Is a ‘perfunctory and insensitive’ redundancy consultation likely to make a redundancy dismissal unfair? Yes, held the EAT in Thomas v BNP Paribas Real Estate, upholding an appeal against the finding of a fair dismissal. The Claimant had over 40 years’ service, ending up as a Director of the Respondent’s property management division. After a strategic review, the Claimant was put at risk of redundancy and immediately put on ‘garden leave’ and told not to contact clients or colleagues. The Respondent then made a number of procedural errors, including getting the Claimant’s first name wrong in a letter. However, the employment tribunal found that the dismissal was fair. The EAT quashed the decision, remitting the claim to a different employment tribunal. The EAT criticised the decision to put the Claimant on garden leave and to prohibit contact with colleagues during the consultation period. The EAT found it ‘particularly troubling’ that the employment tribunal had found the manner of consultation perfunctory and insensitive, yet considered that it was reasonable, without saying why. Such a process would not necessarily be unreasonable, and hence unfair, but one would expect to find some form of reasoning from the employment tribunal to explain why matters that gave rise to criticism of the process did not render the consultation unreasonable.

In Bandara v British Broadcasting Corporation the EAT has upheld the decision of an employment tribunal that an employer had not been entitled to rely upon an existing final written warning when considering whether to dismiss an employee for further misconduct because the decision to issue the existing warning was ‘manifestly inappropriate’. However, the EAT went on to hold that the tribunal erred in finding that the dismissal was nonetheless fair. The tribunal had wrongly posed the hypothetical question of what would have happened had the existing warning been an ordinary, as opposed to a final, written warning. Instead, the tribunal ought to have considered the extent to which the employer relied on the final written warning and, given the employer’s reasoning, whether the dismissal fell within the range of reasonable responses under S.98(4) of the Employment Rights Act 1996.

B worked as a Senior Producer in the BBC’s Sinhalese Service. Until 2013, he had an unblemished disciplinary record going back almost 18 years. In August 2013, he was subject to disciplinary proceedings in respect of two incidents which had taken place earlier that year. The first, for which he was charged with abusive behaviour and refusing to follow a reasonable management request, concerned an occasion in March when he had shouted at a senior manager, S. He had apologised to S by e-mail the following day and no further action was taken at the time. The second, for which he was charged with a breach of editorial guidelines, related to his decision, on 23 July 2013, to prioritise coverage of the 30th anniversary of Black July – a sombre date in Sri Lankan history ­– over that of the birth of Prince George the previous day. The disciplinary decision-maker, I, considered that both incidents potentially constituted gross misconduct, and decided to impose a final written warning.

Shortly thereafter, B was subject to further disciplinary proceedings, which concerned various allegations of bullying and intimidation, being abusive towards colleagues and refusing to obey management instructions. G, the disciplinary decision-maker in these proceedings, found most of the allegations proved or partially proved, and concluded on 15 August 2014 that B should be summarily dismissed. B’s claims of race discrimination and unfair dismissal were dismissed by an employment tribunal, notwithstanding the tribunal’s finding that the earlier final written warning was manifestly inappropriate. B appealed against the dismissal of his unfair dismissal claim, and the BBC cross-appealed against the tribunal’s finding on appropriateness of the earlier warning.

The EAT noted that, in general, earlier decisions by an employer should be regarded by the tribunal as established background that should not be reopened. However, an earlier disciplinary sanction can be reopened if it is ‘manifestly inappropriate’, i.e. if there is something about its imposition that, once pointed out, shows that it plainly ought not to have been imposed. In the present case, the EAT considered that the tribunal had been entitled to conclude that the earlier final written warning should not have been imposed. As the tribunal found, the misconduct in question plainly did not amount to gross misconduct, either by reference to the BBC’s disciplinary policy or by generally accepted standards.

