Category Archives: Employment

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Racial harassment claim by Jewish teacher over union’s Israel-Palestine policies fails – Robert Kellar

121221-university-college-unionMr R Fraser -v- University & College Union – Case Numbers: 2203390/201 – Read judgment

In this case, a member of the Union brought various claims of harassment related to his “race, religion or belief” under section 57 of the Equality Act 2010. The wide ranging allegations made by the Claimant arose, in essence, from the way in which Union had handled the Israel/Palestine debate. For example, claims arose from motions debated at the Union’s congress on proposals for a boycott of Israeli academic institutions and related questions. The Claimant alleged that the Union was guilty of “institutional anti-Semitism” which he alleged constituted harassment of him as a Jewish member of the Union.

The Tribunal described the litigation as being “gargantuan” in scale. It heard from 34 witnesses including academics and MPs. The hearing lasted 20 days and required 23 hearing bundles. Ultimately, in an extremely robust decision, the Tribunal rejected the Claimant’s allegations in their entirety. It found them to be “manifestly unmeritorious” and an “impermissible attempt to achieve political end by litigious means”. The Tribunal also expressed themselves as being worried by the implications of the claim. They sensed that underlying the litigation was a “worrying disregard for pluralism, tolerance and freedom of expression”. Of particular interest was the way in which the Tribunal dealt with issues of legal principle at heart of the claim.

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Disclosure of ill-treatment allegations would breach nurse’s human rights, rules High Court

nursing-homeR (on the application of A) v the Chief Constable of Kent Constabulary [2013] EWHC 424 (Admin) – read judgment

This was an application for judicial review, and a claim under the Human Rights Act 1998, in respect of the defendant’s decision to disclose allegations of neglect and ill-treatment of care home residents in an Enhanced Criminal Records Certificate dated 12th October 2012.

Background

In August 2012, the defendant received a request from the Criminal Records Bureau  for an enhanced check to be made in respect of the Claimant concerning her proposed employment by Nightingales 24 7 as a registered nurse. The information related to the alleged mistreatment of several elderly and vulnerable adults resident in the care home in which [A] worked as a Registered General Nurse.  The allegations were made by the residents and the health care workers in the charge of A, a registered nurse who qualified in Nigeria. She claimed that these allegations had been made maliciously because the health care assistants resented the way in which she managed them. She also claimed that some of the allegations were motivated by racism. Continue reading →

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Government’s back to work schemes ruled unlawful without rights to refuse

PoundlandReilly & Anor, R (On the Application of) [2013] EWHC Civ 66 – read judgment

Adam Wagner has also commented on this case in The Times (£) as well as on Newsnight (from the start)

The Court of Appeal has ruled that regulations under the Jobseekers Act 1995 were unlawful as not meeting the requirements of that statute.

This was an appeal against a decision by Foskett J that the regulations were lawful. The two appellants were unemployed and claiming the Jobseekers’s Allowance.  After refusing to participate in schemes under the Regulations in which they were required to work for no pay ( the Sector-Based Work Academy in Miss Reilly’s case and the Community Action Programme (CAP) in Mr Wilson’s), they were told that they risked losing their allowance.  Continue reading →

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Victory to the (Pharmacy) Workers!

Boots the ChemistPharmacists Defence Association Union v Boots Management Services Ltd – Read judgment

The consequences of the change of approach of the European Court of Human Rights in the Article 11 case of Demir has definitely washed up on the shores of the UK

In a recent decision of the Central Arbitration Committee presided over by Mary Stacey, it was decided that it was necessary to amend the wording of the Trade Union and Labour Relations (Consolidation) Act 1992 (Sched 1A para 35) to make it compliant with Article 11 of the ECHR and the decision of the Strasbourg Court in Demir and Baykara v Turkey.

The decision of the CAC is a report from the front line of the battle between independent unions and employers about granting the former recognition.

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Strasbourg rules against UK on BA crucifix issue, but rejects three other religious rights challenges

amfhindssilvercrucifixchainb001t9box8Eweida and Others v. the United Kingdom – read judgment

The Strasbourg Court has today come up with something of a mixed message in relation to religion at work. They have voted that there is a right to manifest individual faith by wearing religious adornments but not by objecting to practices that are protected by anti-discrimination legislation.

All four applicants are practising Christians. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complained that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele,  a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor complained about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality. Further details of all these cases can be found in our posts here, here, and here (as well as in the “related posts” section below).

