This is the case in which former Apprentice winner Stella English sued for constructive dismissal. I blogged here how it was difficult to understand from the press reports just what the case was actually about. Now that we have the actual decision, things have become much clearer.

What Happened

First, the facts. Ms English was employed by Viglen Ltd, one of the companies within Lord Sugar’s Amshold Group Ltd (AG). She actually started work at Viglen before she won the Apprentice as there was a gap between the end of filming and the actual decision being made. In the meantime both finalists were employed in different AG Ltd companies on  a temporary basis.

This means that although she left before the end of her 12 month contract, she did have a year’s service if you include the months she spent working for Viglen before winning the competition  I’m glad that’s sorted out, because that point had been bugging me.

When she was announced as the winner, she was given a one-year contract with a salary of £100K and she continued to work with Viglen. The contract started in January 2011.

She submitted a resignation in May 2011 without having any other job to go to. Lord Sugar arranged for her to work at YouView for the remainder of her contract. Importantly, she was employed by AG Ltd and was seconded to YouView. Although Alan Sugar was at the time a director, it was not a company that he owned.  However, because Ms English was seconded, it is clear that her continuity of service was maintained because AG Ltd and Viglen are ‘associated employers’. She was not actually employed by YouView (that had been bugging me too).

Clearly she enjoyed the work at YouView and wanted to stay, but YouView made it clear that beyond the duration of her secondment there was no job available – certainly not at a salary level of £100k – although there could be opportunities for contract work. It appears clear that Lord Sugar was not in a position to offer her any such work – that was a matter for the management of YouView.

In September 2011 Lord Sugar informed Ms English that her contract would not be renewed after December 2011. This is surely not surprising. Ms English had left her job in Viglen and it was clear that she did not want to return. AG Ltd could not employ her indefinitely to work for YouView as it gained no benefit from the arrangement. In AG’s view it had already gone the extra mile in funding a six month secondment for Ms English for the remainder of her one-year contract.

Ms English then submitted a resignation with immediate effect in October 2011 and claimed constructive dismissal.

The Claim

Interestingly, there was initially a whistleblowing claim submitted but that was withdrawn – although only at the end of the hearing. There is no indication what alleged public interest disclosure Ms English had made.

She claimed that she had resigned in response to a breach of the implied term of trust and confidence. Her main point was that in a meeting with Lord Sugar on on 28 September 2011, when he told her that her contract would not be renewed, he said that he had only put her into YouView for the integrity of the show and used the phrase ‘I don’t give a shit’ (although precisely what it was that he did not give a shit about was a matter of dispute).

If that wasn’t enough to  to amount to a fundamental breach (and it does sound a bit weak doesn’t it?) she also argued that this conduct was the last straw and relied on a series of statements made by senior management at Viglen and Lord Sugar himself going back to the beginning of her employment  - and dating to before she won the competition and entered into the one-year fixed term contract. It isn’t worth going through these allegations in detail, but essentially she was alleging that the job was a sham, that she was treated with a lack of respect, given no proper work to do, and undermined from the outset.

Why she lost

The Tribunal was faced with clear conflicts of evidence about what was said by whom over the course of her employment. Where there was a conflict they essentially believed the evidence of the employers including Lord Sugar and did not believe Ms English. She therefore lost the case because, she had not shown any conduct which amounted to a fundamental breach of contract.

Specifically they found that the job at Viglen was a meaningful job with real responsibilities and duties that were appropriate to her skills and which had real opportunity for growth. They rejected the allegation that Lord Sugar summarised the feedback he had received about her as ‘nice girl, don’t do a lot’.

Not being present for the evidence being heard, I have no idea whether the decision is the right one or not but it seems carefully reasoned enough. It was a clear win for Lord Sugar and his companies, who really don’t come in for any criticism from the Tribunal at all.

Indeed the Tribunal is quite harsh about the decision to bring the case. At the end of the judgement they say this:

154. This was a claim which should never have been brought

155. The Tribunal considers that the Claimant who had sought legal advice prior to putting in her ET1 was ill-advised to bring a claim and or continue it

Of course we don’t know what the legal advice to Ms English actually was given, but I would have said that even accepting that her version of events was true her case had some serious problems:

• Even if her version of what Lord Sugar said to her just before she resigned was correct, it is not clear that that amounted to a fundamental breach of contract. If she had been give work at YouView just to save embarrassment  why would that matter? She accepted that the work there was meaningful and appropriate. 
• Much of the evidence concerned comments allegedly made from the outset of her employment. However at that stage she was employed on a temporary contract and she entered into a new contract in January 2011. How can comments made under a previous contract accumulate to be a fundamental breach of the new contract? 
• It is clear that she made no complaint about her treatment at Viglen directly to Lord Sugar – although she was in frequent contact with him and had his direct line.
• She did not indicate that she had any cause for complaint when she resigned from Viglen.
• She resigned from a job where she was essentially on secondment for a fixed period. Given that her employer gained no financial benefit from her work, her dismissal through the expiry of the contract was surely inevitable. What losses could she actually establish?

Lord Sugar is quoted today as saying that this case shows that employers should stand up to claims such as this. I agree. It is often assumed that an employer will simply cave in and settle a case that can lead to adverse publicity. Many employers and employees frankly overestimate the publicity potential that the case may have – although this case is clearly exceptional. Even where publicity is likely however, some cases need to be fought rather than settled.

It is worth bearing this simple fact in mind when we look at reforming employment law. The current debate is expressed in terms of dispute resolution- doing a deal. That’s all very well but we should remember that the Tribunal system is not just about facilitating a deal, it is about doing justice between the parties – and employers are just as entitled to justice as employees.

The latest example is the Mail’s fury at guidance issued by the Commission on ‘Religion or Belief in the Workplace’. I know I shouldn’t do this but I can’t stop myself. Let’s look at what the article says, and what’s wrong with it.  

The guidance the Mail is complaining about has been issued by the Commission to explain some of the potential implications of the ruling in Eweida and others v United Kingdom. I’ve written quite extensively on that in the past so I won’t summarise the case here.

