Discrimination Case Update
We look at two recent decisions of the Employment Appeal Tribunal (“EAT”) in relation to claims of unlawful discrimination.
Religion and belief discrimination
In our recent blog we considered the protection offered to philosophical beliefs, part of the protected characteristic of “religion or belief”, and how an employment tribunal should determine which beliefs qualify for protection.
The recent EAT decision in the case of Omooba v Michael Garrett Associates and Others suggests that some limits may exist in terms of the extent of protection offered to employees with qualifying protected religious or philosophical beliefs.
The Claimant was a Christian and an actress, hired to play the role of a lesbian woman in the stage play The Color Purple. When her casting was announced, a historical public Facebook post was uncovered wherein she expressed her belief in the truth of the Bible, that homosexual acts were sinful, and that someone cannot be born gay. The details of that post gained considerable comment on social media following her casting. The Claimant was unwilling to distance herself from her earlier comments.
The theatre was concerned about the social media storm and how it could overshadow the play, or impact on the cast. There was concern about a possible boycott. A decision was taken to terminate Ms Omooba’s engagement for the play but to pay her the agreed fee anyway. She brought claims for religious discrimination and harassment. Prior to the ET hearing she stated that she would have withdrawn from the play anyway, had her engagement not been terminated.
The ET found that all the relevant aspects of the Claimant’s beliefs were protected as religious beliefs. However, the ET concluded that the Claimant had not been discriminated against due to her beliefs. The decision to end her engagement was not due to her beliefs, or a manifestation of them, but rather due to commercial concerns – adverse publicity and audience reaction – which could be viewed as separate from the Claimant’s beliefs. The ET referred to the “commercial and artistic reality” faced by the theatre.
This decision was upheld by the EAT, which considered that the ET was entitled to find that the Claimant’s religious beliefs were part of the context for what happened, but not part of the theatre’s reasons for cancelling her engagement. In other words, the fact that the social media storm was connected with the Claimant’s protected beliefs did not mean that the termination was also due to her beliefs.
The EAT also upheld the ET’s decision to award the whole costs of the case against the Claimant, on the basis that the claim had been funded by Christian Concern and the Christian Legal Centre, so their financial resources should be considered in relation to the award of costs. It should have been obvious that the claim had no reasonable prospect of success, so it was unreasonable to pursue it. The ET was entitled to find that the funders used the case as a publicity opportunity rather than fighting it on its merits.
This decision highlights the complexity of these issues but helpfully confirms that employers have scope to argue that there is a distinction between an employee’s beliefs, and other potentially unrelated circumstances that are connected to them, and to argue that the decision taken by an employer was not by reason of a protected religious or philosophical belief. However, great care should be taken dealing with these complex, difficult and sensitive cases, and expert advice should be taken.
Alternative roles as a reasonable adjustment
The EAT considered in Rentokil v Miller whether an employer might be obliged to offer an alternative role on a trial basis, to an employee with a disability.
An employee carrying out a field-based role was diagnosed with multiple sclerosis, and became unable to carry out his role. He applied (along with others) for a service administrator role but was unsuccessful, as his scores in the assessment process were poor. As there were no other alternative roles, he was dismissed on grounds of capability (medically unable to do the job). He was not offered re-training or a trial period.
An employment tribunal (“ET”) upheld the employee’s claim of disability discrimination, deciding that if the company had doubts about Mr Miller’s ability to do the administrator job, it should have offered it to him on a trial basis. There was no real evidence before the ET that Mr Miller had been treated any differently from any other candidate for the other role, or given any special consideration for his disability – he had simply been able to apply competitively with other candidates.
The employer appealed, arguing that it cannot, as a matter of law, be a reasonable adjustment to offer a role on a trial basis, as a trial period is a “tool” to allow the employer to make decisions, not a substantive step in itself. The company also argued that if an employer genuinely and reasonably believes that an employee is unsuitable for an alternative role, the ET cannot override that view.
The EAT rejected the employer’s arguments and upheld the ET’s findings that the employee had been subject to disability discrimination. The EAT decided that:
- giving a new job subject to a trial period can certainly be a reasonable adjustment to avoid an employee being dismissed, and
- an employment tribunal is not required to follow the employer’s views as an employee’s suitability for an alternative role. The ET is allowed to make a finding objectively, based on the evidence at the hearing, considering the suitability of the role, whether the employee met the essential requirements of the role, and the likelihood or otherwise of the trial period being successful. The ET need not be satisfied that the trial period would have been successful, nor does the obligation on an employer to make adjustments only arise if it considers that an adjustment will, or is likely to be successful. If the adjustment might be successful in removing the disability related disadvantage, that may be enough, if it would have been reasonable to make the adjustment.
This decision emphasises that dismissing an employee for disability-related ill health must be a last resort, and alternative employment may have to be offered (perhaps on a trial basis) even if the employer has genuine doubts as to whether the employee is able to perform the other role.
Expert advice should, as always, be taken, and our experienced employment team is available to help.
This update contains general information only and does not constitute legal or other professional advice.
Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012 / Connect with Douglas on LinkedIn
