The judgment of the Employment Appeal Tribunal in McFarlane v Relate Avon is another in a long line of authorities in which discrimination on the grounds of religion and sexual orientation have appeared to come into conflict. In such cases, there is often unhelpful talk about one set of rights ‘trumping’ another but this just misses the point. In McFarlane, Justice Underhill followed the decision of his predecessor as President, Justice Elias, in London Borough of Islington v Ladele and was undoubtedly correct to do so.

The reason why ‘trumping’ is the wrong word is that there are certainly plenty of situations in which Christians and other religious people are subjected to criticism that goes far beyond what is necessary to ensure equality for gay men and lesbians. In such cases, a claim for religious discrimination ought to succeed, even if the disciplinary action which provides the background is justified. There is perhaps an example here although, as noted at paragraph 12, it was not appealed. This is the claim of harassment.

It does not appear to be disputed that colleagues of the claimant circulated a letter describing him as ‘homophobic’. This account is supported by at least one source unlikely to favour his case. The next question is why this suggestion was made and it simply does not follow that, because his dismissal was on the grounds of his actions rather than his beliefs, the same can also be said of this remark. To call someone homophobic is an attack on the beliefs at least as much as the actions of that person, if not more so. Justice Underhill himself noted in Richmond Pharmacology v Dhaliwal that some examples of harassment do not require a comparator and I would submit that this falls squarely into that category.

A libel court would surely agree with me that the label ‘homophobic’ is more than merely a criticism of behaviour but, if this seems extreme, consider a scenario in which the word is preceded or followed by a stream of unpleasant expletives. I do hope that this case is not regarded as excusing employers from the need to be more careful about their use of intemperate language in these situations because, if so, then the argument that one set of rights has ‘trumped’ another may begin to seem like it is a valid one.

The Employment Appeal Tribunal decision in Yorkshire Maintenance Company v Farr concerned penalty clauses in employment contracts, an area of law in which there are surprisingly few authorities. The respondent had attempted to rely upon a clause stating that wages could be deducted in the event that timesheets were not signed by the client. The tribunal did not accept this, not expressly because the clause was a penalty, but because it was held to require timely deductions and so the right to do so had lapsed. Judge Pugsley rejected this approach and felt that more exploration of the facts was necessary.

The argument was that a deduction was justified due to the frequency with which clients refuse to pay if a timesheet has not been authorised by them. This seems a surprising claim on the facts, the claimant having stated that he had never previously had worksheets signed, and the tribunal having appeared to find in his favour on this point. It is hard to deny that it is reasonable to make such a deduction if a client does not, in fact, pay, and I would be willing to accept that a clause which realistically reflects the chance of a client failing to pay would also be justified. However, an automatic deduction of wages for the entire period covered by a timesheet surely does not constitute a genuine pre-estimate of the loss.

An article in the Guardian reports on a fascinating case which began at the Manchester Employment Tribunal earlier in the week. It represents part of the fallout from the construction industry blacklist which I discussed in this post. Now many of the people affected (twenty three of them) have brought claims against the companies who put their names on the list in the first place. As I said at the time, there is no obvious remedy in employment law but there are some interesting submissions to be made.

Paragraph 355.02 of Division NI of Harvey on Industrial Relations sets out the basic structure of the argument. Workers are protected from being subjected to detriments on grounds related to trade union activities. From the case of Woodward v Abbey National, providing a negative reference is capable of being a detriment even where an employment relationship has come to an end and so the same must surely apply to the act of adding a name to a blacklist. However, there are two further problems in this case. Firstly, the claims are out of time by several years because the clock starts running from the date of the detriment. Secondly, there has only been protection for workers against post-employment detriments since the Employment Relations Act 2004 but many of the claims in this case precede the date of it coming into force. Furthermore, some of the workers were victimised by end users with whom they had no contract, and so they would seem not to qualify as workers, even under the amended law.

The time point is easier to deal with. There is considerable assistance from the decision of the Court of Appeal in London Borough of Southwark v Afolabi, in which a race discrimination claim was allowed to proceed when the claimant did not discover the relevant acts until nine years later. Afolabi concerned the extension of time on a just and equitable basis while, in this case, it will have to be shown that it was not reasonably practicable to bring the claims in time, but the point is certainly a persuasive one.

Moving on to the extent of the protection, before the changes, only employees were protected and only against action short of dismissal. When the amendments were made, the transitional provisions made it clear that they did not apply to detriments taking place before 1st October 2004. However, it is obvious that the main reason for the changes was criticism that the old law did not provide sufficient protection for freedom of association to comply with Article 11 of the European Convention of Human Rights. If so, perhaps the interpretative obligations in section 3 of the Human Rights Act will allow the unamended statute to be read in accordance with the current one and the transitional provisions to be disregarded.

This leaves the claimants who are suing end users in the absence of a contract. For them to succeed, either the definition of a worker would have to be extended further than it is in any other legislation or it would have to be found that human rights make it necessary to imply a contract to provide personal services, distinguishing James v Greenwich. Still, it would be rather surprising if they were not entitled to some sort of protection and so it is entirely conceivable that this case could end up in Strasbourg.

