Discrimination, Harassment and Job Termination

Employment law scenarios including discrimination, harassment and job termination.

Question

PBJ Co is a consultancy based in the North of England but operating nationally and internationally. Some years ago it adopted non-contractual grievance, disciplinary and dismissal procedures based on the then statutory model. It claims to be “an equal opportunities employer” and has a harassment policy, which lists examples of behaviour that could amount to harassment and details the action that will be taken against staff. All employees are entitled under their contract to 3 months’ notice.

A number of issues are causing concern.

Jacob has worked for the firm for nine years and a half years and is now 45. He doesn’t get on with the new Managing Director and has been dismissed by him with due notice. When he asked why he was being dismissed, in a meeting between the two of them, the MD told him ‘it’s because you’re a Catholic and I’m now in charge – and if you tell anybody I said that I’ll deny it and you won’t be able to prove it’. The firm provides mobile devices and recording apps to a number of its staff for use in the business and Jacob had covertly recorded the meeting. Sebastian is a 21 year old who started working for the firm eight months ago. In the course of reviewing files he was given, he has discovered that some of the employees who provide consultancy for overseas clients have been paying and receiving bribes. He was told to ignore it by his line manager but felt he should report it to the Managing Director due to the criminal nature and reputational threat to the firm. The Managing Director subsequently dismissed him with a week’s notice.

Gerry, who is 43, is a middle level manager and has ambitions for promotion. Two months ago he was away on business with Becca, a senior manager from a different division. She had a lightly flirtatious style with many colleagues but Gerry was surprised when she followed him back to his hotel room following a business dinner and leaning into him appeared to say that she could help his career if they came to a temporary reciprocal arrangement. Mal is 45 and has been subject to many taunts and teasing by colleagues who have found out that Mal is an objectophile.

Elizabeth, 59, is one of a number of team leaders and the only woman at that level. She has discovered that she is being paid less than some of the other team leaders. Mark, is 54 and has North African ancestry, is another team leader and he too is being paid less. Nick has worked for the firm for 12 years and has become increasingly fat. He cannot walk up flights of stairs without becoming short of breath because of his size (his weight has hit 26 stone/165 kg). He has recently applied for a promotion but has been told he does not reflect the right image.

Answer

The simplest method by which to deal with the issues raised in this scenario is to consider the position of each of the individuals in turn. This process will inevitably lead to some degree of overlap in respect of the legal provisions and therefore these will not be repeated in each instance.

Jacob

There are two potential issues that rise out of the treatment that resulted in Jacob’s dismissal. These relate to whether the dismissal is considered unfair under the provisions of the Employment Rights Act 1996 (ERA 1996) and also whether, because Jacob’s dismissal is related to his religion, whether he will be able to bring a claim under the provisions of the Equality Act 2010 (EA 2010). Whilst it is clear that the nature of these potential remedies is inevitably linked by the facts, it remains necessary to deal with each statue and its subsequent remedies in turn.

Unfair Dismissal

Section 94(1) of ERA 1996 provides that all employees have the right not to be unfairly dismissed. This right only arises however if the employee has been in continuous employment with their employer for at least two years (ERA 1996, s 108). This time limit is satisfied here.

Even though the right exists, there are certain circumstances in which an employer is permitted fairly to dismiss an employee (ERA 1996, s 98). The first four of these permitted reasons are contained with section 98(2) of ERA 1996 and relate to an employee’s capability or qualifications, conduct, whether the employee could be considered redundant or whether to continue to employ them would require the employer to contravene statute. There is no apparent concern in respect of these initial four reasons being relevant to Jacob’s dismissal.

The final potentially fair reason, contained within section 98(1) of ERA 1996, relates to there being some other substantial reason for the dismissal. The statute does not take any further steps to define some other substantial reason and therefore the matter has been left open to the courts. In this respect, it was held in Treganowan v Robert Knee & Co Ltd (1975) that a clash or personality between individuals could be considered some other substantial reason for these purposes. This, of course, is the reason that PBJ Co will plead if Jacob makes a claim, on the basis that Jacob’s inability to get along with his manager made the working relationship untenable and the dismissal necessary.

This, of course, is not the end of the matter here, largely because of the recorded evidence that Jacob has obtained in relation to his dismissal, which will be discussed below, but also because even where a potentially fair reason exists for a dismissal, the dismissal must still be substantively fair in the circumstances (ERA 1996, s 98(10)). In this respect, the court will look at the band of reasonable responses that a reasonable employer might take in dealing with an employee and, if dismissal falls within this band, will be obliged to hold the dismissal fair, irrespective of whether the court holds a different view (Iceland Frozen Foods Ltd v Jones (1983)).