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Christians have no right to refuse to work on Sundays… oh no, wait

TelegraphOn 29 December 2012 The Daily Telegraph published an article under the headline Christians have no right to refuse to work on Sundays. 

This has now been shown to be nonsense. The judgment in Mba v London Borough of Merton was released yesterday and is analysed here. Mr Justice Langstaff made entirely clear that the judgment only applies to the individual worker who brought the appeal, not more generally. Here is some inaccurate reporting from David Barrett (remember this by him?), Telegraph Home Affairs correspondent:

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Christian who refused Sunday work was not constructively dismissed – Richard Wayman

300px-Duccio_di_Buoninsegna_014Mba v London Borough Of Merton (Religion or Belief Discrimination) [2012] UKEAT 0332/12/1312 (13 December 2012) – Read judgment

The Employment Appeal Tribunal (EAT) has dismissed the appeal of a Christian care worker against the decision of an Employment Tribunal that she was not constructively dismissed as a result of her refusal to work on Sundays.

Mr Justice Langstaff, President of the EAT, made it clear in his judgment however that anyone hoping either for ‘a ringing endorsement of an individual’s right not to be required to work on a Sunday’ or an employer’s right to require it would be disappointed, as ‘no such broad general issue arises’. [3]

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Facebook faux pas and disciplinary proceedings – when do human rights come in?

Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) - read judgment 

Turner v East Midlands Trains [2012] EWCA Civ 1470 - read judgment

Two employment cases, about Facebook and train tickets respectively, indicate the difficulties of deciding where human rights may or may not be raised in disputes between private parties – neither defendant in these cases was a public authority. 

It is perfectly clear that where there is a statutory provision under attack, Section 3 of the Human Rights Act mandates the “reading down” of its wording to conform to Convention rights even though there is no “public authority” amongst the parties to the litigation. The Turner case below illustrates this particular aspect of the “horizontal” effect of the HRA in disputes between private parties.

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Human rights victory for BNP bus driver

REDFEARN v. THE UNITED KINGDOM – 47335/06 – HEJUD [2012] ECHR 1878 – read judgment / press release

The BNP has been a relentless opponent of Human Rights Act and its manifesto for the 2010 General Election made no less than three separate declarations of its intention to scrap the Act and abrogate the European Convention of Human Rights which it described charmingly as being, “exploited to abuse Britain’s hospitality by the world’s scroungers.”

This has not stopped the European Court of Human Rights (ECtHR) riding to the rescue of one of their erstwhile councilors in Redfearn v United Kingdom

The ECtHR, by a majority of four to three (with British judge Sir Nicolas Bratza being one of the dissenters), decided that, despite the margin of appreciation, the positive obligation placed on the UK by Article 11 (right to free assembly and association) meant that a person dismissed on account of his political beliefs or affiliations should be able to claim unfair dismissal despite not having the qualifying one year’s service then applicable.

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Are Christians really marginalised in this country?

We will have to wait some time before Strasbourg hands down its judgment in the religious discrimination cases it heard earlier this week.

Whatever the outcome – which is perhaps predictable – the Court’s ruling will have a significant influence on the place of religion in public life and on how the relationship between religion and the state should be structured to reflect the aims of fairness and mutual respect envisaged in the Convention.

The Equality and Human Rights Commission argues in its intervention submission that Strasbourg – and the UK courts – should move on from their “restrictive” interpretation of Article 9, summed up by Lord Bingham’s oft-cited description of the Court’s position in R (SB) v Governors of Denbigh High School [2006] UKHL 15

The Strasbourg institutions have not been at all ready to find an interference with the right to manifest a religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience.[para 23]

(This is a revised intervention after the EHRC responded to widespread criticism of its proposed argument in support of “reasonable accommodation” of employees’ beliefs – see Alasdair Henderson’s post on this dust-up “Leap of Faith” and our following post on the reversal of the EHRC’s position.) Continue reading →

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Religious freedom in UK to be considered by Strasbourg Court

Macfarlane and others v United Kingdom (ECHR 329 (2012) – read press release

Tomorrow the Strasbourg Court will hear complaints in four applications that UK law has failed adequately to protect the applicants’ right to manifest their religion, contrary to Articles 9 (freedom of religion) and 14 (prohibition of discrimination). See our posts on these cases here and here, and in the related Preddy case here.

All four applicants are practising Christians who complain that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complain that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor, complain about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.  Their challenges to their consequent dismissal were rejected by the UK courts on the basis that their employers were entitled to refuse to accommodate views which contradicted their fundamental declared principles – and, all the more so, where these principles were required by law, notably under the Equality Act (Sexual Orientation) Regulations 2007.

