Discrimination damages for insincere job applications

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Discrimination damages for insincere job applications

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If a person applies for a job only for the purposes of bringing a discrimination claim, rather than genuinely wanting the job, they will not be entitled to compensation under discrimination law.

A German company, R + V Allgemeine Versicherung AG, advertised for graduate trainees in various disciplines, including law. Applicants to the legal roles were required to have passed their qualifications, done an employment option, and/or have medical knowledge.

Mr Kratzer applied for a legal position. He stated that he was a lawyer and former manager with an insurance company. He said he was going to do a course in employment law and, as he had dealt with the death of his father, he had experience of dealing with a large medical law file.

Mr Kratzer’s application was rejected, after which he wrote to the company demanding compensation of €14,000 for age discrimination. The company invited him to an interview, stating that his application had originally been rejected via an automatically generated response. Mr Kratzer declined and brought a claim for damages for age and sex discrimination.

The Court of Justice of the European Union held that Mr Kratzer was not entitled to compensation. Discrimination legislation is intended to protect those who are victims of discrimination whilst they are seeking employment. As Mr Kratzer was neither a victim nor seeking employment, his claim had no basis.

Kratzer v R + V Allgemeine Versicherung AG (C-423/15)

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Injury to feelings payment for sexual harassment

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Injury to feelings payment for sexual harassment

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A woman who was sexually harassed by her employer has been awarded £14,000 as compensation for injury to feelings.

Ms Majid was employed by AA Solicitors while she was taking the legal practice course. The firm’s only solicitor, Mr Ali, sexually harassed Ms Majid in a number of ways. This included asking her out, commenting on her figure, talking about putting a bed in the spare office, and touching her in ways that made her feel uncomfortable. Ms Majid was dismissed once she rejected Mr Ali’s advances.

The majority of Ms Majid’s claims for sexual harassment were upheld. The Employment Tribunal awarded Ms Majid a modest sum for lost earnings, £14,000 for injury to feelings and £4,000 in aggravated damages.

The award in this case is notable, as it is likely significantly more than Ms Majid earned in the 6 weeks or so she was working at the firm.

AA Solicitors Ltd (t/a AA Solicitors) and another v Majid [2016] UKEAT 0217/15

Privacy Shield – employers’ data protection duties

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Privacy Shield – employers’ data protection duties

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Now that the European Commission has adopted the Privacy Shield (which replaces “Safe Harbour”), there are steps which US companies will need to take to ensure that they comply with data protection law when transferring data from the EU and EU companies need to take if transferring data to the US.

Since the old system, the ‘Safe Harbour’ regime, was found to be invalid by the Court of Justice of the European Union, the Privacy Shield has been approved to replace it. It requires companies based in the US to self-certify their compliance to the framework. The US Department of Commerce is now accepting certification requests.

After that point, companies will need to self-certify on an annual basis, publish a privacy policy on their websites, have a procedure for responding to complaints within 45 days and comply with the various Privacy Shield principles (which are very similar to our own under the Data Protection Act). The US Department of Commerce will monitor companies to ensure that all requirements are met.

EU companies need to ensure that any company in the US to whom they send data is appropriately signed up.

Headteacher dismissed for relationship with sex offender

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Headteacher dismissed for relationship with sex offender

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A headteacher’s decision not to inform her school of her non-romantic relationship with a convicted sex offer was a fair basis for dismissal.

A was appointed as a headteacher of a primary school in 2009 having 23 years’ unblemished service in teaching. She had a long-standing relationship with a man, IS, which, whilst not romantic, was more than simply financial – they holidayed together and jointly owned a house in which IS lived and A occasionally stayed. In 2010, IS was convicted of making indecent images of children and was restricted from contact with children.

A sought advice from various sources, including police and governors at another school, regarding whether she should disclose her relationship with IS. She understood from those she spoke to that it would not be necessary.

The school later learned of A’s relationship with IS and of his conviction. It suspended A and, after investigating, dismissed her for gross misconduct on the basis that the failure to disclose conflicted with her safeguarding duties and had put children at risk. The school also relied on A’s refusal to accept that she was in error in not disclosing her relationship. A’s appeal against the decision was dismissed.

The Court of Appeal held that the school’s decision to dismiss A was within the range of reasonable responses to the situation. Given that A was a headteacher with safeguarding responsibilities, she should have realised that she had a duty to inform the school of her association with IS. The fact that A failed to report it, and then failed to acknowledge her error, made her dismissal reasonable. The Court of Appeal noted that the school did not point to exactly what risks were posed to the children by A’s association with IS, but held that this was not necessary because it was easy to imagine the potential issues.

The judgment made clear that dismissal due to an association with someone like IS would not inevitably lead to dismissal in every case. The key here seemed to be A’s reaction to the situation. However, it is not clear from this case in which circumstances teachers would be justified in not disclosing this kind of information.

A v B and another [2016] EWCA Civ 766

When are whistleblowers protected from dismissal?

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When are whistleblowers protected from dismissal?

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A dismissal can be automatically unfair even in circumstances where the decision-maker was unaware that the employee had blown the whistle.

Ms Jhuti worked for Royal Mail from September 2013. Soon after she started working there, she accompanied a colleague to a customer meeting and suspected that some of the things said in that meeting breached Royal Mail’s rules and regulatory requirements. Ms Jhuti raised her concerns with her line manager, Mr Widmer, but was told that she had misunderstood the rules and was advised to retract her allegation. She reluctantly did so.