The Court of Appeal decision in Royal Bank of Scotland v Allen concerns the provision of goods and services under the Disability Discrimination Act. The case turned largely on its facts and was decided using the existing authorities about the meaning of a ‘reasonable alternative method’ of providing the service. However, there was one point which could later become relevant in an employment context.

Section 21(2) of the Act says that a service provider must take such steps, by way of adjustments, as it is reasonable “for him to have to take”. This awkward wording appears deliberate but the judgment confirms that the words “have to” add nothing of significance to the test. Neither Lord Justice Dyson nor Lord Justice Wall could think of any situation in which it would be reasonable to take certain steps but it would not be reasonable to have to take them. It is hard to argue with this and so the outcome reflects badly on the draughtsman of the statute rather than the Lord Justices of Appeal. In any event, identical statutory wording appears in section 4A(1) of the Act, which concerns the adjustments that should be made by an employer, and so it is extremely likely that this section will be interpreted in the same way.

The decision in Orr v Milton Keynes Council gets to the heart of a very difficult area of discrimination law, usually described as causation, but this is itself a problematic term, as the case demonstrates. The claimant suffered harassment for which his employer was vicariously liable, but was dismissed fairly for his rude and abusive response to it. It was held that the dismissal was not tainted by discrimination notwithstanding the racist provocation because a white employee would also have been dismissed for a comparable act of misconduct. The problem is not an entirely new one and a similar result was reached by the Court of Appeal in Sidhu v Aerospace Composite Technology, not mentioned in the judgment.

However, the analysis in Sidhu focused on the question of whether or not it was race discrimination to fail to take the context of the racist abuse into account as possible mitigating circumstances. It does not appear to have been suggested explicitly by anyone that the dismissal flowed from the tortious act of discrimination itself, even at the Employment Appeal Tribunal where the provocation was held to have occurred in the course of employment. Nevertheless, precisely such an outcome would result from the use of a ‘but for’ test, as indeed was unsuccessfully argued in Orr. Strict causation does not apply.

The problem is that, in practice, a ‘but for’ test is often used as a shorthand, an approach endorsed by no less an authority by Lord Goff in James v Eastleigh Borough Council, although it should be noted that he only said that it was appropriate in ‘most cases’. A more cautious note has been sounded in the subsequent decisions of the Law Lords, in a series of cases beginning with Nagarajan v London Regional Transport. In West Yorkshire Police v Khan, Lord Nicholls said, “Contrary to views sometimes stated, the third ingredient (’by reason that’) does not raise a question of causation as that expression is usually understood.” Instead, the reason why should be assessed subjectively, as a question of fact.

On the other hand, the approach in Nagarajan, which requires consideration of the state of mind of the alleged discriminator, can also be misinterpreted. It does not affect the principle in James v Eastleigh Borough Council that the motive for discrimination is irrelevant. Motive must be assessed only for the purposes of determining whether the treatment is less favourable, not whether the less favourable treatment can be justified in some way. The key lesson is that both the ‘but for’ approach and the ’state of mind’ approach can sometimes be convenient shorthands but they are not substitutes for a proper understanding and analysis of the case law. In particular, where an act is inherently race-neutral, such as a dismissal for aggressive behaviour, the Nagarajan approach is often likely to be more appropriate.

I was delighted to discover last week that a case I conducted, Tapere v South London and Maudsley NHS Trust, which I discussed in this post, has been reported in the Industrial Relations Law Reports at [2009] IRLR 972. It was analysed by Michael Rubenstein in his ‘Highlights’ section but I must admit that I found his reasoning rather odd.  He said, ‘However laudable such a purposive interpretation, the result of this reasoning can be seen as rather harsh in this case and could create practical difficulties more generally. A TUPE transferee is in no more advantageous position in respect of contractual rights than the transferor, but he is in no worse position either. If there had been no TUPE transfer, given the mobility clause, it is hard to see how the locations to which an employee could be sent would be frozen as at the time they entered the employment. If the locations operated by the PCT expanded, that would “increase the scope of the geographical area in which the employee could be required to work.” Why should the same principle not apply in respect of the locations operated by the transferee?‘

This is a weak analogy and, moreover, a similar suggestion could be made for most contractual terms protected by TUPE. For example, it is easy to see how a personal assistant role could evolve slowly over time into a general administrative role but it does not follow at all that a transferee could refuse to employ a personal assistant and offer her a job in administration instead, for three reasons. Firstly, in the former case, the changes have happened slowly over time, giving the employee time to adapt to them. Secondly, in the former case, there has clearly been agreement, either express or implied, to the changes. Finally, and most crucially, it is of enormous significance whether the changes are made for a reason related to the transfer. This is why the TUPE Regulations were originally enacted, after all.

