2009 saw several key developments which Hrlaw took a brief look at in December (http://www.hrlaw.co.uk/site/focus/employment_law_cases_2009). This article looks forward to 2010 and at further key cases which are likely to be decided in the new year.

1. Discrimination on grounds of philosophical belief

In November 2009 the EAT in Grainger plc and others v Nicholson upheld a Tribunal’s decision that an employee’s belief in man-made climate change and a moral duty to mitigate or avoid the effects of climate change was capable of being a philosophical belief under the Employment Equality (Religion or Belief) Regulations 2003.

This case will now go to a hearing to decide whether Mr Nicholson was in fact subjected to discrimination when dismissed. The outcome of this hearing will be of interest as the EAT suggested that to establish a philosophical belief, unlike a religious belief, it is likely that cross examination will be needed to show the belief is actually held.

2. Discrimination on grounds of religious belief

In the case of Eweida v British Airways the EAT held that Mrs Eweida had not suffered indirect discrimination when her employer, BA, insisted that she conceal the cross on her necklace, as required by BA’s uniform policy. The EAT held that the employer’s uniform policy did not place Christians at a particular disadvantage as all employees were required to abide by the policy and that the wearing of a visible cross was not a religious requirement.

The Court of Appeal is due to hear Mrs Eweida’s appeal on 19-20 January 2010. It was suggested by the EAT that if Mrs Eweida is able to establish that Christians were placed at a particular disadvantage British Airways would not be able to objectively justify the policy.

3. Discrimination on grounds of age

The Court of Appeal is to hear the employer’s appeal in the case of Mayor and Burgesses of the London Borough of Tower Hamlets v Wooster in May 2010 following the EAT’s finding that a decision to make an employee redundant which was motivated by a wish to end the employment relationship prior to the employee reaching 50 and thereby avoiding liability for his early retirement pension amounted to direct discrimination as it did not amount to a legitimate aim.
In contrast in the case of Woodcock v Cumbria Primary Care Trust the Tribunal held that dismissing an employee so he would not become entitled to an early retirement benefit was a proportionate means of achieving a legitimate aim and therefore justified. The facts in this case were very similar to Wooster and with this case now awaiting decision on an application for permission to appeal it will be interesting to see how this area develops in 2010.

4. Ultra vires compromise agreement

The Court of Appeal is due to hear the appeal of Gibb v Maidstone & Tunbridge Wells NHS Trust in March 2010. The High Court held that a compromise agreement entered in to by the NHS Trust and the Chief Executive was unenforceable as the NHS Trust had acted outside its powers by agreeing to an irrationally generous compensation payment.

5. Equal pay claim comparators

The Court of Appeal is to decide whether the EAT erred in the case of Dumfries and Galloway Council v North and others in finding that an equal pay claim could not be based on a comparator in a different workplace as there was no real possibility of the comparator working at the same establishment as the claimants. In this case the claimants were female classroom assistants and their chosen comparators were male road workers. There is currently no fixed date for appeal.

6. Right to legal representation at a disciplinary hearing

In the Court of Appeal case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust it was held that a doctor was contractually entitled to legal representation at a disciplinary hearing.

Leave to appeal to the Supreme Court has been granted on the basis that the case involves a point of law of public importance.

We also await the reserved judgment of the Court of Appeal in the case of R (on the application of G) v The Governors of X School and another which is expected shortly. The High Court in this case held that due to the gravity of the allegations made against a teacher he was entitled to legal representation at a disciplinary hearing.

Further details on the right to legal representation at disciplinary hearings and the impact these decisions may have on employers was please click on the attached link.


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