A few days later, the buyer bought C and the stadium. K and others claimed that liability for their dismissals had passed to the buyer. The ET found that the dismissals were connected with the transfer and that the reason for the dismissals was the necessity to reduce the wage bill to keep the business running. This was an ETO reason and liability did not transfer to the buyer. K and others appealed to the EAT. Decision 1. The appeal was allowed. The dismissals had been for the purpose of selling the business, although it was not certain that there would be a sale, nor to whom the sale would be. C appealed to the Court of Appeal. Decision 1. Liability for dismissals did not pass to the purchaser where the administrator’s objective was to make the business more saleable. 2. Administrators will almost always have a transfer of the undertaking as their ultimate objective. If that was applied as the sole or principal reason for the dismissal, then the ETO exception would hardly ever apply in these types of insolvency. 3. It was only because negotiations for the parallel sale of the stadium dragged on beyond the time during which the administrators could continue to pay all the staff that these employees had to be dismissed.

WHISTLEBLOWING Detriment Case Abertawe Bro Morgannawg University Health Board v Ferguson [2014] IRLR 14, EAT Statute reference Employment Rights Act 1996, s. 47B Facts F, a GP, disclosed that a partner in her practice had acted incorrectly in prescribing a drug. She claimed that, because of this disclosure, her GP partners had caused her a detriment. She brought five detriment claims. The respondent applied to have three of the claims struck out. The ET refused the application. The respondent appealed to the EAT. Decision 1. The appeal was dismissed. 3. Section 47B states, in summary, that a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. The words “subjected to” were words of causation and did not require the actor to control the circumstances giving rise to the detriment. 4. The ET had been right not to strike out the claims in advance of hearing evidence of the detailed factual circumstances.

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