The Daily Mail sums up the purpose of the guidance like this:

It has been issued in the wake of the landmark European Court of Human Rights ruling that Christians may wear a cross at work

Up to a point, Lord Copper. The ECHR did not rule that Christians ‘may wear a cross at work’. Two of the cases before it concerned the wearing of a cross or crucifix, one succeeded and the other failed. However, the point the Mail is making is this:

But rather than focusing on Christian rights in the workplace – which it insists are still strictly limited – the controversial quango suggests employers should give equal respect to fringe and non-religious groups.

There is a lot wrong with that paragraph. However the central point to understand is this: just because the Eweida case was brought by Christians, that does not mean that the Court’s ruling only applies to Christians. The case was brought under Article 9 of the Convention which protects the freedom of religion and belief. It was always absolutely inevitable that whatever the Court said in Eweida would apply equally to any and all beliefs protected by Article 9. That’s how these things work.

So any guidance issued by the Equality Commission has to make it clear that the principles apply to a wide range of religious and non-religious beliefs, because that happens to be true. The Commission is not extending the law here, it is just explaining it.

Of course the Mail is not just complaining that the guidance covers other religions. It’s point is that the guidance is playing down the rights of the adherents to mainstream religions and emphasising the rights of ‘fringe and non-religious groups’.

The Mail says

This could include giving believers time off to go on pilgrimages, such as druids and pagans going to Stonehenge

This is the Mail’s conclusion, not a quote from the actual guidance. Stonehenge is not mentioned anywhere in the guidance document. Pilgrimages are mentioned, but not specifically in relation to druids, pagans or any other religion. The guidance simply – and correctly – states that some religious employees may request time off to go for a pilgrimage. I suspect that if any particular group was being thought of here it was Muslims performing the Hajj – so that should make the Mail feel better.

In fact the main body of the guidance is expressed in general terms not focussing on any one kind of belief. It does mention that groups such as druids pagans and atheists are protected by the law but it is difficult to see what the objection to that can be because its, well, true. It categorically does not suggest that they are entitled to more favourable treatment than other protected groups. 

Towards the end of the guidance, nine potential situations are discussed and these do use specific beliefs as an example. One of these involves a vegetarian. One involves someone with beliefs about the environment. One deals with a Jewish employee. There is also one case study dealing with a Sikh,  one concerning a Muslim and one concerning a Hindu. The remaining three scenarios concern Christians. In no way does this show an undue focus on fringe beliefs.  

Dealing with the vegetarian, the Mail summarises the guidance like this:

Vegetarian kitchen workers could refuse to do tasks that offend their beliefs, such handling meat [sic].

This is wrong. The example in the guidance is not concerned with ‘kitchen workers’, but with office workers who are asked to clean the office kitchen as part of their duties. The difference is crucial because it would be much harder to accommodate a vegetarian kitchen worker refusing to handle meat as part of his or her job and the guidance categorically does not suggest that  employers have to do that. 

The situation put forward in the guidance may seem odd but it is taken from the case of Chatwal v Wandsworth Borough Council - although that case (which I think is still ongoing) concerns a Sikh abstaining from touching meat rather than simply a highly motivated vegetarian.  

So the Mail overstates the extent to which the Commission argues for the protection of ‘fringe beliefs’. What about its handling of Christian belief?

The Mail says: 

But the 12-page EHRC document makes it clear that the rights of Christians in the workplace are strictly limited

It does no such thing. At no stage does the document make any statement – specific to Christianity – to the effect that rights are limited. It does of course make it clear that there are limits to the right of religious expression in the workplace - because there are. However the guidance does not suggest that the rights of Christians are more limited than the rights of others. 

In support of its statement the Daily Mail says of the guidance:

It gives the example of a religious magistrate asking to be excused from dealing with cases involving the upbringing of children by gay couples. The guidance suggests it would be reasonable to refuse the request because the rights of gay couples are more important.

What the guidance actually says about that scenario is this:

The employer considers this request, but decides to reject it and requires her to carry out her work duties on the basis that the belief is incompatible with upholding the dignity and fundamental rights of same-sex couples under its equal opportunities policy

This guidance is of course directly in line with the Court’s ruling in the case of Ladele (joined to the Eweida litigation). Given the scenario, there is really no other advice that the Commission could give. Nor is the scenario an unrealistic one. It is clearly inspired by the case of McClintock v Department of Constitutional Affairs where just such an objection was made, though no discrimination was found to have taken place.

The Mail makes no mention of the fact that the nine examples include two scenarios in which a Christian’s religious expression (a nurse praying for patients and a Christian wearing a cross) should be respected. Any claim that the guidance plays down the rights of Christians at the expense of any other group is simply wrong. Not just a bit harsh. Not ‘a bit of a stretch’. Wrong.

An insult to Christians?

Possibly my favourite passage in the article is this:

The guidance is likely to be seen as an insult by some Christians and other religious observers as it appears to put lifestyle choices like vegetarianism on a par with their deeply-held spiritual beliefs.

Do you see what they did there? There is no evidence that any Christians are actually offended or regard the guidance as an insult. And of course the guidance does not put ‘lifestyle choices’ on a par with deeply held beliefs. Not all vegetarians will base that choice on a deeply held belief – and if they don’t then they won’t be protected. But some will and they may be covered by Article 9. This is no big deal. Why is it on the front page of a national newspaper?

What we have here is another manufactured outrage story. There really is nothing of substance here at all. The Equality Commission has issued a guidance document which explains the impact of Eweida for UK employers and does so by using examples drawn from a wide range of beliefs protected by Article 9. There is nothing in the guidance that is genuinely controversial. Indeed my criticism of it would be that it is all a bit bland and obvious. I don’t think it tells us anything new – but then it isn’t really supposed to.

The author of the article cannot possibly think he has presented readers with a fair and balanced summary of what the guidance says. On the contrary he has clearly distorted – with something like wild abandon – what is essentially a prosaic and not terribly important guidance document. The stupidity of the article is surely deliberate and calculated – and all the more depressing for that.

