ABG Employment Newsletter – September 2010

Victimisation through provision of poor job reference

An employer will be guilty of victimisation if detrimental action is taken against an employee because the employee did a protected act under discrimination legislation, for example, if the employee made an allegation of discrimination or brought a claim for discrimination. The following case illustrates that an employer can be liable for victimisation of a former employee and have to pay compensation for future loss of earnings.

In the case of Bullimore v Pothecary Witham Weld Solicitors the employers provided a poor job reference on a former employee to her prospective new employer because she had previously brought a claim of sex discrimination against the firm. The reference referred to the claim and the employee’s poor relationship with the partners in the firm and that she could be inflexible in her opinions. As a result of this poor reference the new employer withdrew its job offer.

In these circumstances both the past employer and the prospective new employer were found guilty of unlawful victimisation and the past employer was ordered to pay compensation for future loss of earnings even though the prospective new employer had already reached a settlement with the Claimant.

Discrimination and harassment through pregnancy gossip

It is unlawful to discriminate against an employee because she is pregnant or to harass her where the harassment is related to her pregnancy. In the case Nixon v Ross Coates Solicitors it was held that gossip about an employee’s pregnancy amounted to unlawful discrimination and harassment.

The gossip stemmed from events at the firm’s Christmas party when the employee was seen kissing another member of staff and then going in to a hotel room with him. Some weeks later she announced she was pregnant.

Very quickly the office grapevine went into overdrive, with speculation about who the child’s father might be. The employee brought a grievance which was not dealt with properly and subsequently she resigned and claimed constructive dismissal as well as discrimination and harassment.

Her constructive dismissal claim was upheld and although the Employment Tribunal rejected her claim for discrimination and harassment, the EAT has now ruled that the Tribunal were wrong not to have made findings of pregnancy related discrimination and harassment. The EAT was clear that the gossip was connected with her pregnancy and constituted unwanted conduct which affected her dignity or created a degrading, humiliating or offensive environment at work.

The fact that the employee had acted in a way which was bound to provoke gossip was no defence for the employer.

Discrimination on the grounds of religion or belief

The EAT has upheld the Tribunal’s decision in a case brought against Greater Manchester Police Authority that a belief in spiritualism, life after death and the ability of mediums to contact the dead is capable of amounting to a religious or philosophical belief and thus a protected characteristic under the Equality Act.

The employee had been taken on as a trainer by the police. His employment was terminated after less than three weeks and he then brought a Tribunal claim alleging that he had been dismissed because of a religious or philosophical belief. He was an adherent of the Spiritualist Church and said he had a belief in spiritualism, life after death and that the dead can be contacted through mediums or psychics.

Despite this finding it remains to be seen whether the employee will be successful in establishing that the reason for his dismissal was because of his religious/philosophical beliefs.

Redundancy during Maternity Leave

Under the Maternity Leave Regulations an employee whose job becomes redundant during her maternity leave is entitled to be offered any suitable available vacancy which her employer or an associated employer has. For this to apply, the work must be suitable and appropriate for the employee to do and her terms and conditions must not be substantially less favourable than those attaching to her previous job.

Where an employer makes an employee redundant in breach of these provisions the dismissal will be automatically unfair. However there is no obligation to offer a vacancy if it is at a different location which is substantially less favourable to the employee and which therefore does not amount to a suitable alternative vacancy.

This is demonstrated by the case of Simpson v Endsleigh Insurance Services Limited. In this case the employee worked in the London office which was closed whilst she was on maternity leave and the work was transferred to Cheltenham. She was sent details of alternative vacancies at Cheltenham, but expressed no interest in any of those vacancies. In those circumstances her redundancy was confirmed.

Her subsequent claim for unfair dismissal was rejected as the Tribunal and EAT decided that she was not willing to relocate to Cheltenham and so the vacancies there could not be regarded as suitable or appropriate for her. There was no breach of the Maternity Leave Regulations. Her argument that she should have been offered one of the jobs at Cheltenham rather than simply being invited to apply was rejected.

The comments in this note are of a general nature only. Full advice should be sought on any specific problems.

ABG Employment Newsletter – August 2010

Christopher Gigg 
[email protected] 
+44 (0)115 934 3310

David Hardstaff
[email protected]
+44 (0)115 934 3323

Kathryn Meir
[email protected]
+44 (0)115 934 3308