Tribunal Procedure.

Wrong Early Conciliation number stated on a Form ET1 is potentially fatal.

The ET was concerned with two claims lodged by the Claimant. The first gave an incorrect ACAS early conciliation (“EC”) number – relating to a different Claimant and a different claim; the second gave the number of an EC certificate that was invalid. Neither had been rejected by the ET under Rule 10 ET Rules nor had the claims been referred to an Employment Judge under Rule 12. At a Preliminary Hearing before the ET, the Claimant applied to amend his claim to correct the ACAS EC number. The ET allowed the application, see this as consistent with the overriding objective and the general principle of access to justice given that this was a minor amendment to rectify a technical error. The Respondent appealed.

Held: allowing the appeal

The Claimant’s claims failed to include an accurate ACAS EC number and were thus of a kind described at Rule 12(1)(c) ET Rules. Pursuant to Rule 12(2), the Employment Judge was therefore required to reject the claims and return the claims to the Claimant; that was a mandatory requirement that was not limited to a particular stage of the proceedings. As this would mean that there was no longer a claim before the ET, the Employment Judge had no power to allow the Claimant to amend; the correct procedure was instead that laid down by Rule 13. The Claimant argued that the ET’s decision could be upheld by virtue of Rule 6, read together with the overriding objective. Rule 6 could not, however, import a discretion into a mandatory Rule Cranwell v Cullen UKEATPAS/0046/14, [2015] UKEAT 0046_14_2003 and Baisley v South Lanarkshire Council [2017] ICR 365 applied. Moreover, Rule 6 applied to ET proceedings but the mandatory rejection and return of the claim under Rule 12(2) meant that there were no proceedings before the ET.

It is potential misconduct for an employee to covertly record a meeting unless the most pressing of circumstances.

There was a time when an employee – or for that matter an employer – had to go to a great deal of trouble to record a meeting covertly. At that time it would be straightforward to draw the conclusion that the recording had been undertaken to entrap or otherwise gain an unfair advantage. But in our judgment times have changed. Most people carry with them a mobile telephone which is capable of making a recording; and it is the work of a moment to switch it on. In our collective experience it is now not uncommon to find that an employee has recorded a meeting without saying so. In our experience such a recording is not necessarily undertaken to entrap or gain a dishonest advantage. It may have been done to keep a record; or protect the employee from any risk of being misrepresented when faced with an accusation or an investigation; or to enable the employee to obtain advice from a union or elsewhere. 78.We do not think that an ET is bound to conclude that the covert recording of a meeting necessarily undermines the trust and confidence between employer and employee to the extent that an employer should no longer be required to keep the employee. An ET is entitled to make an assessment of the circumstances. The purpose of the recording will be relevant: and in our experience the purpose may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation. There may, as Mr Milsom recognised, be rare cases where pressing circumstances completely justified the recording. The extent of the employee’s blameworthiness may also be relevant; it may vary from an employee who has specifically been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or distressed employee who has scarcely thought about the blameworthiness of making such a recording. What is recorded may also be relevant: it may vary between a meeting concerned with the employee of which a record would normally be kept and shared in any event, and a meeting where highly confidential business or personal information relating to the employer or another employee is discussed (in which case the recording may involve a serious breach of the rights of one or more others). Any evidence of the attitude of the employer to such conduct may also be relevant. It is in our experience still relatively rare for covert recording to appear on a list of instances of gross misconduct in a disciplinary procedure; but this may soon change. 79.That said, we consider that it is good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances; and it will generally amount to misconduct not to do so. We think this is generally recognised throughout employment except perhaps by some inexperienced employees. This practice allows both sides to consider whether it is desirable to record a meeting and if so how. It is not always desirable to record a meeting: sometimes it will inhibit a frank exchange of views between experienced representatives and members of management. It may be better to agree the outcome at the end. Sometimes if a meeting is long a summary or note will be of far more value than a recording which may have to be transcribed.

Discrimination – Remedy

A Tribunal is not bound to award injury to feelings in the lower vento band just because it is a one off act of discrimination.

The EAT said “Moving on to the ET’s assessment of injury to feelings in this case, it is right to say that, in deciding whether the case should fall within the lower or middle Vento bands, an ET might think it relevant to have regard to whether the discrimination in question formed part of a continuing course of conduct (perhaps a campaign of harassment over a long period)or whether it was only a one-off act. That said, each such assessment must be fact and case specific. It is, after all, not hard to think of cases involving one-off acts of discrimination that might well justify an award falling within the middle or higher Vento brackets, or other cases involving a continuing course of conduct that are properly to be assessed as falling within the lower band. Simply describing discrimination as an isolated or one-off act may not provide the complete picture and I do not read the Vento guidance as placing a straightjacket on the ET such that it must only assess such cases as falling within the lower band. The question for the ET must always be, what was the particular effect on this individual complainant.”

Disability Discrimination – Disability related discrimination

It was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment: the fact that there may have been other causes as well was not an answer to the claim. Further, an employment tribunal should have considered whether an employer had gained actual or constructive knowledge of a claimant’s disability by the time it rejected her appeal against dismissal, rather than simply considering whether the employer had knowledge of her disability when it reached the initial decision to dismiss.