The judgment is awaited with considerable anticipation: the National Secular Society and the Equality and Human Rights Commission have both filed  intervening submissions under Rule 44 §3 of the Rules of the Court.

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NHS Trust rapped on knuckles for refusing to reinstate union activist

R(on the application of Yunus Bakhsh) v Northumberland Tyne and Wear NHS Foundation Trust [2012] EWHC 1445 (Admin) - read judgment

This fascinating short judgment explores the extent to which a judicial review claim, or a free-standing claim under the Human Rights Act, may be precluded by a statute covering the same issue.

If Parliament has decided on a particular avenue of appeal in a certain context, and settled upon a sum in compensation, do the courts have any room for manoeuvre outside those statutory limits?  There is very strong authority to the effect that the courts have no discretion to grant any relief going beyond the remedy which Parliament has seen fit to provide (see Johnson v Unisys Ltd [2003] 1 AC 518). But on arguability grounds at least, this short permission decision by Foskett J suggests that public law must attend to the policy behind the statute. If the redress provided by the legislation does not fully serve the aims of that policy, it may be that public law has to come to the rescue.

Background

In essence the claimant, a former mental nurse who had been sacked because of his trade union activities and not granted reinstatement, was seeking to challenge the decision by his employer, a public NHS trust, not re-engage him after it had been ordered to do so by an Employment Tribunal in 2010. The reason they failed to do so was not put forward but was probably because of his anticipated continued trade union militancy. Continue reading →

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Should we outlaw genetic discrimination?

The late US law Professor Paul Miller reflected recently that Beethoven, Stephen Hawking and Elton John were examples of individuals whom, if they had been tested for serious genetic conditions at the start of their careers, may have been denied employment in the fields in which they later came to excel.

Earlier this month the Association of British Insurers announced the latest extension on the moratorium on the use of genetic test results for insurance purposes. But is this “Concordat” sufficient protection? Genetic technologies are becoming increasingly available and profound questions are arising in relation to life and health insurance and employability as genetic screening becomes cheaper and widespread.

According to the Human Genetics Commission (HGC)

The advent of cheap whole-genome sequencing, and greatly reduced costs for genetic tests in general, will provide the platform for genetic testing to be used for novel and unpredicted purposes. (Report on The Concept of Genetic Discrimination, Aril 2011) Continue reading →

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Suing the corporate soul; parent company down for asbestosis

Chandler v. Cape Plc, Court of Appeal, 25 April 2012, read judgment.

This may sound like a rather dreary topic, but the problem is vitally important for the proper reach of environmental and personal injury law. Some may have seen from my post on the Erika disaster the difficult issues which can arise when a multi–national (in that case, Total) does business through a number of corporate entities, particularly where they are domiciled in different countries. But the present case is a good example where liabilities are not confined to the party directly responsible for the injury or disaster. Good thing, too, for this claimant, who stood to gain nothing from his former employer, a company now dissolved, or indeed its insurers.

In the late 1950s and early 1960s Mr Chandler worked for a Cape company, Cape Products, loading bricks. Asbestos was also  produced at his workplace, and dust from that part of the works was allowed to blow around the works. Mr Chandler recently contracted asbestosis, and wanted to claim for the admitted negligence of Cape Products. But Cape Products was no more, and there had been excluded from its employers liability insurance any cover for pneumoconiosis. So that led nowhere. Hence this claim against Cape Plc, its parent company, on the basis that Cape Plc had “assumed” responsibility for the health of its subsidiary’s employees.

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GP’s rights not violated by suspension from performers list

Malik v United Kingdom 23780/08 [2012] ECHR 438 (13 March 2012) - Read judgment

The European Court of Human Rights held that the suspension of a GP from the Primary Care Trust (PCT) Performers List did not violate his right to peaceful enjoyment of possessions under Article 1 Protocol 1 (A1P1) of the European Convention on Human Rights. The Court declined to decide whether there was a possession that could be interfered with in this case, but held that suspension did not affect Dr Malik.

Dr Malik ran a general practice from premises he owned in London. He was under a general medical services contract with his PCT so that he had to ensure patients on his list were provided with GP services (whether by himself or a salaried doctor); his premises was rented (for a notional amount) so that it could be used for NHS services. Dr Malik was also on the PCT’s performers list so that he personally could provide GP services.

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