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Lord Chief Justice intervenes in judge’s race discrimination claim against MoJ

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The Lord Chief Justice has personally intervened in the case of the judge who has brought a race discrimination claim against the Ministry of Justice.

The judiciary’s governing body has recommended that Peter Herbert be handed a written warning for remarks he made at a “Defend Democracy” rally in April 2015 relating to the presence of racism in the judiciary. The remarks were said to breach a rule of judicial conduct which requires judges to “refrain from any activity, political or otherwise, which could conflict with their judicial office or be seen to compromise their impartiality”.

Herbert, who is a human rights barrister, sits as a judge in employment and immigration tribunals and chairs the Society of Black Lawyers, claims that the recommendation is discriminatory on grounds of his race and amounts to victimisation.

For the written warning to be given, the Justice Secretary, Michael Gove, and the Lord Chief Justice, Lord Thomas, must agree. Rather than rubber-stamping the recommendation, Lord Thomas has stated his concern that some of the points Herbert raised have not fully been considered and recommended that a disciplinary panel be appointed to investigate.

Read press coverage here.

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Windfall for blacklisted construction workers

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More than 700 construction workers have received an estimated £75 million in compensation for the loss they suffered as a result of having been blacklisted.

The Consulting Association had operated a database of over 3,200 building workers for over 30 years. The database, which was used by some of the largest building companies in the UK, contained derogatory statements about workers such as “ex-shop steward, definite problems” or “will cause trouble, strong TU [trade union]”. The blacklist resulted in hundreds of people losing their jobs and being unable to obtain new employment.

Workers’ unions, Unite and GMB, have assisted affected workers in bringing claims against many well-known firms, including Sir Robert McAlpine, Balfour Beatty and Carillion. The settlements reached a total of around £75 million and will see each of the 771 workers receive between £25,000 and £200,000 depending on the seriousness of their treatment.

The construction firms also issued an “unreserved and sincere” apology, which was read out in the High Court and detailed the firms’ prior use of the blacklist during recruitment.

Read the press coverage here.

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Police evidence used during a disciplinary hearing

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An employee has no reasonable expectation of privacy in circumstances where they are suspected of harassing a work colleague in a way which was closely connected to the workplace.

Mr Garamukanwa was a clinical manager at Solent NHS Trust and he had previously been in a relationship with a staff nurse at the hospital, Ms Maclean. When that relationship ended, Mr Garamukanwa believed that Ms Maclean had entered into a relationship with Ms Smith, a colleague of hers, though they denied this. He sent emails to both women stating that if they did not inform their manager, Mr Brown, about their relationship, he would do so.

A person then anonymously began a feud of sorts with Ms Maclean and Ms Smith. Mr Brown received a letter accusing the women of inappropriate sexual behaviour at work. A false Facebook page was created to which 150 Trust employees were added and a number of malicious emails (the content of which suggested that the author had been following the women) were sent to numerous colleagues, including members of the Trust’s management.

Ms Maclean complained to the police and the Trust suspended Mr Garamukanwa on full pay. The police arrested Mr Garamukanwa and the subsequent investigation, whilst not resulting in charges being brought, turned up some photographs taken from his personal mobile phone. They included photographs of Ms Maclean’s house and a list of the email addresses to which some of the unpleasant emails were sent. The police gave those photographs to the Trust and advised that it could use them for the purposes of its own internal investigation.

The Trust found that the police photographs proved Mr Garamukanwa’s involvement in the campaign against Ms Maclean and Ms Smith. As a result, it summarily dismissed him on the basis of gross misconduct. In bringing his Employment Tribunal claim, Mr Garamukanwa argued that the Trust’s use of the photographs handed to it by the police had breached his right to privacy.The Employment Appeal Tribunal held that Mr Garamukanwa could have no reasonable expectation of privacy. Firstly, his actions had been strongly connected to the workplace – he had sent emails to work colleagues on work email addresses about a relationship he claimed was inappropriately taking place at work. What is more, they had adverse consequences on other employees, Ms Maclean in particular. Secondly, Mr Garamukanwa had not objected to the photographs being used whilst the Trust was conducting its investigation, and thirdly, the police had permitted the Trust to use the photographs for that purpose.

Garamukanwa v Solent NHS Trust UKEAT/0245/15

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Leak to The Sun newspaper did not breach Naval Commander’s privacy

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The former Commanding Officer of a Navy frigate has lost his misuse of private information claim against the Ministry of Justice.

David Axon was the Commanding Officer of a Royal Navy warship, the HMS Somerset. In 2014, he alleged that someone from the Ministry of Justice must have leaked information surrounding his removal from office for bullying junior officers, leading The Sun newspaper to print three stories about it. He argued that the disclosure amounted to a breach of his rights to privacy and confidentiality.