It seems that from Jacob’s point of view, this issue will be relatively moot. This is because a court is willing to allow covert recordings into evidence if it believes that it is necessary in the interests of justice to do so (Vaughan v London Borough of Lewisham and ors (2012)). There seems very little doubt that the conversation that took place between Jacob and his manager in respect of the reason for Jacob’s dismissal is essential in ensuring that Jacob is provided with an appropriate remedy and therefore it seems extremely likely that the conversation would be admissible. The effect of this would be to remove any tenable defence and therefore mean that Jacob’s unfair dismissal claim would almost certainly succeed.

The Equality Act

The method by which the EA 2010 deals with employment matters is slightly convoluted in that the starting point is that an employer is forbidden to discriminate against an employee by dismissing them (EA 2010, s 39(2)(c)). Clearly dismissal alone cannot be discrimination and therefore in order for the dismissal to be discriminatory for these purposes, it must fall within the context of the employer’s treatment of the employee. In this respect, an employer discriminates against an employee if they treat them less favourably because of a protected characteristic that the employee possesses than they would an employee who does not possess that characteristic (EA 2010, s 13). Religion is a protected characteristic for these purposes (ERA 2010, s 10) and, since it appears that the sole reason for Jacob’s dismissal was his religion, it must be assumed that he would not have been dismissed if his religion were different. The result of this, given the likelihood of the recorded evidence being admissible, is that Jacob would also be able to successfully claim under this Act.

Given that Jacob has two potential claims and that the chance of success is high in each, it seems reasonable, before moving on, to briefly consider which claim would be most appropriate. Whilst damages are available under both types of claim, these are limited under an unfair dismissal claims to the financial loss of the claimant (Dunnachie v Kingston-upon-Hull City Council (2004)). By contrast, claims under the EA 2010 are not limited in this respect and Jacob may be able to recover, in addition to any pecuniary loss suffered, sums in respect of any injury to feelings that the discrimination caused (Marshall v Southampton and South West Hampshire Area Health Authority (1986)). However, where a claim for unfair dismissal is successful, the court is able to require an employee to be reinstated or re-engaged by their employer (ERA 1996, ss 114 & 115). Whilst such a requirement is potentially available under an EA 2010 claim (EA 2010, s 124(3)), the courts have largely unwilling to make such orders (see North West Thames RHA v Noone (No 2) (1988)).

It seems therefore that the choice of claim made by Jacob rests on whether he wishes to return to work. If he does he should seek this remedy under ERA 1996, but if he does not, he should claim under EA 2010 because he may potentially be entitled to greater damages under this Act.

Sebastian

Like Jacob, Sebastian has been dismissed, but unlike Jacob, Sebastian has not been employed by PBJ Co for a sufficiently long period to be able to bring an unfair dismissal claim in ordinary circumstances. This would limit his claim to one of wrongful dismissal and, since this only allows contractual pay to be recovered (Addis v Gramophone Co Ltd (1909)), would be pointless in the circumstances because a contractual notice period has been given.

The situation is somewhat different in this context however. This is because the reason for Sebastian’s dismissal appears to be directly related to his disclosure of the bribes being taken by some employees to the managing director. This disclosure relates to potentially criminal acts (ERA 1996, s 43B(1)(a)) and therefore falls within the category of a protected disclosure (ERA 1996, s 43A). In essence, it is a disclosure of a type that ought to provide an employee with protection from dismissal. The result of this is that Sebastian’s dismissal will be automatically unfair (ERA 1996, s 103A).

Gerry

The issue in respect of Gerry does not, on the face of it, fall within the category of issues that relate to receipt of detrimental treatment by an employer. That is, Becca has not stated that she will not promote Gerry unless he engages in a ‘reciprocal arrangement’ with her, but rather she could help his career if he does. In this respect, the issue relates to whether Becca, and therefore PBJ Co vicariously (EA 2010, s 109(1)), will be considered to have harassed Gerry.

Harassment occurs when an individual engages in conduct that is relevant to a protected characteristic that has the effect of causing an intimidating, hostile, degrading, humiliating or offensive environment or has the effect of violating another’s dignity (EA 2010, s 26(1)). For these purposes, given the implied nature of Becca’s request, it seems that the relevant protected characteristic will be Gerry’s sex (EA 2010, EA 2010, s 11).

