1. Ladele v London Borough of Islington (Court of Appeal) Religious Discrimination
2. O’Neill v Buckinghamshire County Council (EAT) Risk Assessments
3. Prison Officers Association v Gough (EAT) Simultaneous Employment
4. Sahota v The Home Office (EAT) IVF Treatment and Sex Discrimination

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Ladele v London Borough of Islington (Court of Appeal) [2009] EWCA Civ 1357

Religious Discrimination

This Court of Appeal decision was based on a decision of the Tribunal that discrimination had been established and a decision of the EAT that it had not been and that the Tribunal had erred in law. Ms Ladele appealed to the Court of Appeal.

By way of background, Ms Ladele was a strongly committed Christian and a registrar of births, deaths and marriages. Ms Ladele considered that the Civil Partnership Act which allows males and females to enter into civil partnerships with the same sex to be contrary to God’s laws and a sin. Ms Ladele made it clear to her employer that she would have difficulty conducting civil partnerships because of her religious beliefs.

The Council offered her the opportunity to undertake the simple signing process but this was not accepted.

The Tribunal found the following acts to constitute unlawful acts of direct discrimination:

* designating her a Civil Partnership Registrar and requiring her to carry out duties in breach of her contract;
* subjecting her to the disciplinary process from May 2007 onwards;
* finding her guilty of gross misconduct and threatening her with dismissal if she did not perform these duties;
* failing to consider her for the post of additional superintendent registrar when the incumbent was on maternity leave;
* failing to address allegations that she was homophobic;
* failing to address her own concerns that she had been treated in a discriminatory fashion;
* failing to apply the Code of Conduct and Dignity for All Policy to the gay registrars;
* the fact that Mr Daniels, who carried out the investigation, had referred to her letter of 18 April as itself an act of gross misconduct;
* and sharing details with other members of staff about action it was proposed to take against the claimant in breach of the council’s confidentiality policy.

The Council appealed to the EAT. The EAT held that the Tribunal had erred in law and that there was no proper basis for a Tribunal to conclude that any of these forms had been established.

Ms Ladele appealed to the Court of Appeal. The Court of Appeal upheld the EAT’s decision with an important quotation:

“The explanation for less favourable treatment does not have to be a reasonable one; it may be that the employee has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the Claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one”.
http://www.bailii.org/ew/cases/EWCA/Civ/2009/1357.html


O’Neill v Buckinghamshire County Council (EAT) UKEAT/0020/09

Risk Assessments

The EAT held on 5 January 2010 that for an employer to fall under a duty of care to conduct a risk assessment in the workplace in relation to pregnant employees the following pre-conditions need to be met:

(a) The employee notifies the employer in writing that she is pregnant;
(b) The work is of a kind which would normally involve a risk of harm or danger to the health and safety of the expectant mother of her baby;
(c) The risk arises from either processes, working conditions or physical, chemical or biological agents in the workplace.

The EAT concluded that pregnant workers are not automatically entitled to a work assessment under Regulation 16 Management of Health and Safety at Work Regulations 1999 in the absence of evidence that the work involved a risk as to health and safety to the expectant mother.

Based on the assumption that failure to carry out a risk assessment that is required is discrimination, employers would be better erring on the side of caution if unsure, as proof of detriment is not always necessary.
http://bit.ly/7r3UrT


Prison Officers Association v Gough & Anor UKEAT 0405_09_1712

Simultaneous Employment

The Judgement in this case was delivered on 17 December 2009. The EAT were asked to decide on whether the Tribunal was entitled to hold that the Claimants were employees of the Prison Service as well as being at the same time employees of the Prison Service Association.

Mr Gough was receiving an annual salary from Prison Service and an annual “remuneration” from the Respondent. This payment was treated by the Inland Revenue as salary. The work with the Respondent took up approx 15% of his time.

The EAT concluded that the Claimants were employees as they worked for the Respondent in return for not insubstantial payments fixed in advance. They worked under a degree of control and there was mutuality of obligation. Their duties went beyond the Constitution.

The EAT held that the Tribunal had been correct as:-
(a) an individual can at the same time have two jobs with two different employers provided they are compatible with each other;
(b) the proper test as set out in 102 Social Club & Institute Ltd v Bickerton was applied to the Claimants' work with the Respondent (i.e. was it a honorarium or salary and was it fixed in advance).
http://www.bailii.org/uk/cases/UKEAT/2009/0405_09_1712.html


Sahota v The Home Office UKEAT 0342_09_1512

IVF Treatment and Sex Discrimination

The Claimant appealed the Tribunal’s decision and Judgement was delivered on 15 December 2009.

The Tribunal concluded that the acts complained of did not amount to a detriment/ harassment. The issue for the EAT was whether an employee receiving IVF treatment who was discriminated against was to be regarded as discrimination on the grounds of her sex or of pregnancy.

The Appellant complained that ten acts of direct discrimination and harassment were carried out by her line manager and her employer. The EAT concluded that whilst the Appellant had reason to believe that the Respondent had mishandled the question of her absences for IVF treatment, it does not follow that the actions by the Respondent were done on the basis of that characteristic and therefore her appeal was dismissed.

In relation to comparing an employee undertaking IVF and being pregnant the EAT stated the following:

(a) The woman undergoing IVF treatment is clearly to be regarded as pregnant for the period following the implantation of the fertilised ova until the end of the protected period.
(b) Prior to implantation, less favourable treatment of a woman on the ground that she is receiving IVF treatment may constitute sex discrimination during the limited, closely defined period. This period in question is the advanced stage between the follicular puncture and the immediate transfer of the in vitro fertilised ova into the uterus.
http://www.bailii.org/uk/cases/UKEAT/2009/0342_09_1512.html