In recent series the winner acquires Lord Sugar as a business partner with up to £250,000 to invest in his or her business idea. In the original format, however, the prize was a one-year contract working for one of Lord Sugar’s companies at a salary of £100K. One thing that always puzzled me about this was that nobody seemed interested in what the job actually was.  Even when it got to the interview stage, we didn’t see anybody say ‘this job I’m applying for – what is it exactly?’. Behind the scenes or off camera, of course, they may have talked of little else, but the storytellers putting the programme together seemed to think that the salary was all that mattered.

So I would have thought that by series six, one thing would have become clear to all of the contestants: it isn’t about the job! Participating in The Apprentice is an opportunity to be on telly and become a bit famous. If you want to get a really good job paying £100K a year then frankly there are easier and more reliable ways of doing that than being forced through the humiliations that being a contestant on The Apprentice involves. And you might even get to have some sort of say in what your job actually is.

So when Stella English is reported as complaining that the job itself turned out not to be a proper job at all, I do wonder what she could have been expecting. No doubt it was upsetting for her to be – on her account – an overpaid lackey. But then I always say that if you’re going to be lackey, it’s best to be an overpaid one.

The press reports of her Employment Tribunal hearing are presented as a form of entertainment. They tell a story of disillusionment, anger and betrayal. But they don’t actually tell us what the case is about or what is really happening. Like an episode of The Apprentice itself, the story we are given has been carefully edited to give it some narrative drive and cut out the boring bits.

Naturally, it’s the boring bits that I would be most interested in – like for instance, who is she actually suing? It seems that she worked at Viglen between September 2010 and May 2011 when she resigned and was given a new role at Youview TV Ltd which she left in September 2011. Is she suing Viglen or Youview? The press do all seem to agree that she is suing for constructive dismissal, though whether the claim relates to her resignation from Viglen or from YouView is not entirely clear. I’m also not sure where she gets her one year’s service from. For some reason the press reports don’t mention whether  Viglen and YouView are associated employers for the purposes of S.218(6) Employment Rights act 1996. 

It seems as though the evidence has focussed largely on her job at Viglen which was apparently an unhappy experience for her.  But it isn’t clear what she relies on as the fundamental breach of contract that led to her resignation. Was it the conversation with Alan Sugar where he told her than her contract (with Youview) wasn’t going to be renewed? Or was it the meeting where the chief executive of Viglen allegedly said of her:  ’nice girl, don’t do a lot’? Either way there is something very odd about this claim. To get more than token damages claimants have to show that they have lost something as a result of being constructively dismissed. Given that, it does seem to be an odd tactic to claim that the whole job was a sham and that there was nothing to do. If that is right, then it certainly wouldn’t have lasted beyond the first year anyway – so what has she actually lost? If it is the loss of the job at Youview that she is complaining about then why all the evidence about how awful her job with Viglen was? Frankly, I’m confused.

Lord Sugar has accused Ms English of bringing a vexatious claim in the belief that he would settle rather than risk the publicity the case would attract. No-one whose knowledge of the case is based on the press reports is in any position to have an opinion about that – we’ll have to wait and see what the Tribunal’s findings actually are. But just as The Apprentice is a piece of entertainment that doesn’t tell us anything about how the real world of business operates, so this case tells us very little about employment law or the sort of cases that Employment Tribunals deal with. 

Still, its fun to watch.

Q: What do we do if we receive anonymous and non-specific allegations that a senior manager has been behaving inappropriately towards members of staff?

 A: Well, that’s a good question (I always say this in training courses, they’re paying after all).

It is of course difficult to deal fairly with allegations that are anonymous. But what do we mean by anonymous here? It is one thing if someone has written an anonymous note and left it on your desk, but there is much more you can do if someone makes an allegation and simply tells you that he or she wants their name kept out of it.

In that situation the first step is to gather as much information as you can from the complainant. You need specifics – or at least as much specific information as you can get. Complaints are often very general at this stage, but that is no excuse for ignoring them. You need to dig a bit deeper to find out exactly what is being alleged. You need to then assess the seriousness of the allegation. Are we talking about misjudged banter or serious misconduct? Are there likely to be other people who have experienced the same sort of conduct ?

At this point you may need to discuss whether the individual wants to raise a formal complaint. However, what you do with the information is not entirely up to them. If you have been told that an employee is committing serious misconduct, then whether you do anything about that is not up to the person who told you. Of course you can preserve the anonymity of the complainant, but you also have a duty to other employees. Suppose this complaint is just the tip of the iceberg? If you fail to investigate properly then you are essentially enabling further harassment to take place and quite apart from how awful that will be for the victims, it could also leave you legally liable.

The alleged perpetrator will need to be told of the allegation – though not necessarily given the identity of the accuser. It is important not to lose sight of the fact that they are entitled to be treated fairly and put their side of the case. However, they need to understand that allegations such as this will be treated seriously and thoroughly investigated. Obviously the more specific the allegations the better. Where the allegations are kept anonymous then you need to remember that the individual accused is at a disadvantage. You need to probe carefully for any corroborating details, o any factors which might indicate that the accusations are untrue.

The allegations may, of course, be flatly denied. Denials take many forms. There is the ‘it wasn’t like that, it was just a joke’ denial and there is the ‘that never happened, it’s a fabrication’ denial and there is every shade of meaning in-between. At this stage the decision you need to make is whether you accept the denial and take no further action.

This is a big step. If you just let the matter rest here then the danger is that you will eventually have to deal with much more serious allegations involving many other people  -and the fact that you have done nothing about previous allegations could make things even worse . Before letting the matter rest you should explore all other avenues of investigation and make a very careful assessment. If the allegations strike you as credible – and that’s an important judgement that you have to make (and perhaps later be accountable for) – then you need to carry out a full investigation speaking to colleagues who may have witnessed any of the alleged or similar behaviour.

In other words, you need to either dismiss the allegations as false or carry out as full an investigation as you can and produce a report which may then lead to disciplinary action, depending on the findings you have made. One way or another, you have to decide whether these allegations are true or not and act accordingly. Do not be tempted to just shrug your shoulders and say ‘well its one person’s word against another’ and leave it be.

 That’s the sort of mistake that can really come back to haunt you later.