The High Court dismissed Mr Axon’s claim. It held that he could not have a reasonable expectation of privacy regarding the circumstances of his dismissal, for a number of reasons. Mr Axon’s role was discharging a very public function and his gross misconduct had been found by the Navy to have “undermined the fighting effectiveness of his ship”. It held that, whilst the equal opportunities investigation was conducted in private, the unusual and grave nature of the case meant that it was bound to become a matter of public knowledge. The fact that the informant, an MoD employee, had acted wrongfully and received £5,000 for her story was relevant, but was outweighed by other factors.

This case could suggest that those who are: (i) particularly senior; (ii) in roles of national importance; and (iii) have been found guilty of gross misconduct could have a harder time establishing that they have a reasonable expectation of privacy. This could feasibly include CEOs of banks or national companies.

Axon v Ministry of Defence and News Group Newspapers [2016] EWHC 787 (QB)

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When can employers get “negotiation damages” from a former employee?

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The Courts have indicated that where an employee has breached restrictions relating to their conduct after they leave their employer, an appropriate remedy will quite often be the price employees would have had to have paid in negotiation to buy their way out of the contractual obligations.

Karen Morris-Garner became a director at One Step having sold her own supported living business to it. Ms Morris-Garner owned 50% of the shares in One Step, the other 50% belonging to Mr and Mrs Costelloe. The relationship between Ms Morris-Garner and the Costelloes deteriorated and, in 2006, Ms Morris-Garner and her civil partner incorporated their own company. Later, Ms Morris-Garner resigned as a director of One Step and sold her 50% shareholding in it to Mr Costelloe. The contractual documents surrounding the sale contained non-competition and non-solicitation covenants binding Ms Morris-Garner and her civil partner. Some months later, Ms Morris-Garner’s competing company began to trade.

The High Court found that Ms Morris-Garner and her civil partner were in breach of the restrictive covenants which bound them after the share sale was completed. As a result, it awarded to One Step negotiation damages, being the price which the parties would have agreed in return for One Step releasing Ms Morris-Garner and her civil partner from their restrictions.

The Court of Appeal upheld the High Court’s decision. It held that the award of negotiation damages is appropriate where it is a just response to a situation where it is very difficult (but not necessarily impossible) for the old employer to identify the loss it has suffered due to the breach. The case need not be exceptional in order for those factors to be present.

Negotiation damages were just in the present case considering that: (i) Ms Morris-Garner was the public face of the company and had the strongest client relationships; (ii) competition by Ms Morris-Garner could be very damaging to One Step; (iii) Ms Morris-Garner had been paid a substantial amount of money in consideration for signing up to the restrictive covenants; and (iv) Ms Morris-Garner and her civil partner had secretly and deliberately breached their restrictions.

Employers concerned about employee competition should take solace from this case. It is now clear that these damages may be available when it is difficult to quantify loss (or where there is no loss).

Morris-Garner and another v One Step (Support) Ltd [2016] EWCA Civ 180

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Was it discriminatory to sack a wheelchair user for using racial slurs when complaining about accessibility?

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Mr Risby is paraplegic and was employed by the London Borough of Waltham Forest for 23 years. In 2013, Waltham Forest decided to put on a series of workshops for management staff and hired an external venue, which was wheelchair-accessible, for that purpose. However, cost-cutting measures led to the workshops being held internally instead; the venue, being in the basement, was inaccessible by wheelchair. Mr Risby became very angry about this. He shouted at a junior colleague (who, unknown to him, was mixed race), using serious racial slurs.

Following an internal investigation and disciplinary procedure, Mr Risby was summarily dismissed for gross misconduct given his use of offensive and racist language. Mr Risby’s appeal was unsuccessful so he brought a claim for unfair dismissal and discrimination arising from disability.

The Employment Appeal Tribunal held that Mr Risby had been unlawfully sanctioned for conduct which arose in consequence of his disability. It held that Mr Risby would not have been angered by the choice of venue had he not suffered with paraplegia, so his disability was an effective cause for his subsequent dismissal.

The employer could at the next hearing still justify its decision as a proportionate means of achieving a legitimate aim. Therefore, this case should not be understood as saying that disabled employees who act in this way cannot be sanctioned.

Risby v London Borough of Waltham Forest UKEAT/0318/15

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When can a contract be varied orally?

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Parties are at liberty to agree new terms orally or by conduct even where a prior contract contained a clause providing that all future variations must be in writing.

A commercial contract between two companies contained a term stating that their agreement “can only be amended by a written document which (i) specifically refers to the provision of this Agreement to be amended and (ii) is signed by both parties”.

In subsequent litigation concerning the contract, it was argued that this clause prevented the parties from varying the terms between them orally or by conduct.

The Court of Appeal, which determined another matter arising from the case, made some observations about the validity of that argument. It stated that the existence of the above term in the contract did not prevent the terms being varied by oral agreement or conduct, by virtue of the parties’ freedom to agree whatever terms they wish.

The Court noted that it may be more difficult to prove an agreement where it took place orally, but it would still be possible in some cases. In the present case, the evidence of the “open, obvious and consistent” dealings between the parties sufficed to show a variation by conduct had taken place.

Globe Motors, Inc & Ors v TRW Lucas Varity Electric Steering Ltd & Anor [2016] EWCA Civ 396

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