Employment Bulletin - November 2018

This month’s bulletin includes the following articles​:

  • Can an individual be liable for a whistleblowing dismissal along with the employer under the detriment provisions?
  • UK Supreme Court rules that refusal to bake cake with slogan supporting gay marriage was not discrimination (Northern Ireland)
  • Religious Occupational Requirement Exception to Discrimination Claims
  • Can an employer be liable for injury caused at an impromptu work afterparty?
  • Is it reasonable to dismiss an Employee when evidence has been withheld from the disciplinary panel?
  • TUPE: an example of when terms and conditions are permitted to be changed post-transfer
Can an individual be liable for a whistleblowing dismissal along with the employer under the detriment provisions?

A whistleblower will qualify for protection from detrimental treatment and unfair dismissal if they have made a qualifying and protected disclosure, relating to one of six types of relevant failure. They must have the reasonable belief that the information tends to show one of the relevant failure and it must be in the public interest.

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UK Supreme Court rules that refusal to bake cake with slogan supporting gay marriage was not discrimination (Northern Ireland)

In a landmark decision the UK Supreme Court has ruled that it was not direct discrimination for a Christian baker to refuse, on religious grounds, a request by Mr Lee, a gay man, to bake a cake featuring Bert and Ernie of Sesame Street, with the message 'Support Gay Marriage'. The Court decided that to bake a cake with a message that the bakers intrinsically disagreed with would not justify a breach the European Convention of Human Rights, which prevents an individual being made to express a political opinion they do not believe. Lee v Ashers Baking Company Ltd and others [2018] UKSC 49.

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Religious Occupational Requirement Exception to Discrimination Claims

The religious occupational requirement exception is an area of law that derives from the European Union. Article 4(2) of the Equal Treatment Framework Directive sets out the limited circumstances where national legislation of a member state may permit a difference in treatment where an employer considers a particular religion or belief to be an occupational requirement of a job.

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Can an employer be liable for injury caused at an impromptu work after party?

Vicarious Liability arises where one party (whether that is a Company, organisation or an individual person) is responsible for the negligent actions of another. In an employment context an employer will be liable for actions “in the course of employment”. The Court of Appeal has taken the view that this is to be viewed broadly and in a recent case a Managing Director’s drunken assault on an employee at an unscheduled after work drinking session has made the Company also liable. Bellman v Northampton Recruitment Limited [2018] EWCA Civ 2214.

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Is it reasonable to dismiss an Employee when evidence has been withheld from the disciplinary panel?

The Employment Appeal Tribunal (“EAT”) held it was reasonable for the Employer to dismiss the Employee although the Employer had withheld evidence from the disciplinary panel from witnesses who had seen nothing.

They dismissed the Employee’s appeal holding that ‘the ET had correctly directed itself as to the higher standard of investigation and process that might be expected given the potentially career-changing nature of the allegation against the Claimant….. it had permissibly concluded that the Respondent had acted within the range of reasonable responses in taking no further action in respect of the evidence of witnesses who would not have had a direct view of the incident and who had said they had seen nothing.’

Hargreaves v Manchester Grammar UKEAT/0048/18/DA

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TUPE: an example of when terms and conditions are permitted to be changed post-transfer

The Employment Appeal Tribunal has given a rare judgment on a case where an employer was permitted to change employee’s contract terms and conditions after a TUPE transfer. Regulation 4(4) provides that post-transfer changes to terms and conditions will be void if it is deemed because of the transfer itself. The case illustrates an example of when such a change is permitted under regulation 4(4). Tabberer and others v Mears Limited and others.

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The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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