Indirect Discrimination: shaking off the coat tailers

Indirect discrimination is all about the presence of a “provision, criterion or practice” (PCP) in the workplace that puts individuals with protected characteristics at a disadvantage compared to those without them, where the employer cannot justify the PCP.


One way to set about proving the harmful effect of the PCP on groups is to produce a statistical analysis. If that provides grounds to conclude that a group with a common characteristic has been disadvantaged, does the burden then pass to the employer (a) to justify the PCP or (b) to admit liability and hope for a loophole when it comes to remedy?


Evidently not, according to the Court of Appeal in Home Office (UK Border Agency) v Essop & others, decided on 22 June 2015. Membership of the disadvantaged group is not sufficient. The claimant must also establish why the PCP disadvantaged him as an individual.


This case was all about a Home Office requirement for promotion applicants to pass a Core Skills Assessment. A statistical analysis showed that applicants sharing a black minority ethnic (BME) characteristic, or aged over 35, had a notably lower pass rate. In the Court of Appeal’s view, the statistics were not conclusive on their own. One notable comment: -


“But why should a coat tailer, if he can be identified as such, be entitled to succeed?”


A coat tailer, in context, would be an individual who had failed the CSA for a reason other than the perceived disadvantage inflicted by the PCP. Such an individual, according to the Court of Appeal, was not entitled merely to invoke his protected characteristic and call upon the employer either to justify the PCP or to plead for reduced or no compensation: -


“Why has the employer in such a case not so disproved the coat tailer’s claim as to be entitled to have it dismissed? The coat tailer will not have proved a contravention of the legislation…”


Indirect discrimination is always going to be a minefield for employers. This decision has at least made its navigation a little easier.

Are employees under an implied duty to disclose a mere allegation of impropriety against them?

Evidently not, according to Mitting J in the Employment Appeal Tribunal case of Basildon Academies v Amadi. If the employer has not imposed any express contractual term or clear policy requiring an employee to disclose such information, there is no scope for the employer to treat such an omission as gross misconduct.


This case, interestingly, was in the education sector and involved an allegation of sexual assault against the claimant when working for Employer B on days when not under contract with Employer A. Upon hearing of the allegation (which in fact led to no prosecution), Employer B suspended him. The claimant kept it quiet and did not tell Employer A, who went one step further once they found out, and used the non-disclosure as grounds for a gross misconduct dismissal.

The judge found the dismissal unfair. There was no basis to impose an implied duty to disclose an allegation of impropriety, save for one that the employee knew or had reason to believe was true. As such there was no misconduct at all, let alone any that still left dismissal outside the range of reasonable responses.


What is the moral for employers? Keep your terms under review and make sure they are wide enough and clear enough to catch any act or omission that you wish to treat as misconduct. It’s all very well to list examples of gross misconduct and to proclaim that they are non-exhaustive, but you’ll have the burden of proving that anything else is caught.

Whistleblowing: What counts as Public Interest?

A manager complains about “the manipulation of his employer’s accounts”, to the benefit of shareholders, and the fact that it has left him financially worse off. He is one of 100 office managers in the company similarly affected. He is dismissed and he claims his dismissal is automatically unfair because he had made a protected disclosure, specifically that there had been a breach of a legal obligation.

As a result of a 2013 amendment to the Employment Rights Act, it is now necessary for a whistleblower to have held a reasonable belief at the time that he was making the disclosure in the public interest.

Let’s take a step back and look at the facts of this particular dispute. They are all about the accounts of a private company, not a PLC or a public sector body. The issues were hardly newsworthy. The wrongdoing arguably involved no harm to a material number of people, nor was it likely to have stirred up any sense of popular indignation. At best, apart from obvious and understandable self interest on the part of the whistleblower, he would have had in mind no wider audience than the other 100 office managers similarly affected. Does this count as public interest?