I’m not sure if that is an accurate figure. As with most compromise agreements, there was a confidentiality clause which would have prevented either side from disclosing the amount agreed. I have direct experience of the press just making up a figure in these circumstances, safe in the knowledge that neither side can contradict it. However let’s assume for now that the the award was for £500K or something like it.

Last week Mr Walker broke his silence and spoke up about the bad practice that he says he observed. It seems that this put him in breach of the confidentiality clause in his compromise agreement (or gagging clause as everyone seems to insist on calling it) with the result that he received a rather stern letter from his former employer’s solicitors. The Daily Mail quotes him as saying:

It’s like Stalinist Russia – speak out and you’re crushed

Indeed. Stalin was well known for handing out six figure settlements to his harshest critics.

The Guardian reported the case of Delyth Jenkins who resigned following her treatment at work after she raised concerns about abuse at a day centre:

Jenkins said she “was totally unprepared for what would happen to me for simply telling the truth. I was entirely unprotected by the law.”

She resigned in 2010 and began a tribunal process. The council settled a day before the hearing, “which let them off the hook and left the truth untold”.

She added: “I am still distraught that the management structure which failed so miserably are still there, given a second chance. They have also been given anonymity in the ombudsman’s report, but if there is no accountability, nothing will change and this will happen again.”

That seems an odd way of looking at it to me. It takes two to settle a case. Who let them off the hook?

The same article reports the case of a nurse they call Pippa who was dismissed for shouting at a resident but who claimed that this was a response to her previous reporting of poor patient care and abuse:

Pippa appealed to the manager. An independent external consultant was bought in to hear Pippa’s appeal, and agreed with her regional Union organiser that she should get two months’ pay under a compromise agreement.

“It was a pathetic amount but it had never been about the money and by this point I was so traumatised, stressed and broke that I just wanted it all to be over.

“But along with the compromise agreement came a gagging clause, meaning I am not allowed to speak about this case. That makes me furious. Why shouldn’t the home stand up and be counted? If they’re allowed to stay unidentified, then perpetrators are allowed to continue working and flawed management structures remain in place – both of which have happened in my case.

Again, if it was ‘never about the money’ – why take the money and accept the confidentiality clause that goes with it?

Of course it is difficult, if you have been dismissed, to fight the case on to the bloody end just so you can avoid signing a compromise agreement that prevents you from repeating your allegations. But we should also remember that in these cases we are only hearing from one side. It is possible that the actual facts of each case are rather more nuanced than is being presented to us now. If, as an employer, you feel you are being wrongly maligned by a former employee, then surely you aren’t going to settle the case without an assurance that the employee will at least stop making (what you consider to be) unfounded allegations about you.

The main development last week was that the Health Secretary Jeremy Hunt was querying whether it was right to impose confidentiality clauses when whistleblowing cases are settled.

Those who follow #ukemplaw on Twitter (and you all should) would have seen mention from several Tweeters (@emmalgrossmith, and @mhrubenstein for example) of a provision which already seems to render any such agreements void. Take a look at  S.43J of the Employment Rights Act 1996:

(1)Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.

(2)This section applies to any agreement between a worker and his employer (whether a worker’s contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract.

That clearly says that a compromise agreement cannot prevent a worker from making protected disclosures. So how can the cases we have been discussing have included such clauses when the compromise agreement was reached?

The only wriggle room I can see is that the contractual clause referred to in this section must be between ‘a worker and his employer’. The compromise agreements in the press last week were made between former workers and their former employers.

Does that distinction matter? The Courts have been prepared to accept that a detriment inflicted on a former worker is covered by the Employment Rights Act and that this can extend to protected disclosures made after the employment has ended  (see the blogpost from Laurie Anstis here), but I haven’t found an authority directly on the scope of S.43J. The question must at least be open – unless someone out there can find a case I’ve missed.

Perhaps Gary Walker will prove to be the test case if Lincolnshire try to get their £500K back. In the meantime, it might not be a bad idea to clarify the provision. The Enterprise and Regulatory Reform Bill has its Report stage in the House of Lords next week and an amendment could easily be made to remove the ambiguity.  I noticed on Twitter this morning that @emmaharper had suggested just that to the BIS minister responsible, @joswinson.  Wouldn’t it be great if a Tweet led to a change in the law?

The change could come at a price though. If a compromise agreement does not stop a former employee from repeating allegations, then it will be a less attractive option for employers. They may be more inclined to fight the case and argue that dismissal had nothing to do with any disclosures the employee may have made. Six figure settlements will be even rarer than they are now but of course (as claimants always tell the press) ‘its not about the money’.

We will be digesting the meaning and implications of the decision for some time to come. In the meantime, on a first reading, here is what I see as the main findings of the Court on the key issues before it. For the facts in each case, see my previous post

Manifestation

The Court rules that a manifestation of a belief must be ‘initimately’ linked to the religion or belief (para 82). This includes an act or worship or devotion, but is not limited to such acts. There must be a ‘sufficiently close and direct nexus’ between the act the and the belief, but the act need not be required by the belief.

On that basis the Court held that Eweida’s insistence on wearing the cross visibly was a manifestation of her religious belief (para 89) and was therefore protected by Article 9. The same was the case with Chaplin’s insistence on visibly wearing a crucifix (para 97). Ladele had not actually claimed a breach of Article 9 (her case is discussed below under Article 14) but McFarlane had relied on Article 9 and the Court held that his refusal to undertake to counsel gay couples was a manifestation of his religious beliefs and was therefore also protected under Article 9 (para 108).

Interference

The Court declined to hold that the fact that an employee can resign and go elsewhere meant that a condition imposed in employment could not be an interference in the right to manifest a belief (para 83). Rather, it took the view that the ability of the employee to resign was one factor to be taken into account when considering the overall question of proportionality.

The Court ruled that in Eweida’s case, the refusal of British Airways to allow Eweida to visibly wear the cross and stay in her post was an interference with her right to manifest her religious belief (para 91). The same was true of Chaplin (para 97). The issue was therefore whether domestic law provided them with adequate protection

In McFarlane’s case the Court seems to consider the issue of interference as being one and the same as the issue of justification but the clear implication was that his dismissal did amount to an interference.

