The case of Eweida v British Airways concerns a Christian woman who was disciplined by her employer for wearing a cross, contrary to its dress code. Her claim has been rejected for the third time, this time by the Court of Appeal. The main point in the appeal is the suggestion by Karon Monaghan QC that a policy can give rise to indirect discrimination even if there is only one person put at a disadvantage as a result. Given the clear wording of the statute, the doubt expressed about this submission is no great surprise, despite an ingenious argument that the words ‘would put…at a disadvantage” means that a hypothetical group should be considered even where no such group exists. In any event, the majority goes on to hold that, if the case is put in this new way, any disadvantage would inevitably be justified.

The decision in Parkwood Leisure v Alemo-Herron is authority for the proposition that, following a TUPE transfer, an employee is not entitled to benefit from any changes to a collective agreement that are negotiated with the transferor after the transfer. The most interesting aspect of the case is its treatment of European law. The English authorities had developed in line with a more generous interpretation of TUPE but the European Court of Justice had taken a narrower view. The Employment Appeal Tribunal held that the English cases remained good law even though they were no longer necessary to comply with the Directive. The Court of Appeal disagreed, saying that TUPE had been incorrectly interpreted.

Where disciplinary proceedings could ultimately terminate an employee’s career, it is highly likely that s/he should be entitled to legal representation at the disciplinary hearing. In the case of The Governors of School X v G [2010] EWCA Civ 1, the Court of Appeal found that the employee in question was entitled to legal representation.
 M, a 24 year old teaching assistant, was accused of having kissed and had sexual contact with a 15 year old student, which tended to show an offence under s.16 of the Sexual Offences Act 2003. Charges were not brought by the police; however, the Governors of School X brought disciplinary proceedings against M and dismissed him for a breach of trust. The Governors were obliged to report M to the Independent Safeguarding Authority (“ISA”) who have the power to prohibit M from teaching or working with children. M was told that he was entitled to bring a colleague or a trade union representative. He was not entitled to bring a lawyer to the disciplinary hearing.
The question before the Court of Appeal was whether M was entitled to legal representation at his disciplinary hearing, given that the general rule is that an employee is only entitled to bring a colleague or a trade union representative. 

Article 6 of the European Convention on Human Rights provides that:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”

But goes on to say that anyone charged with a criminal offence is, amongst other things, entitled to legal representation.
Here, the Court of Appeal held that there was every likelihood that the outcome of the disciplinary process, where there has been a finding of abuse of trust by virtue of sexual misconduct, will have a profound influence on the decision-making procedures of the ISA relating to the barred list. And, therefore, the disciplinary proceedings are a determinant of the claimant’s right to practise his profession, and covered by Article 6.
The Court of Appeal held that the jurisprudence was clear that Article 6 “civil” does not necessarily entail a right of representation, but may do so. It goes on to quote the case of International Transport Roth GmbH:
“As I see it, there must be something in the nature of a sliding scale, at the bottom of which are civil wrongs of a relatively trivial nature, and at the top of which are serious crimes meriting substantial punishment. Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one.”

The Court upheld the High Court’s view that in this case, Article 6 “civil” required that the Claimant should be afforded the opportunity to arrange for legal representation in those proceedings should he so choose, and therefore it was irrelevant whether the disciplinary proceedings brought by the governors amounted to being charged with a criminal offence. “The jurisprudence is increasingly to the effect that what matters is the gravity of the issue in the case, rather than the case’s classification as civil or criminal. That is the primary driver of the reach of the rights which Article 6 confers.”

careful to emphasise that the case does not raise any issue of legal principle but it is difficult to see how it can avoid doing so, in light of the conclusion that a deliberate and cynical lie amounts to unreasonable conduct necessitating an award of costs. On its face, this appears uncontroversial, but the problem is that, in most cases, one or other of the parties is lying and most lies are both deliberate and cynical. It would seem to follow that any claimant who is alleging an act of discrimination or, indeed, any employer who is denying one, is at serious risk of such an award.

Suffice to say, this is highly unsatisfactory in light of other dicta that costs in the Employment Tribunal should be exceptional. There is a real danger that people with genuine claims will be deterred at least as much as those with fraudulent ones. Even worse, authorities that appear to be widely applicable but which purport to establish no general principle are prone to result in inconsistency and uncertainty such that all parties could legitimately fear an award of costs against them without any confidence of recovering their own costs if they are successful, which is worse thancareful to emphasise that the case does not raise any issue of legal principle but it is difficult to see how it can avoid doing so, in light of the conclusion that a deliberate and cynical lie amounts to unreasonable conduct necessitating an award of costs. On its face, this appears uncontroversial, but the problem is that, in most cases, one or other of the parties is lying and most lies are both deliberate and cynical. It would seem to follow that any claimant who is alleging an act of discrimination or, indeed, any employer who is denying one, is at serious risk of such an award.