The question of whether this kind of circumstance arises is largely a question of fact. This is because the issue takes into account the claimant’s reasonably held views on the effect of the behaviour (EA 2010, 26(4)). The facts are silent on this point, but if Gerry was felt that his dignity was violated by Becca’s actions, providing this feeling is a reasonable one, he will be able to assert that he was harassed by Becca and will be able to bring a claim against his employer.

Mal

Whilst Mal’s objectophelia falls ordinarily within the category of sexual orientation, the EA 2010 definition of sexual orientation only applies to sexual orientation towards individuals of the same or opposite sex (EA 2010, s 12). The result of this is that Mal’s sexual orientation is not a protected characteristic under the EA 2010 and he will be unable to rely on it to bring a claim in respect of the treatment he is receiving.

Elizabeth/Mark

The facts in relation to Elizabeth and Mark are closely linked and therefore can be considered collectively. In Elizabeth’s case, sex is a protected characteristic (EA 2010, s11 ). Therefore, if she is being treated less favourably because of this protected characteristic, she will be being discriminated against. The problem in this context is that in order for treatment to be less favourable, rather than simply unfavourable, the treatment must be compared against a person who does not possess the characteristic. All that is required in this context is that the comparator’s circumstances are materially the same as the claimant’s, save for the protected characteristic (EA 2010, s 23(1)). In this respect, there seems little doubt that PBJ Co will attempt to assert that the appropriate comparator for Elizabeth is Mark. This is because he receives the same level of pay. Fortunately for Elizabeth, the choice of comparator is hers (see Harvey on Industrial Relations and Employment Law) and, since only one comparator is needed (EA 2010, s 23(1)), she will be able to choose a male counterpart who receives higher pay.

The position in respect of Mark is slightly less complicated, in that he will attempt to rely on the protected characteristic of race (EA 2010, s9 ) in order to bring a claim. In both circumstances however, the existence, despite the relevant protected characteristics, of more than one individual who is receiving lower pay complicates matters slightly. This is because the protected characteristic must be the reason for the lower pay, although it need only be one of several reasons (R (on the application of E) v JFS Governing Body (2009)). The result of this is that PBJ Co will inevitably attempt to assert that the protected characteristic is not the cause of the lower pay because another without it is also receiving the same level of pay. Despite this, it seems that PBJ Co would need to be able to demonstrate another reason for both parties’ lower pay and, if it cannot do so, both parties will be able to bring a successful claim.

Nick

The European Court of Justice recently held that obesity should be considered to be a disability for the purposes of the EA 2010 (FOA, acting on behalf of Karsten Kaltoft v Billund Kommune (2015)). Again the facts are somewhat limited in this context, but it seems that Nick will be able to claim that he has been treated less favourably, in terms of not reflecting the right image, when failing to gain promotion and that this less favourable treatment is based on his disability, which is of course a protected characteristic (EA 2010, s6 ). Additionally, although there is no indication that Nick has raised this point, an employer is required to make reasonable adjustments to accommodate an employee with a disability (EA 2010, s 20). Therefore, it could be suggested that PBJ Co should take steps to mitigate the difficulties that Nick has climbing stairs, perhaps by ensuring that all of his work is carried out on the ground floor.

In either event, it seems probable that Nick will be able to rely on the provisions of the EA 2010 to ensure that he is not treated less favourably, both in terms of accommodating his disability and his promotion prospects, by his employer.

Cases

Addis v Gramophone Co Ltd [1909] AC 488

Dunnachie v Kingston-upon-Hull City Council [2004] UKHL 36

FOA, acting on behalf of Karsten Kaltoft v Billund Kommune [2015] IRLR 146 ECJ

Iceland Frozen Foods Ltd v Jones [1983] ICR 17

Marshall v Southampton and South West Hampshire Area Health Authority [1986] QB 401

North West Thames RHA v Noone (No 2) [1988] ICR 813

R (on the application of E) v JFS Governing Body [2009] UKSC 15

Treganowan v Robert Knee & Co Ltd [1975] ICR 405

Vaughan v London Borough of Lewisham & ors UKEAT/0534/12/SM

Legislation

Employment Rights Act 1996

Equality Act 2010

Books

Harvey on Industrial Relations and Employment Law (Lexis Library)

Other sources considered but not directly cited

Emir, A (2014) Selwyn’s Law of Employment 18th edition Oxford: Oxford University Press

Pitt, G (2011) Employment Law 8th editionn London: Sweet & Maxwell

Sweet & Maxwell’s Encyclopedia of Employment Law (Westlaw)

Tolley’s Discrimination in Employment Law Handbook (Lexis Library)

Tolley’s Employment Law Service (LexisLibrary)