Justification

The State enjoys a certain ‘margin of appreciation’ in deciding whether and to what extent an interference in a right is necessary. The Court’s task is to determine whether the measures taken at national level are justified in principle and proportionate (para 84).

In Eweida’s case the Court held that the law as interpreted by the domestic courts had failed to strike a fair balance (para 94).  On one side of the scales was Eweida’s right to manifest a religious belief; on the other side of the scales was British Airways’ right to project a certain corporate image. While BA’s aim was legitimate, the domestic courts had attributed too much weight to it. The cross was discreet and did not detract from a professional appearance. There was no evidence that other permitted religious symbols had any negative impact on BA’s brand or image, and the fact that the policy was subsequently changed showed that the requirement was no of crucial importance.

In Chaplin’s case, however, the Court felt that the reason for the interference in her right was ‘inherently of greater magnitude’ than in the case of Eweida (para 99). Health and safety was a field in which the domestic authorities had to be allowed a wide margin of appreciation. Hospital managers were better placed to make decisions about clinical safety than a court. On that basis the Court declined to find any violation of Article 9.

As for McFarlane, the Court held that it was relevant that he knew about the need to comply with an equality policy when he began work and said (para 109):

While the Court does not consider that an individual’s decision to enter into a contract of employment and to undertake responsibilities which he knows will have an impact on his freedom to manifest his religious belief is determinative of the question whether or not there been an interference with Article 9 rights, this is a matter to be weighed in the balance when assessing whether a fair balance was struck.

There was a wide margin of appreciation in deciding where to strike the balance between McFarlane’s rights and the need to protect the rights of others. On balance the Court held there had been no breach of Article 9.

Article 14

The Court stressed that Article 14 has no independent existence.  as it has effect solely in relation to the rights enjoyed under the Convention. However it is autonomous in the sense that it does not depend on an actual breach of a Convention right. It covered both treating people in he same situation differently, but also failing to treat people in different situations differently (para 87). Any differences in treatment had to be proportionate and the state enjoyed a margin of appreciation in determining when differences in treatment could be justified.

Alone of the four applicants, Ladele had framed her case entirely based on Article 14 rather than any breach of Article 9. The Court held that her case fell within the ambit of Article 9 so that Article 14 was applicable. The Court accepted that Islington’s designation of all registrars as civil partnership registrars had a particularly detrimental impact on her because of her religious beliefs. However Islington’s aim in doing so – the provision of a non-discriminatory service – was legitimate (para 105). Crucial in the question of proportionality was the fact that the policy aimed to protect the rights of others whose rights were also protected under the Convention. On balance the Court held that neither Islington nor the domestic courts had exceeded the margin of appreciation and Ladele’s claim under Article 14 failed (para 106).

Since there had been a violation of Article 9 in Eweida’s case the Court saw no reason to consider the impact of Article 14 (para 95). In Chaplin’s case the Court, having found justification under Article 9 held that the considerations relating to discrimination would be broadly the same, and therefore saw no reason to find any violation of Article 14. For McFarlane also the Court held that there had been no breach of Article 14

Result

Chaplin, Ladele and McFarlane all lost heir cases. Eweida won and was awarded her 2,000 Euro in compensation.

As to what all of this actually means? The lesson for employers, I think, is to just try to be reasonable and as long as you can explain why a particular policy is necessary, you’re probably fine. You should try to accommodate religious beliefs in the workplace – but we knew that already.

For lawyers, the case will be picked over for some time to come. In terms of employment law, I suspect that it may have quite an impact on how we look at indirect discrimination cases. Making a coherent whole out of Article 14 and the Equality Act 2010 may be quite a challenge, but now that we have a protected characteristic (religion or belief) that specifically engages a Convention right, the scope of Article 14 will have to be taken into account. The Court of Appeal in Eweida had held that there was no need for BA to justify its policy because Eweida had not shown that the policy caused a disadvantage to others besides herself. That view of indirect discrimination can certainly no longer stand in the context of religion or belief. Whether it can still apply in other protected characteristics is an issue the courts will have to grapple with at some point.

Yesterday I set out the bare facts of each of the cases being decided. In this post I am going to look at the key issues that are before the Court. I’m still not making any predictions!

Who is being sued?

Each of the four applicants originally brought discrimination cases against their respective employers – and lost. They now bring their claims to the European Court of Human Rights, but it is important to realise that they are no longer suing their employers. They are not appealing to the ECHR to have their cases overturned – that’s not what the Court is for. Each applicant is claiming that domestic law failed to protect their human rights.   Their claims are therefore being brought against the UK Government for failing to ensure that domestic law complied with the Convention.

Given that, it does seem a little unfair of those supporting the cases to complain that the Government has opposed their claims. The UK Government takes the view that the laws on religious discrimination adequately protect the Convention rights of individuals. It would be a bit surprising if they argued anything else.

Article 9

All four applicants rely on Article 9 of the Convention – here it is:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

As far as I am aware no-one is arguing that the applicants were not free to hold their various beliefs; the issue is whether there has been an interference with the right to ‘manifest’ their belief in ‘worship, teaching, practice and observance’.

Manifestation

This is actually a complicated question because the case law of the ECHR has in the past taken quite a restrictive view of what counts as a ‘manifestation’ of a religious belief. In Arrowsmith v UK (a case from 1978 involving a pacifist handing out leaflets urging troops not to go to Northern Ireland) the Court held that not everything motivated or inspired by  religious belief was a manifestation of it. It had to be something that was necessary in order for the individual to practice his or her religion.

This would suggest a difficulty for Eweida and Chaplin in particular - both of whom accept that wearing a cross is not a requirement of their religion. However the Equality Commission has intervened to argue that something that is genuinely motivated by a religious belief and which ‘attains a certain level of cogency and seriousness and is not unreasonable’  should be protected. They quote more recent case law suggesting that the Court has from time to time applied this wider approach.

It is in this context that the UK Government argued that wearing a cross is not a manifestation of the applicants’ religious beliefs. That is a perfectly reasonable point for them to make once you realise that they are arguing about a technical term as it has been defined by the Court.