The Claimant was dismissed by the Respondent at the end of a six-month probationary period. It was accepted that she was disabled by depression. She claimed that her dismissal was an act of disability related discrimination under section 15 EqA 2010. The ET rejected the claim because: (a)They found that the Respondent did not know and could not reasonably have been expected to know that she was disabled at the time of the dismissal; (b)They said there was no evidence that her behaviour towards her colleagues (which was part of the reason for her dismissal) “arose in consequence of” her disability; (c)There were other reasons for her dismissal in addition which were sufficient; (d)The dismissal was justified under section 15(1)(b) EqA 2010. The EAT allowed the appeal because of errors in relation to each stage of the reasoning: (a)Although the Respondent did not know about the Claimant’s disability at the time of the dismissal, they may have acquired actual or constructive knowledge of it before the rejection of her appeal and the rejection of the appeal formed part of the unfavourable treatment of which she was complaining; (b)There was in fact some evidence that her depression caused the relevant behaviour which the ET ought to have considered; (c)It was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment: the fact that there may have been other causes as well was not an answer to the claim; (d)The ET failed to consider the section 15(1)(b) defence properly; in particular, they failed to address the question whether dismissal was a proportionate response.

 An employer was not liable for harassment under Ss.26 and 109 of the Equality Act 2010 when an employee posted a racially offensive image on Facebook and shared it with a colleague

Forbes -v-LHR Airport Ltd UKEAT/0174/18

A colleague of the Appellant, Ms S, posted an image of a golliwog on her private Facebook page with the caption, “Let’s see how far he can travel before Facebook takes him off”. The image was shared with Ms S’s list of Facebook friends, including another colleague, BW. BW showed the Facebook post to the Appellant. The Appellant complained of harassment by Ms S. Ms S apologised and received a final written warning. Thereafter, the Appellant was rostered to work alongside Ms S. When he raised a concern, he was moved to another location. The Appellant complained to the Tribunal of harassment, victimisation and discrimination.

The Employment Tribunal dismissed the complaint. Whilst it found that Ms S had shared an image that was capable of giving rise to offence on racial grounds, her act of posting the message on her Facebook page was not an act done in the course of her employment and was therefore not one for which the Respondent could be liable. The Appellant appealed.

Held (dismissing the appeal) that section 109(1) of the Equality Act renders an employer liable for the acts of an employee done “in the course of employment”. Whether or not an act is in the course of employment within the meaning of that section is a question of fact for the Tribunal to determine having regard to all the circumstances: Jones v Tower Boot Co Ltd [1997] IRLR 168 applied. The relevant factors to be taken into account might include whether or not the impugned act was done at work or outside of work. It might not be easy to determine whether something was done at work if it is done online. In this case, the Tribunal did not err in law in concluding that Ms S’s act of posting the image on her Facebook page was not done in the course of employment; it was a private Facebook account, and the image was shared amongst her Facebook friends, one of whom happened to be a work colleague, BW, who took the subsequent step of showing the image to the Claimant at work. The outcome of the complaint might have been different if BW had been the target of the harassment complaint, as his subsequent act of showing the offensive image to the Appellant was done in the workplace and might be said to have been done “in the course of employment”. However, that was not the complaint that the Tribunal had to consider.

Religious Discrimination – Fundamental distinction between someone’s religious beliefs and the manner in which they choose to express them. If the latter, then no religious discrimination.

Richard Page -v- NHS Trust Development Authority UKEAT/0183/18/DA

The Claimant, who is a practising Christian, held the position of Non-Executive Director of an NHS Trust. He was also a lay magistrate sitting on family cases involving adoption decisions. The Claimant holds the firm faith-based belief that it is “not normal” for a child to be adopted by a single-parent or a same-sex couple. The public expression of those views led to disciplinary action in respect of his Magistracy. The Claimant participated in media interviews about that action without informing the Trust. The Trust instructed the Claimant to inform it before contacting the media. The Claimant was subsequently removed from the Magistracy. Before the Trust could speak to him about that removal, the Claimant took part in a further televised interview with BBC Breakfast News, during which he expressed the view that he could not see how adoption by a same sex-couple could ever be in the best interests of the child. The Claimant was thereafter suspended by the Trust and his term as a NED was not renewed. The Claimant issued claims of discrimination (direct and indirect) because of religious belief and victimisation. The Employment Tribunal dismissed the claims.

Held (dismissing the appeal): that the Tribunal had not erred in law in finding that the Claimant was treated as he was because of the manner in which the Claimant had expressed his beliefs (rather than because of the beliefs themselves), including the fact that he had spoken to the media without informing the Trust and had done so in the knowledge that his conduct would be likely to have an adverse effect on the Trust’s ability to engage with sections of the community it serves. That finding as to the reason for the Claimant’s treatment was a finding of fact which cannot be said to be perverse. The Tribunal had also not erred in rejecting the claim of indirect discrimination on the grounds that the Claimant was unable to show group disadvantage. The Tribunal had correctly applied the Court of Appeal’s decision in Mba v Merton London Borough Council [2014] 1 WLR 1501. Finally, the Tribunal had not erred in concluding, in accordance with the principles established in Martin v Devonshires Solicitors [2011] ICR 352, that the various reasons relied upon by the Respondent for its treatment of the Claimant were properly separable from the allegations of discrimination which the Claimant was making against the Lord Chancellor and others in respect of his removal from the Magistracy.