However, the EAT held that the tribunal had erred in concluding that B’s dismissal was nonetheless fair. Where an employee is dismissed for misconduct following a final written warning that the tribunal considers manifestly inappropriate, the tribunal should not put forward a hypothesis of its own, but should examine the employer’s reasoning and see whether or not the decision to dismiss was reasonable having regard to equity and the substantial merits of the case. This will include consideration of the extent to which the employer relied on the final written warning. In the EAT’s view, if the employer treated the warning as no more than background or as indicative of the standard to be expected of an employee, and in fact dismissed for the misconduct alleged in the new proceedings, then it may be that the dismissal was fair. If, however, the employer attached significant weight to the warning, for example starting from the position that because the employee was already subject to a final written warning, he or she should be dismissed for any significant further misconduct, it is difficult to see how the employer’s decision could be reasonable.

In the present case, the tribunal had wrongly considered the hypothetical question of whether the dismissal would have been fair had B been subject to an ordinary, as opposed to a final, written warning. Its decision therefore could not stand. As the tribunal had not made clear findings on the extent to which the BBC in fact took account of the existing final written warning, the EAT could not establish for itself whether or not B’s dismissal was fair, and the case was remitted to the tribunal for determination of this point.

Link to transcript:

Is segregation of pupils based on sex direct discrimination contrary to s.13 Equality Act 2010? No, held the Administrative Court in X School v HMCI. A mixed-sex Islamic faith school judicially reviewed an Ofsted report following an inspection under section 8 of the Education Act, which concluded that the school unlawfully discriminated against both its female and male pupils by “making parallel arrangements” for their education in the same building. Mr Justice Jay concluded that segregation on grounds of sex did not amount to less favourable treatment under sections 13, 23 and 85 of the Equality Act, because the treatment was identical for both groups. He considered that there was no qualitative difference between the denial to male pupils of interaction with female pupils and the denial to female pupils of interaction with male pupils. In those circumstances, unless Ofsted could demonstrate that the segregation was deliberately discriminatory, for instance because the Islamic faith regards the female gender as inferior and/or considers that females should be prepared for a lesser role in society, its position was hopeless. Ofsted had suggested that segregation was discriminatory because it perpetuated a historic view held by society of inferiority of women, but it did not implicate the Islamic school per se or provide any evidence. The fact that single-sex faith schools exist did not have any relevance for the court’s assessment because Parliament had specifically legislated an exception for faith schools’ admissions policies. Given the importance of central issue, whether segregation per se constitutes less favourable treatment, the court granted permission to both parties to appeal to the Court of Appeal.

Employment tribunal claims have plummeted by more than 9,000 a month, the Trades Union Congress has said, warning that steep fees have allowed discrimination at work to ‘flourish unchecked’.

TUC analysis of government figures shows that 83,031 claims were brought in 2015/16, down from 191,541 in 2012/13. Over the four-year period the number of single-claim cases has fallen by 69%; multiple-claim cases (where more than one person brings a claim against the same employer) has fallen by 79%.

TUC general secretary Frances O’Grady said: ‘These figures show a huge drop in workers seeking justice when they’ve been unfairly treated. Now bosses know they can get away with it, discrimination at work can flourish unchecked and people can be sacked without good reason.’

A further breakdown of Ministry of Justice figures show that 12,652 unfair dismissal claims were brought in 2015/16, down from 49,036 in 2012/13. Sex discrimination claims fell from 18,814 in 2012/13 to 5,371 in 2015/16. There were 2,001 race discrimination claims in 2015/16 compared to 4,818 in 2012/13. Disability discrimination claims fell from 7,492 to 2012/13 to 3,468 in 2015/16.

Figures for 2015/16 show that conciliation service Acas was notified of more than 90,000 disputes, but 65% of these were not settled by Acas nor progress to an employment tribunal.

O’Grady said: ‘The evidence is there for all to see. These fees – of up to 1,200, even if you’re on the minimum wage – are pricing out thousands each month from pursuing cases. Theresa May has repeatedly said she wants to govern for ordinary working people. Here is a perfect opportunity. She could reverse employment tribunal fees, and make sure workers can challenge bad employers in court.’

Last month the ministry was asked by Dawn Butler, Labour MP for Brent Central, what progress the department had made on its review of the effect of the introduction of employment tribunal fees, and whether a fixed publication date would be issued for the review.

Justice minister Sir Oliver Heald responded last week that the review ‘is making good progress and I expect to announce its conclusions in due course’.