So the first big issue for the Court to decide is whether to take the wider view of ‘manifestation’ argued for by the Commission or the narrower view argued for by the UK Government.

Interference

Assuming the applicants clear that hurdle, the next question will be whether being dismissed (or otherwise forced out of a role) is an interference with the freedom to manifest a religious belief. After all, no-one was stopping Eweida or Chaplin from wearing a cross or crucifix, and no-one was forcing Ladele to conduct civil partnerships or McFarlane to give sexual therapy to gay couples. In each case the employee was free to walk away from the job and find more congenial employment elsewhere. If that seems harsh, remember this is human rights law we are talking about – not employment law. The issue is not whether the applicants have been treated fairly by their employer but whether their human rights have been breached.

The case law of the ECHR gives some support to the idea that there is no breach of human rights in the workplace if an employee is free to go and work elsewhere. Again the Equality Commission points to more recent cases taking a wider approach. This case is a good opportunity for the Court to supply some clarity

The second big issue then, is whether and in what circumstances a restriction imposed by an employer as part of the contract of employment can be a breach of Article 9 if the employee has voluntarily entered into such a contract and is free to leave the employment and work elsewhere.

Justification

If the Applicants make it through the first two issues, then they have one more hurdle to clear. Article 9.2 allows an interference in the right to manifest religious beliefs provided that such an interference is ‘necessary in a democratic society… [to protect] the rights and freedoms of others’. In Ladele and McFarlane the justification argument is clear – the UK will argue that the employer was seeking to avoid discrimination based on sexual orientation. In Chaplin the justification is based on health and safety and the danger presented to elderly patients by a necklace worn around a nurse’s neck. In Eweida, the justification is harder to find – that case may turn entirely on the issues of ‘manifestaton’ and ‘interference’.

The third big issue is whether, if any of the applicants have suffered an interference with their right to manifest a religious belief, whether such interference was ‘necessary in a democratic society’ .

Discrimination – Article 14

All four applicants also rely on Article 14 of the Convention:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

It is well established that this Article does not provide a general free-standing right not to be discriminated against – but it does guarantee non-discrimination in the areas covered by the Convention. If the applicants can show that their situations were covered by Article 9 then they may be able to argue that the domestic courts should have upheld their indirect discrimination claims under Article 14. In both Chaplin and Eweida the claims were dismissed because the applicants failed to show that the employer’s practice caused a disadvantage to an identifiable group. It is possible that the Court will rule that a different approach is needed that focuses on the effect of the practice on an individual. The Court may also rule on the standard of justification to be applied.

The fourth big issue is whether the Applicants should have succeeded in their indirect discrimination claims, given the effect of Article 14. If the answer is yes then this has the potential to create a two-tier discrimination system with a different test applying for discrimination cases involving religion and belief and other grounds, such as sex and race, which are not covered by the Convention.

Eweida

I’ve written at some length about the facts in Eweida here. But to summarise, Ms Eweida is a practising Coptic Christian who began working as part of the British Airways Check-in staff in 1999. The post requires the wearing of a uniform and until 2004 the uniform included, for women, a high-necked blouse. In 2004 a new uniform was introduced which included an open-necked blouse wth a Cravat which could be tied loosely around the neck or tucked in. The uniform policy stated:

“Any accessory or clothing item that the employee is required to have for mandatory religious reasons should at all times be covered up by the uniform. If however this is impossible to do given the nature of the item and the way it is to be worn, then approval is required through local management as to the suitability of the design to ensure compliance with the uniform standards, unless such approval is already contained in the uniform guidelines. … NB No other items are acceptable to be worn with the uniform. You will be required to remove any item of jewellery that does not conform to the above regulations.”

Ms Eweida wore a small silver cross around her neck which until May 2006 she kept hidden under the uniform in accordance with the policy. On 20 May she wore the cross openly but eventually agreed to cover it up after discussion with her manager. On 7 August  2006 she again came into work with the cross visible but then reluctantly agreed to comply with the uniform policy. On 20 September 2006 she refused to cover up her cross and was sent home without pay. In October she rejected an offer to work in administrative role without customer contact which would have allowed her to keep her cross on display.

From 1 February 2007 British Airways adopted a new policy allowing the display of religious symbols over the uniform. Ms Eweida returned to work from 3rd February 2007.

Chaplin

Ms Chaplin was employed as a nurse and was employed by the Royal Devon and Exeter NHS Foundation Trust from April 1989 to July 2010. At the relevant time she worked on a geriatric ward. The Hospital’s uniform code said this:

“5.3.6 To minimise the risk of cross infection will be [sic] keep jewellery to a minimum (see 5.1.11). That is:

• One plain smooth ring which will not hinder hand hygiene,
• One pair of plain discreet earrings.
• No necklaces will be worn to reduce the risk of injury when handling patients.
• Facial piercing if present should be removed or covered.”

It also stated:

“Any member of staff who wishes to wear particular types of clothes or jewellery for religious or cultural reasons must raise this with their line manager who will not unreasonably withhold approval”.

In June 2007, new uniforms were introduced which included a V-necked tunic. Ms Chaplin wore a small crucifix on a chain around her neck and in June 2009 she was asked to remove it. She objected to doing so and discussions ensued about a potential solution. Ms Chaplin rejected a suggestion that she could wear a turtle neck T-shirt under her uniform so that the necklace would be covered up. She felt that displaying the cross to others was an essential part of her religious faith. She also refused to wear the crucifix and chain secured firmly to her identity badge rather than around her neck.

In November 2009 she was moved to a non-nursing temporary position which lasted until July 2010 when she was (apparently) made redundant. Her Tribunal claim was decided before July 2010 however and so no issues in relation to the ending of her employment arise.