Evidently so. According to the Employment Appeal Tribunal in Chesterton Global Ltd v Nurmohamed, the 100 other office managers were a sufficient section of the public to satisfy the public interest test. The suggestion that this was more analogous to a complaint about holiday pay, which would be of interest to other employees but no one outside the company, rather than to a complaint about an issue that struck at wider public policy such as unlawful discrimination, was not accepted.

At first sight, this may suggest that the 2013 amendment has proved not to be worth the paper it was written on. But the argument to the contrary is that it was only ever intended to stop an aspiring whistleblower from relying upon a breach of his own contract of a personal nature with no wider implications.

There may of course be little chance of a flood of whistleblowing claims, given the obstacles (Early Conciliation, fees) now in place to deter tribunal applications generally. But this is arguably a major reduction in the scope for an employer to play the “no public interest” card when faced with a whistleblowing claim.


Do you wish to blow the whistle on a matter of public interest? Or are you faced with one of your employees claiming to have done so? If you need advice, contact David Cooper or Andrew Cox.

Williams v Leeds United FC: how a 5 year old pornographic work email wrecked a 12 month severance package

Mr Williams was technical director of Leeds United FC ("LUFC"), with duties that included identifying and nurturing young talent on the football field. LUFC decided to make him redundant and were aware of his 12 month notice period and his salary of £200,000. So they embarked on a search to find any reason they could to justify instant dismissal...


...and struck gold, finding an email with pornographic images attached that he had sent to a male friend outside LUFC from his work email account five years earlier. They dismissed him and rejected his appeal. Some time later, it was found that he had sent the email to two others, one female club employee and one male friend outside the club.


What carried more weight with the court? The clear intention of LUFC to breach its contract with Mr Williams anyway and to further its financial interests by paying him nothing - in which case the email's discovery would have been an irrelevant and undeserved windfall only fit to be ignored - or the inherent gross misconduct nature of the email, its late discovery having only served to leave Mr Williams on borrowed time until it saw the light of day?


Evidently the latter. The High Court sided with LUFC. Regardless of the fact that his sending of the email lay undiscovered for over 5 years, it was a sufficiently serious breach of the duty of implied trust and confidence as to amount to a repudiatory breach of contract. LUFC were entitled to accept it as such in justification of his summary dismissal on 30 July 2013.


Every such case is going to turn on its own facts, of course. But it is a salutary lesson for any employee who might think that there is any water under the bridge factor for undiscovered gross misconduct.


Williams v Leeds United Football Club [2015] EWHC 376 (QB): full judgment here: -


http://www.bailii.org/ew/cases/EWHC/QB/2015/376.html

John McCririck v Channel 4: was his age a factor?

The tabloid press view of John McCririck (JM) losing his age discrimination employment tribunal claim against Channel 4 Television and IMG Media may be summed up, inaccurately or otherwise, as “nothing to do with his age, everything to do with his personality”. Is this fair? Let’s look at the decision of the employment tribunal.

It seems to have been overlooked, amid all the frenzy, that (a) the tribunal did decide that the 72 year old JM suffered a detriment by not being permitted to work as a Channel 4 racing presenter, potentially tainted with unlawful discrimination by reference to his age, and (b) this served, pursuant to the principles in the well established Igen v Wong decision, to shift the burden of proof onto Channel 4 and IMG. In deciding this, the tribunal noted that fellow presenter Tanya Stevenson, aged 42, was kept on and that four other individuals dismissed at the same time were all over 50.

So how did Channel 4 satisfy the get-out provisions, namely that the treatment was a proportionate means of achieving a legitimate aim? Initially, by persuading the tribunal not to stick at a narrow definition of legitimate aim, namely inter-generational fairness or dignity. The goal of bringing horse racing to a wider audience was held to be legitimate in its own right, and JM’s dismissal was proportionate in that context. It would perhaps be unkind to reproduce further what the tribunal had to say, in turn, about JM’s individual characteristics in reaching that conclusion, even when it considered the difference between his pantomime persona on reality TV and his “gravitas” character when at work on the racecourse.

