Post Office v Adekeye, Times Law Report 3 December 1996

The Court of Appeal has ruled the Race Relations Act does not apply to an appeal against dismissal, thus narrowly defining who is protected from race discrimination in employment.

The Court accepted there was a loophole in the legislation which does not cover people who were dismissed and seeking reinstatement as they were no longer employed.

Ms Adekeye brought a claim under the Race Relations Act 1976 against her former employer, the Post Office, alleging discrimination in her appeal against dismissal. Her claim was lodged within 3 months of the appeal, but more than 3 months from the dismissal itself.

The Race Relations Act prohibits discrimination by employers 'in the case of a person employed by him' (Section 4(2)) and by the employer refusing or deliberately omitting to offer a person employment (Section 4(1)).

The Court of Appeal had to consider whether the Race Relations Act covers discrimination against a dismissed ex-employee seeking reinstatement on appeal. They held that Section 4 (2) required Ms Adekeye to be employed at the time of the discrimination and she was not.

Neither had the Post Office either refused or deliberately omitted to offer her employment: she was not seeking a job offer, but the reversal of a decision to dismiss.

The judgment means that ex-employees are not protected from acts of discrimination by former employers. If there is suspicion that a dismissal is tainted by race discrimination this judgment makes it all the more crucial to start Industrial Tribunal proceedings within 3 months of the dismissal itself and not wait for the appeal hearing.

Dad spoils the party

Go Kidz Go Ltd v Bourdouane EAT 10 September 1996

Employers are guilty of direct sex discrimination if they fail to take steps to stop sex harassment of staff by non-employees, the Employment Appeal Tribunal has held. The EAT said Ms Bourdouane's employer should have taken steps to prevent her from being subjected to further sex harassment after she complained.

Ms Bourdouane was employed by a company hosting children's parties and was sexually harassed by a male parent. She left the party and complained to her employer but was encouraged to return as other staff were busy. She was subjected to further harassment.

The EAT said an employer has a duty "to take all reasonable steps to prevent such discrimination taking place where it is within his power to prevent it". Mirroring a differently constituted EAT's reasoning in Burton and Rhule v De Vere Hotels EAT [1996] IRLR 596 (see Issue 6 of LELR: Racial remarks - no joke!) they said that where an employee is subjected to behaviour which includes elements of a sexual character to which a man would not have been vulnerable that constitutes less favourable treatment on the grounds of sex. It is not necessary to take the further step of finding out how an employer would have treated a male employee.

Burton established a new "control" based test for employers liability for acts of racial harassment by third parties and others. In Burton the EAT held an employer liable for the actions of third parties "in circumstances in which he can control whether it happens or not".

In a legal sense, unforeseen events can still be under an employer's control.

By contrast, in Bourdouane, the EAT said that the duty to take all reasonable steps to prevent discrimination necessarily involved a degree of foresight of the risk of discriminatory behaviour.

Bourdouane was decided by a different EAT the week before Burton. It approaches the issue of foresight with rather more caution than the EAT in Burton which expressed the view that it was undesirable that concepts of the law of negligence should be imported into the statutory torts of discrimination.

Health, safety and the sack

Tedeschi v Hosiden Besson Limited EAT 210 1996 (959/95)

Since 1993 it has been automatically unfair for an employer to dismiss for a reason connected to carrying out a health and safety function. This protection covers elected employees, health and safety representatives and other employees who cannot, for some practical reason, make a complaint through the usual health and safety channels where they exist.

The case reiterates what Industrial Tribunals must consider when deciding whether a dismissal was for health and safety reasons. Mr Tedeschi was employed as an assembly line worker. His supervisor thought his performance unsatisfactory and raised it with him. Mr Tedeschi responded by letter stating that the muscular and emotional effort required to do the job were too much for him. His employers responded by transferring him to soldering work.

Shortly after the move, Mr Tedeschi became concerned that extraction machinery was not effective in removing potentially hazardous fumes emitted from the soldering process and produced a pamphlet seeking information from workmates. His employers moved him but he was later dismissed because of his slow work rate.

He claimed he was unfairly dismissed as a result of raising his concerns about health and safety. The IT found the dismissal to be fair, but did not decide upon the principal reason for dismissal, saying it was impossible to extricate the health and safety issues from complaints about his performance. The IT also found that although Mr Tedeschi's concerns about health and safety were genuine, they were not reasonable. He appealed.

The Employment Appeal Tribunal said the burden of proof was on the employee to establish the reason for dismissal in a health and safety case, much as in a dismissal related to trade union activities. It set out new guidelines for unfair dismissal cases which are linked to health and safety.

In order to be successful it was necessary to show:

1. that the employee reasonably believed that the circumstances connected with the work were harmful or potentially harmful to health and safety;
2. that it was not practical to raise the matter through existing health and safety structures at work;
3. that the issue was raised in a reasonable manner; and
4. that the employee raising the issue was the reason or the principal reason for the employer to dismiss.

The EAT could not understand why the tribunal decided Mr Tedeschi's demonstrated concern for his workmates and attempts at investigation undermined the reasonableness of his belief. Consequently the IT's approach to the reason for dismissal and to Mr Tedeschi's beliefs contained serious errors of law. The case was sent back to a different tribunal to reconsider.

Smiths Industries Aerospace and Defence Systems v Rawlings [1996] IRLR 656

Mr Rawlings was an elected health and safety representative and became Chair of the Health and Safety Representatives Committee. As a result, he spent about one-third of his working time on health and safety duties and the remaining two-thirds on production duties as a machine operator.

A redundancy situation arose. The employers devised a selection criteria using a points system based purely on performance in the department. The foreman was instructed to disregard activities outside the production role. This left Mr Rawlings third from bottom and he was selected for redundancy. He presented a complaint of unfair dismissal alleging that he had been selected for redundancy because of his health and safety activities.

The Industrial Tribunal concluded that Mr Rawlings' health and safety activities did not contribute in any material way to his selection for redundancy and therefore the dismissal was not automatically unfair. The tribunal did find that the dismissal was unfair because in carrying out the selection exercise the employers had disregarded his performance of health and safety duties. The employers appealed.

The Employment Appeal Tribunal found that the dismissal was not unfair because Mr Rawlings had been selected for redundancy on the basis of criteria which ignored his performance of his duties as a health and safety representative. The protection afforded to health and safety representatives against dismissal in a redundancy exercise was neutral. Reps must not be disadvantaged for performing health and safety duties, but equally they were not entitled to any advantage over their fellow employees in the selection pool.

The EAT said the tribunal was mistaken in rewriting the employers' redundancy selection criteria to include an assessment of the employee's role as a health and safety representative. It would be wrong to allow management's evaluation of how an elected representative performed his or her duties to be part of a redundancy selection exercise.