Suffice to say, this is highly unsatisfactory in light of other dicta that costs in the Employment Tribunal should be exceptional. There is a real danger that people with genuine claims will be deterred at least as much as those with fraudulent ones. Even worse, authorities that appear to be widely applicable but which purport to establish no general principle are prone to result in inconsistency and uncertainty such that all parties could legitimately fear an award of costs against them without any confidence of recovering their own costs if they are successful, which is worse thancareful to emphasise that the case does not raise any issue of legal principle but it is difficult to see how it can avoid doing so, in light of the conclusion that a deliberate and cynical lie amounts to unreasonable conduct necessitating an award of costs. On its face, this appears uncontroversial, but the problem is that, in most cases, one or other of the parties is lying and most lies are both deliberate and cynical. It would seem to follow that any claimant who is alleging an act of discrimination or, indeed, any employer who is denying one, is at serious risk of such an award.

Suffice to say, this is highly unsatisfactory in light of other dicta that costs in the Employment Tribunal should be exceptional. There is a real danger that people with genuine claims will be deterred at least as much as those with fraudulent ones. Even worse, authorities that appear to be widely applicable but which purport to establish no general principle are prone to result in inconsistency and uncertainty such that all parties could legitimately fear an award of costs against them without any confidence of recovering their own costs if they are successful, which is worse than

Temporary Technical Page - Created by Web Staff - will disappear soon - sorry for any inconvenience!

m is that, in Bleuse, it is far from clear that the case could not have been brought in Austria and so there is no obvious reason why an English tribunal had to accept jurisdiction in order to provide an effective remedy. The argument that this is the case in Duncombe is much more compelling but this has the result that the correctness of the wider ratio in Bleuse is not considered. Perhaps the strongest conclusion to be drawn from it all is that there is a difficulty with Lawson v Serco, which really ought to give jurisdiction in a case of unfair dismissal wher m is that, in Bleuse, it is far from clear that the case could not have been brought in Austria and so there is no obvious reason why an English tribunal had to accept jurisdiction in order to provide an effective remedy. The argument that this is the case in Duncombe is much more compelling but this has the result that the correctness of the wider ratio in Bleuse is not considered. Perhaps the strongest conclusion to be drawn from it all is that there is a difficulty with Lawson v Serco, which really ought to give jurisdiction in a case of unfair dismissal wherm is that, in Bleuse, it is far from clear that the case could not have been brought in Austria and so there is no obvious reason why an English tribunal had to accept jurisdiction in order to provide an effective remedy. The argument that this is the case in Duncombe is much more compelling but this has the result that the correctness of the wider ratio in Bleuse is not considered. Perhaps the strongest conclusion to be drawn from it all is that there is a difficulty with Lawson v Serco, which really ought to give jurisdiction in a case of unfair dismissal wherm is that, in Bleuse, it is far from clear that the case could not have been brought in Austria and so there is no obvious reason why an English tribunal had to accept jurisdiction in order to provide an effective remedy. The argument that this is the case in Duncombe is much more compelling but this has the result that the correctness of the wider ratio in Bleuse is not considered. Perhaps the strongest conclusion to be drawn from it all is that there is a difficulty with Lawson v Serco, which really ought to give jurisdiction in a case of unfair dismissal wherm is that, in Bleuse, it is far from clear that the case could not have been brought in Austria and so there is no obvious reason why an English tribunal had to accept jurisdiction in order to provide an effective remedy. The argument that this is the case in Duncombe is much more compelling but this has the result that the correctness of the wider ratio in Bleuse is not considered. Perhaps the strongest conclusion to be drawn from it all is that there is a difficulty with Lawson v Serco, which really ought to give jurisdiction in a case of unfair dismissal wherm is that, in Bleuse, it is far from clear that the case could not have been brought in Austria and so there is no obvious reason why an English tribunal had to accept jurisdiction in order to provide an effective remedy. The argument that this is the case in Duncombe is much more compelling but this has the result that the correctness of the wider ratio in Bleuse is not considered. Perhaps the strongest conclusion to be drawn from it all is that there is a difficulty with Lawson v Serco, which really ought to give jurisdiction in a case of unfair dismissal wher