October’s employment case law round up

Supporting a football club held not to be a protected philosophical belief (not even Rangers).

In McClung v Doosan Babcock Ltd and others Mr McClung worked as a contractor for Doosan Babcock, through the recruitment company NRL. He lost his work as a contractor, which he argued was a result of discrimination against him because of his support for Rangers Football Club. He believed supporting Rangers Football Club was a way of life, having supported them for 42 years.

The Tribunal determined that McClung’s passion for his team did not satisfy the ‘Grainger‘ test for qualifying as a protected philosophical belief. The Tribunal found that his views were genuinely held, given the Claimant’s devotion to the club, but that this amounted to an opinion or viewpoint (in the same way as devotion to a political party), rather than a belief. The Tribunal also found that his views did not go to a weighty and substantial aspect of human life, given that they had no larger consequences for humanity as a whole. Support for a football club was determined to be akin to a lifestyle choice rather than relating to a substantial aspect of life and behaviour. There were varying reasons behind individuals’ support for the club, unlike a belief in veganism where the reasons are largely the same, and furthermore this was not a weighty issue worthy of respect in a democratic society.

Therefore, support for the club could not be relied upon as a protected philosophical belief from which discrimination could be claimed.

Persistent lateness justifies dismissal

The claimant in Tijani v House of Commons Commission, a cleaner, was dismissed for consistently being late. The dismissal letter cited 50 occasions of lateness following a final written warning being issued.

The claimant appealed the tribunal’s finding that her dismissal had been fair on the basis that:

• the tribunal had not tested evidence as to whether others had been treated differently in the same circumstances; and
• the tribunal had (rather unusually) not had sight of the disciplinary policy and so could not measure the nature and extent of the misconduct and the appropriate reasonable range for sanction. The claimant argued that she had not been told why her lateness had an impact to the business and that the conclusion of the judge that poor timekeeping is generally an issue of misconduct was not properly informed and was speculative.

In dismissing the appeal, the EAT found that the claimant had been unable to name anyone who she thought had a similar lateness record to her whereas the employer was able readily to identify those who had a poor timekeeping record but had not been dismissed because their lateness had improved.

The EAT also found that the tribunal had been entitled to make the finding that lateness is generally a conduct issue. The tribunal was entitled to find that an employer does not have to demonstrate that persistent lateness had a specific knock-on effect on the business. Even if that were not the case, having received a final written warning for persistent lateness which she did not appeal and having been warned that further lateness could result in dismissal, the employee was clearly on notice that dismissal was the likely consequence of further lateness such that an employer need not explain any knock-on effect.

Legal privilege does not have retrospective application to grievance investigation reports

In University of Dundee v Chakraborty, a grievance was investigated by a member of academic staff. By the time an investigation report was produced, the employee had commenced employment tribunal claims. The employer asked external legal advisers to review the report before it was disclosed to the employee and amendments were made as a consequence. The amended report was disclosed to the employee.

The employee applied for disclosure of the original report which was resisted by the employer on the basis that the original report attracted legal advice privilege and if both versions were disclosed a comparison could be made between them enabling inferences to be drawn about the legal advice given.

The original report did not attract privilege at the time of its creation. It was not created in contemplation of litigation but as part of an investigation response to a grievance brought under an internal policy. The EAT found that privilege did not apply retrospectively even if an incidental consequence of its disclosure and comparison with the amended version was to enable inferences to be drawn about any differences.

Had legal advice been sought earlier on in the process, legal privilege could have protected the original version of the report.

If you have any question about this case round-up do not hesitate to get in touch with one of our expert Employment lawyers.

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