Ladele

Ms Ladele is a Christian who believes that civil partnerships are contrary to God’s law.She worked for the London Borough of Islington from 1992 until 2009. In 2002 she became a registrar of births, marriages and deaths (until December 2007 she was a statutory post holder rather than an employee). According to the Council’s ‘Dignity for All’ policy:

“Islington is proud of its diversity and the council will challenge discrimination in all its forms. ‘Dignity for all’ should be the experience of Islington staff, residents and service users, regardless of the age, gender, disability, faith, race, sexuality, nationality, income or health status. …

The council will promote community cohesion and equality for all groups but will especially target discrimination based on age, disability, gender, race, religion and sexuality. …

…It is the council’s policy that everyone should be treated fairly and without discrimination. Islington aims to ensure that:

• Staff experience fairness and equity of treatment in the workplace
• Customers receive fair and equal access to council services
• Staff and customers are treated with dignity and respect

The council will actively remove discriminatory barriers that can prevent people from obtaining the employment opportunities and services to which they are entitled. The council will not tolerate processes, attitudes and behaviour that amount to discrimination, including harassment, victimisation and bullying through prejudice, ignorance, thoughtlessness and stereotyping. …

All employees are expected to promote these values at all times and to work within the policy. Employees found to be in breach of this policy may face disciplinary action.”

The Civil Partnerships Act 2004 came into force on 5 December 2005. Ms Ladele had a deeply held religious objection to conducting civil partnerships. However in December 2005 Islington (though it was not required to do so) designated all of its Registrars of Births Marriages and Deaths as Civil Partnership Registrars.  Unlike some local authorities, they did not allow any of their Registrars to ‘opt-out’.

Initially, Ms Ladele was allowed to make informal ‘swapping’ arrangements with colleagues in order to avoid carrying out civil partnerships. In March 2006, however, two gay Registrars complained about her refusal.  Tensions grew in the Department. In May 2007 disciplinary proceedings were commenced against Ms Ladele on the basis that she was in breach of the Dignity for All policy. A disciplinary hearing took place on 16 August 2007. The outcome was that Ms Ladele could be excused from conducting civil partnership ceremonies but would be required to undertake straightforward signings of the register and other administrative tasks associated with civil partnerships. She refused and brought discrimination proceedings in November 2007. At the time of the Tribunal decision she was still employed by Islington, but she resigned in September 2009.

McFarlane

Mr McFarlane is a Christian who believes that homosexual activity is sinful and that he should do nothing to endorse it. He worked for Relate Avon Ltd as a counsellor from May 2003 until March 2008. He initially had concerns about counselling same-sex couples but after a discussion with his manager agreed that counselling did not involve any endorsement of the relationship.

In 2007 he began Relate’s Post-Graduate Diploma in Psycho-Sexual Therapy (PST) which is concerned with improving a couple’s sexual activity with a view to improving the overall relationship. However by late autumn 2007 there was a perception that he was unwilling to work on sexual issues with same-sex couples. Mr McFarlane was then asked to provide written confirmation that he would be willing to counsel same-sex couples in both relationship counselling and PST. He replied that he was happy to counsel same-sex couples but that his views were still evolving with respect to PST.

That was taken as a refusal to comply and disciplinary proceedings began. Mr McFarlane then stated that he would do PST work with same-sex couples if asked and that if any problems arose he would speak to his supervisor. In response to this the disciplinary proceedings were dropped. However concerns were again raised after a conversation between Mr McFarlane and his supervisor. It was felt that either he was confused about same-sex PST or was being dishonest about his views. When challenged he simply said that he had nothing to add to his previous comments. He was dismissed for gross misconduct on 18 March 2008 on the basis that he had said that he would undertake sexual counselling of same sex couples when in fact he had no intention of doing so. It was subsequently conceded that this was a wrongful dismissal in that notice should have been given.

]]> http://darrennewman.wordpress.com/2013/01/13/eweida-co-the-facts/feed/ 2 daznewman http://darrennewman.wordpress.com/2013/01/11/employers-must-justify-requiring-christians-to-work-on-a-sunday-and-why-that-wasnt-the-headline-in-the-telegraph/ http://darrennewman.wordpress.com/2013/01/11/employers-must-justify-requiring-christians-to-work-on-a-sunday-and-why-that-wasnt-the-headline-in-the-telegraph/#comments Fri, 11 Jan 2013 10:02:29 +0000 Darren Newman http://darrennewman.wordpress.com/?p=252 Continue reading →]]> Next Tuesday the European Court of Human Rights rules on the cases of Eweida, Chaplin, Ladele and McFarlane. The case is likely to be quite complicated and I plan to read it very carefully and give it some serious thought before I write anything about it. After that of course I shall go on about it at tedious length.

Those tempted to comment on the outcome before they have read the decision in full should take note of the case of Mba v London Borough of Merton. The judgement was read out to the parties before Christmas but only made its way to the EAT website on 10th January. By that time however, a seriously misleading account of the decision had made its way into the press. Let’s look at what happened.

Mba is a pretty run-of-the-mill indirect discrimination case. It doesn’t change the law or even pretend to. It simply upholds the finding of an Employment Tribunal that there was no discrimination when an employer insisted that a devoutly Christian employee comply with her contractual obligation to work on Sundays.

In Paragraph 2 of the Decision the EAT says this:

It is no longer open to an employer to require staff to work on Sunday and thereby cause disadvantage to those who are Christian unless the employer can show that the requirement is objectively justified

So there has never been any doubt that insisting that employees work on a Sunday is potentially an act of indirect discrimination. Whether it is or not depends on whether the employer can show that the requirement is a ‘proportionate means of achieving a legitimate aim’. This is straightforward and uncontroversial.

In the Mba case the Tribunal held that the employer had met that test. The claimant worked at a registered children’s home which – unsurprisingly – did not close at weekends. Care had to be provided seven days a week and all employees had to take their share of working on Sundays. For two years the employer tried to work around the problem caused by Ms Mbas refusal to do so but eventually they decided that the only viable course was for her to work to her contract. She resigned and claimed constructive dismissal and discrimination.

The Tribunal considered carefully the alternatives that Ms Mba had put forward, and agreed with the employer that they were not practicable, or involved too much additional cost I’ve read the ET decision and they give careful reasons why each ‘solution’ put forward by Ms Mba was not viable.  On appeal the EAT accepted that the Tribunal had properly examined the issues and reached a conclusion that was open to it.

That’s really all there is, nothing to see here folks.