What conclusions do we draw? Employers may be relieved that this decision shows that even if they have slipped up – or find themselves unexpectedly caught out – in the face of the age discrimination card being played, they will not be on a hiding to nothing and will still have scope to face down the claim. It may still be cold comfort to those employers who will not have Channel 4’s bottomless pockets. But it is difficult not to feel a touch of sympathy for any employees faced effectively with the need to reapply for their own jobs in circumstances where the world has moved on and where their distinctive personal characteristics no longer fall on the right side of the divide. This, however, is a matter of politics rather than law.

Leonard Coppage & Freedom Security v SafetyNet Security [2013] EWCA Civ 1176: victory in the Court of Appeal

In Leonard Coppage and Freedom Security v SafetyNet Security [2013] EWCA Civ 1176, published on 11 October, the Court of Appeal has just confirmed in its reserved judgment why a six month post termination restraint on the solicitation of "any individual or organisation who has during your period of employment been a customer of ours" was a fair and reasonable restraint satisfying long established principles, even though it was not limited to customers of the employer within the employee's final 6 or 12 months of employment before termination.

In emphasising that the courts should not be sidetracked by arguments from merely theoretical or fanciful possibilities, the Court of Appeal carefully noted the fact that SafetyNet was a company with a single branch and 106 customers in its trading history, 98 of whom were live when Mr Coppage left. This was in marked contrast to the circumstances in cases such as Office Angels v Rainer-Thomas, where the company's nationwide presence with 6-7,000 customers at 34 branches counted against a non-solicitation clause where the employee in question had only ever had contact with 100 customers at 1 branch - for all practical purposes this had been a non-competition clause in all but name.

In the present case, it was particularly worthy of note that the non-solicitation clause went on to read "if the purpose of such an approach is to solicit business which could have been undertaken by us". In the Court of Appeal's view, this gave the clause its commercial practical reality. Had any customer left on bad terms, leaving no prospect for SafetyNet to regain its business, the solicitation of such a customer would not have been a breach of the clause.

It is also not to be overlooked that the Court of Appeal concurred with the trial judge's assessment of damages in the sum of £50,000 then and there. The award was neither wrong in the absence of evidence relating to expenses, nor arbitrary. It was based upon acceptable unchallenged general evidence relating to revenue and profitability, and well within the reasonable judgment of an experienced Mercantile Court judge.

All in all, a sound and sensible decision likely to be of particular comfort to small businesses looking for necessary and reasonable protection for their customer bases, without having to fear challenges based on merely technical arguments and smokescreens.

For any advice upon similar circumstances, whether to prevent or to cure, please contact David Cooper.

Termination of Employment: Pre-Termination Negotiations – another ERRA reform

The principle behind the introduction of Pre-Termination Negotiations (PTNs), another law change introduced under the Enterprise and Regulatory Reform Act 2013, is to make it easier for employer and employee to have an off the record discussion about termination of employment on agreed terms.

Such a discussion may anticipate a proposal to enter into a Settlement Agreement, as we must now call what was for many years a Compromise Agreement.

Interestingly, there is no need for there to have been a pre-existing dispute before the PTN discussion is held. On the face of it, the employer only needs to refrain from “improper behaviour” in this setting, to avoid losing the PTN’s protection.

But it may not be that straightforward. The employee might immediately assert that the whole conversation is a breach of trust and confidence, walk out and claim constructive dismissal and breach of contract – and evidence of the PTN would then be admissible. Likewise if the employee stopped the discussion in midstream, invoked a protected characteristic under the Equality Act regime (race, sex, age, disability, orientation, religion) and then argued “hidden agenda” via a discrimination claim. Or if the employee turned the offer down, and then asserted after his dismissal that he had been sacked for whistleblowing.

Theory, of course, may differ from practice. An employee invited to participate in such an off the record discussion may know full well that the writing has been on the wall for some time, and look straight away at the financial terms. But the need for employers to tread carefully here is never going to go away.