As for practical difficulties, what no commentator seems to have realised, perhaps because it was not necessary to decide the case, is that there were, as a matter of fact, no practical difficulties in Tapere at all. The transferor and the transferee were both NHS Trusts with a close relationship. They frequently did work for one another (hence the service provision change) and they often allowed one another to use their property. This is how the claimant was able to remain at her old place of work for six months after the transfer and there would have been utterly no impediment for her to have continued to do so.

A harder situation which might arise under TUPE would be if there was a transfer between entities that did not share any property. However, the appropriate non-TUPE analogy would be with the closure of a place of work and its reopening some miles away. In such a case, best practice would be to make the employees who do not want to move redundant and any of them who unreasonably refused alternative employment would lose their entitlement to redundancy payments. An employer that forced employees to move outside the scope of their employment contracts would expect to face claims for constructive unfair dismissal. This approach has commendable flexibility because it encourages employers to offer a variety of alternatives, avoiding the very real problem that employees have no choice about the effects of TUPE. It also prevents TUPE from being misused as a mechanism to avoid redundancy payments.

A possible objection is that such a redundancy would be a dismissal related to the transfer to which my answer would be that, following Tapere, so would a unilateral variation of a mobility clause. However, TUPE allows such a dismissal if for an economic, technical or organisational reason entailing changes in the workforce. It is easy to see how a redundancy situation caused by employees not wishing to move location can entail such changes but it is more difficult to see how a change of location alone can do so.

Since Malcolm, the issue of knowledge of a disability has gained a great deal of importance because it is a requirement for a successful claim for a failure to make reasonable adjustments, which is now the most important head of claim. It has also become a requirement for disability-related discrimination in the unlikely event that the comparator problem is overcome. Although there is no statutory test in the latter case, the principles are likely to be similar to those that arise in the statutory test for knowledge in a reasonable adjustments case and so clarification of these principles is of considerable importance.

Clarification has not been achieved by the case of Department of Work and Pensions v Alam, in which the Scottish Employment Appeal Tribunal states that an employer is able to make out this defence if it is ignorant of either the disability or its effects and, therefore, it must be aware of both for a claim to succeed. This is contrary to the earlier authority of Eastern and Coastal Kent PCT v Grey, which said that ignorance of both is required for the defence, although this was admittedly not very helpful, being notable as the only Employment Appeal Tribunal judgment in the last year to be internally inconsistent. The decision by Justice Silber to remit the case when it was apparently quite unnecessary to do so was interpreted by Lady Smith as showing that it did not really mean what it appeared to say on its face.

However, the real problem with both of these judgments is that they are trying to carry out statutory interpretation in a vacuum. It is difficult to properly get a grip on the meaning of a word like ’and’ in a complex piece of legislation without trying to understand what is being said from a broader perspective and there are many issues which are completely ignored but which could be of considerable assistance. For example, the relevant section also includes the word ‘disability’ and, as I discussed in this post, this can mean both the underlying medical condition and the impairment caused by it. As this has the result of making the ‘disability’ and its effects equivalent for all purposes, neutralising the use of the word ‘and’, this suggests that Grey is correct, although for reasons different from those given in the decision.

On the other hand, I am sympathetic to the result of the Alam case, and of Ridout v T C Group, which it cites. This is another reason why I think that the word ’disability’ should refer only to the effects of the impairment and not at all to the diagnostic label. If so, there would be a defence if an employer knew about a medical condition but not its effects but no defence if, for example, it knew that an employee used a wheelchair without knowing the reason why. This approach is also consistent with the logic of constructive knowledge. A person who knows the effects of a disability knows everything necessary in order to make reasonable adjustments but a person who knows only the label does not. This issue must be urgently considered by a higher court to ensure the coherence of disability discrimination law.

Judgment has now also been given by the Employment Appeal Tribunal in this case, further to my earlier discussion of the submissions here. The outcome, that a passionate belief in climate change, accompanied by a moral imperative to do something about it, is capable of constituting a philosophical belief for the purpose of the Religion or Belief Regulations, is contrary to my original intuition but unsurprising, having had the benefit of hearing the arguments made on the day. The case of John Bowers QC that the test is narrower than the one for Article 9 of the Human Rights Act is attractive as a matter of policy, to avoid the opening of floodgates, but is impossible to reconcile with comments made by Justice Elias, as he then was, in Eweida, a view that is supported by the Framework Directive itself.

My original disquiet remains. Parliament did not originally legislate for political belief, and Justice Burton is in no doubt that the belief is political in this case, but now it seems that, not only will this lead to more claims, it will also be inconsistent in its effects, protecting some political beliefs but not others. Worse, it may protect those political beliefs which are dogmatically held more easily than those based on the wisdom of experience. Perhaps the solution is to extend protection to all political beliefs, as in Northern Ireland, although exemptions would presumably have to be made, for example, for editorial staff at the Guardian or the Daily Telegraph. However, legally speaking, the decision cannot be faulted.

The Court of Appeal judgment, which I first discussed in this post, has now been made available online.