The EAT tried to stress that this was a case which turned on its own particular facts. The President of the Employment Appeal Tribunal said this:

We should make it clear at the outset of this Judgment to anyone who expects the conclusion to amount either to a ringing endorsement of an individual’s right not to be required to work on a Sunday on the one hand, or an employer’s freedom to require it on the other, that they will both be disappointed.  No such broad general issue arises.  The questions raised must be determined in the specific circumstances of this particular case alone.

Is is that clear to everyone? This case absolutely does not say that Christians have no legal protection when it comes to being required to work on Sunday. They have the same right as any other religious group not to be discriminated against.

The case was reported by the Daily Telegraph before the judgment was published with the headline: ‘Christians have no right to refuse to work on Sundays, rules judge‘. The story which follows is pretty much worthless as a description of the ruling.

For example, take this quote from the article:

In the Guardian, Joshua Rozenberg has picked up on the fact that the Telegraph article is inaccurate and was written before the judgement was available. Noting that the judgment was originally read out by Mr Justice Langstaff in the EAT he says that the Daily Telegraph reporter in question:

… has excellent shorthand and the absence of any quotes from the judgment in his scoop demonstrates that he had not been in court. Instead, he would have relied on notes of the ruling made by one the lawyers present.

Those notes proved to be accurate but they could never have been as complete as a copy of the judgment itself.

But the problem with the Telegraph’s article is not that it paints an incomplete picture – it paints a blatantly distorted and inaccurate one. I think that to assume that this is the result of a misreading of some lawyers’ notes is to take a charitable view at best.

It is sad that even the HR press was not immune to repeating the Telegraph’s line without waiting for the actual judgment  to come out.  I’m particularly disappointed in HR Magazine which ran with ‘High Court Rules that Christians can’t refuse to work on Sundays’ and said:

‘a High Court judge has ruled that Christians have no right to decline working on a Sunday as it is not a core component of the Christian faith’

Not only did they misunderstand the ruling, they even illustrated the story with a picture of a gavel resting on a big book with ‘LAW’ written on the side – that’s just unforgivable. Gavels are for auctioneers people.

And what to make of HR Zone who said: ‘News: Christians cannot refuse to work on Sundays, rules judge’? That story opens with the paragraph:

Individual Christians do not have any protection in law against being fired if they refuse to work on Sundays, a High Court judge has ruled.

Wrong. Very very wrong.

The fact is that there are certain religious discrimination stories that are being manipulated as part of what amounts to a political campaign. My objection is that this includes misrepresenting the outcome of cases to fit a particular ‘persecution’ narrative – often with the (entirely false) suggestion that the law treats other religions more favourably.  As a result, employers and employees are less well informed about discrimination law than they should be. The Telegraph and its ilk are beyond redemption, but surely those who write specifically for HR professionals can try to hold back a bit and do some reading before they regurgitate the line being peddled by a biased and unreliable press?

Lets see what happens on Tuesday.

The phrase is used by people who want employment law to be as limited as possible. The beauty and elegance of the term is that instead of sounding like 19th century mill-owners, they can be the voice of common sense. Gold plating conjures images of pointless indulgence – of useless decoration. Regulations are supposed to be sensible functional things. Gold-plating them is just silly and we should stop doing it.

There are some fundamental problems with this approach however. Those who identify gold-plating are acting on the assumption that they know what the EU law actually requires. Take this article in the Daily Telegraph,, for example which quotes as an ‘obvious’ example of gold-plating the scope of the Agency Workers Regulations:

Regular readers of this blog will not be surprised to learn that the truth is a little more complicated than that. The provision of the EU directive being referred to here is this one, from Article 3(1):

(f) “basic working and employment conditions” means working and employment conditions laid down by legislation, regulations, administrative provisions, collective agreements and/or other binding general provisions in force in the user undertaking relating to:

(i) the duration of working time, overtime, breaks, rest periods, night work, holidays and public holidays;
(ii) pay.

To assume that this provision limits the Directive to statutory pay and holiday is to assume that you know precisely what the phrase ‘binding general provisions in force in the user undertaking’ means and can be absolutely certain that it does not extend to contractual terms that are ordinarily applied to employees. But that sort of assumption would be silly. I can’t predict exactly how the ECJ would interpret that provision but to claim that the Regulations contain gold-plating you have to assume that the court would adopt the most restrictive meaning possible. How likely is that?

Had the Government taken the advice of the IoD and limited the Regulations to statutory requirements, then the law would be in chaos. No-one would be able to get straightforward legal advice until the ECJ had ruled on the issue – and that would be likely to take years.

But of course no-one would listen to lobbyists who argued that we should always assume the most restrictive possible interpretation of EU law and just keep asking the European Court of Justice for a ruling whenever an issue arose. It makes sense to implement EU law with some sort of safety margin so that business knows where it stands and we can have some hope that the EU directive has been properly implemented. But of course no-one would argue that we should remove all safety margins from our legislation. Call it ‘gold-plating’, however, and we can claim that its completely unnecessary.

Having said that, actually finding gold-plating is more difficult than some lobbyists make out. I honestly struggle to think of areas of EU law relating to employment where we go clearly and unequivocally beyond what is required.

But there is one really good example.

Take this provision from the pregnant workers directive (Article 8(1))

Member States shall take the necessary measures to ensure that workers within the meaning of Article 2 are entitled to a continuous period of maternity leave of a least 14 weeks allocated before and/or after confinement in accordance with national legislation and/or practice. (my emphasis)

In the UK we give employees 52 weeks’ leave. Now if that isn’t gold-plating I don’t know what is. If Michael Fallon at the Department for Business is opposed in principle to gold-plating then he should be calling for maternity leave entitlement to be slashed. Why isn’t he?

Because the ‘gold-plating’ argument is one you only rely on when you are opposed to the law in question. It’s a lobbyist technique, not a genuine principle for legislation and deep down the Government knows that.

In the current climate we are unlikely to want to implement new employment rights that aren’t required by EU law. But if the Government decides that that is what it wants to do (like shared parental leave for example), it won’t let the fact that that is gold-plating get in the way.