Mr Widmer began setting Ms Jhuti unattainable performance targets and required her to attend frequent supervision meetings. After putting in several complaints to HR, Ms Jhuti went on sick leave and raised a grievance.

Another manager, Ms Vickers, was appointed to examine Ms Jhuti’s case but was unaware of her disclosures. Mr Widmer mentioned to Ms Vickers that Ms Jhuti had previously made allegations, but that she had then withdrawn them. Ms Vickers accepted this and, as Ms Jhuti was on sick leave, did not probe any further. Ms Vickers terminated Ms Jhuti’s employment for poor performance.

Ms Jhuti brought a claim for automatically unfair dismissal on the basis of her whistleblowing disclosures.

The Employment Appeal Tribunal upheld Ms Jhuti’s claim on the basis that it did not matter whether Ms Vickers, the dismissing officer, knew of Ms Jhuti’s protected disclosures when she made her decision. The EAT stated that where one person who is unaware of the true situation is manipulated by another person at managerial level, and that manager does have the true facts, the employer can be held responsible for the ultimate decision.

This case tries to circumvent the problem whereby employers could escape liability for whistleblowing dismissals by putting an unwitting manager in the role of dismissing officer.

Royal Mail Group Limited v Jhuti UKEAT/0020/16

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Headscarf ban was direct discrimination

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Headscarf ban was direct discrimination

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A French employer’s ban on employees wearing religious signs (in this case, a female, Muslim employee wearing a headscarf) was directly discriminatory on grounds of religion.

Micropole in France hired Ms Bougnaoui, a Muslim woman, to work as a design engineer. When doing so, Micropole emphasised that Ms Bougnaoui’s role would be customer-facing so that she would not be able to wear her headscarf at all times. Later, a customer complained to Micropole that Ms Bougnaoui had been wearing her headscarf and the company stated that they did not want her to wear it in future. Ms Bougnaoui refused and Micropole dismissed her. Ms Bougnaoui brought a claim for religious discrimination.

Advocate General Sharpston gave her opinion that a ban on employees wearing religious symbols or clothing when in contact with customers constitutes direct discrimination on grounds of religion. The opinion found that Ms Bougnaoui had been dismissed because of her manifestation of her religion, and the right to manifest one’s religion is protected within the religious discrimination legislation.

Advocate General Sharpston rejected the argument that there was a genuine occupational requirement for the ban to be in place as nothing suggested that Ms Bougnaoui’s performance was affected by her choice to wear her headscarf. Whilst Micropole may have a financial interest in terms of its relations with its customers, it could not justify discrimination.

This decision conflicts with the recent opinion of Advocate General Kokott in Achbita, which found a very similar policy against wearing religious symbols to be lawful. Both cases will go to the Court of Justice of the European Union for determination, at which point the Court can clarify the position.

Bougnaoui and another v Micropole SA (Case C-188/15)

A View from the Managing Partner: Brexit

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A View from the Managing Partner: Brexit

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Last time I was writing in the days after the referendum, when everything seemed very uncertain.

However, even now that the dust kicked up by the decision has settled, we really are not much closer to understanding the implications for the regulation of the employment relationship than we were before.

Underlying this is the reality (which did not emerge from the noise of the campaign) that whilst we knew what membership of the EU meant for employment law, we have far less sense of what Brexit means because, of course, there are many types of Brexit and it may not even happen (though that is probably a 48%er’s fantasy).

At one end, there is the Gove vision of an island nation entering into separate free trade deals with the nation states of the world, wholly unconnected and unshackled by EU law (without the benefits of the current relationship with the largest trading bloc in the world) and on the other there is Norwegian style access to the single market which looks rather like “membership-lite”. And, frankly, not that light; we are talking about membership of EFTA, extensive payment obligations to the EU, subscribing to much of the same law that applies to member states without the burdensome responsibility of having a say or a veto over it, with curtailed, but largely intact, four freedoms. There is probably a lot more in common between the status quo and the Norwegian model than there is between Gove’s ideal and Norway. In any event, Gove is no longer in cabinet and it is unclear which model the new May government favours.

The one thing that seems certain is that nothing is going to happen very fast. We have not even triggered the two year notice period yet. Equality law is not going to be abolished, though it may be tweaked and claims possibly capped. I suspect an earlier change would be the possibility of more positive discrimination. We will not sidestep the updated data protection directive. There will be tweaks to TUPE one day, and reversals of some of the rather generous European decisions about holiday pay, but that is not earth shattering. Even keeping the bonus cap in financial services will probably end up being offered willingly if that is the price we pay for keeping passporting rights.

The rule that seemed most likely to have an effect is the law of unintended consequences. The one thing that we do now know is that the impact of the EU referendum on domestic politics has been transformational. There is no serious question that under the Coalition both employment law itself and de facto access to employment rights were radically scaled back. There was a natural prediction that, unfettered by the restraining force of the LibDems, the Conservatives would take their deregulation agenda much further, but the reality is that the Cameron-led government had far less impact on our work than when Vince Cable occupied BIS. Whether a refreshed post-referendum Conservative Government would maintain its disinterest in such matters seemed much more questionable.

However, the rules of the political game are changing. The Conservatives have eyed up working class votes and can see that an attack on workers’ rights (other than at board level) is not going to solidify that base. Employment regulations look set to stay where they are for a while longer.

Gareth Brahams, Managing Partner, BDBF