DISMISSAL CAN IT BE REDUNDANCY WHEN IT COULD BE CAPABILITY?
11 January 2013
Where an employer has had issues with the conduct and capability of an employee, can there be a genuine redundancy?
Daniel Barnett’s Employment law Reports that yes indeed it can as found by the EAT on the facts in Fish v Glen Golf Club .
The Claimant was the club secretary of a golf club who was dismissed on grounds of redundancy. He alleged this was a pretext since the club committee had long-standing concerns about his conduct and capability. He also relied on the rushed nature of the consultation process and the haste to appoint his deputy to an alternative job instead of him. However, the club was making serious losses. And Mr Fish was one of four employees dismissed on grounds of redundancy. The employment tribunal found that Mr Fish had been fairly dismissed by reason of redundancy. Mr Fish appealed and essentially argued that the tribunal's decision was perverse. The EAT rejected his appeal and considered the employment tribunal was entitled to find, weighing the evidence, that the principal reason for dismissal was redundancy. The criticisms of Mr Fish were background, not the real reason for dismissal. The case is a reminder of how difficult it is to argue perversity. As Langstaff P said, one way of putting it is that, for the argument to succeed, the tribunal decision "must be such as to cause astonished gasps from the well-informed observer". Such was not the case here.
RELIGIOUS DISCRIMINATION
17 January 2013
The question as to whether the UK law provides sufficient protection against discrimination for employees wishing to manifest their religious beliefs has been considered by the European Court of Human Rights.
In the case of Eweida and Others v The United Kingdom and as reported in Daniel Barnett’s Employment Law Report the answer is yes in some, but not in all.
Ms Eweida worked for British Airways, and Ms Chaplin as a geriatric nurse. Both had sought to wear visible crosses, in breach of their employers' respective uniform policies. Ms Ladele was a registrar, whose employer required her to perform civil partnership ceremonies. Mr McFarlane provided counselling services for Relate. He was unwilling to provide sexual counselling for same sex couples. Article 9 of the European Convention on Human Rights provides that there is a right to freedom of thought, conscience and religion, but a qualified right to manifest one's religion or beliefs. This is subject to 'only 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 for the protection of the rights and freedoms of others'. The Court essentially departed from previous case law and held that where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would remove any interference with the right, the approach at the ECtHR level is to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.
The Court held that the domestic courts accorded too much weight to British Airways' desire
CIPP Policy News Journal
12/04/2013, Page 76 of 362
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