Analysis of Cases Concerning Sexual Discrimination - Case Study Example

Hypothetical Problem: For the past five years, Jeffrey has been employed as the caretaker of St Augustine's Church of England School, where he has proved popular with parents, teachers and pupils. One day, earlier this year, he returned home to find that his flat had been broken into and that several valuable items had been stolen. He reported the thefts to his local police station where Desk Sergeant Williams, in taking a statement, asked Jeffrey for a list of those people who might have access to Jeffrey's flat and might be able to help the police with their enquiries. Jeffrey is an active member of the town's Gay Community Association, which holds its monthly committee meetings at his flat. He explained this to Sergeant Williams and promised a list of names when he had checked with his fellow committee members that they were happy for him to pass their names onto the police. Sergeant Williams, a churchwarden at St Augustine's was uneasy that an acknowledged homosexual should be working as a caretaker at the parish school. He voiced his concerns to the school's head teacher who brought the matter to a meeting of the school's governing body. They endorse Sergeant Williams' concerns and advise that Jeffrey's contract should be terminated. Jeffrey consults lawyers and sues for unfair dismissal. Jeffrey v St. Augustine's Church of England School Board of Governors [2006] 7 EAT 26 Judgement: The present case involves the unfair dismissal of the complainant on the ground of his sexual orientation. I. FACTS - Circumstances of the Case: Jeffrey was employed as caretaker of St. Augustine Church of England School for the past five years. This year, in the local police station, Desk Sergeant Williams took Jeffrey's statement reporting the fact that his flat has been broken into and several valuable items have been stolen, which statement also revealed Jeffrey's sexual orientation. Sergeant Williams, who was also a churchwarden of St. Augustine, reported his concerns of having an acknowledged homosexual working as the parish school caretaker to the school head teacher. Jeffrey's employment contract was terminated by the head teacher after the school's board of governors endorsed Sergeant Williams' concerns. Jeffrey filed the present application for injunctive relief to prevent the school administration from implementing the dismissal decision as well as appeal the same with prayer claiming for additional damages over and above the notice period for the period that the statutory dismissal or disciplinary procedure would have taken. II. LAW - Relevant Domestic and European Community Law, Convention and Practice i. Under the Employment Act 2002: The complainant employee alleges that the dismissal impinges upon his rights under s.35 of the Employment Act 2002: the right to procedural fairness through the internal dismissal procedure to determine whether there are extant grounds to dismiss the employee; the right to accompaniment or assistance by a trade union representative or work colleague; and The right to appeal the grievance decision. The complainant's rights under the Sex Discrimination Act 1975 and the Employment Equality (Sexual Orientation) Regulations 2003 are asserted to be also violated. The Employment Act 2002 (Dispute Resolution) Regulations 2004 requires that the employer afford the employee the procedural fairness through internal dismissal/disciplinary procedures. The Employment Act 2002 (Dispute Resolution) Regulations 2004 provides, inter alia: Application of dismissal and disciplinary procedures 3. -(1) Subject to paragraph (2) and regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee. (2) Subject to regulation 4, the modified dismissal procedure applies in relation to a dismissal where- (a) the employer dismissed the employee by reason of his conduct without notice, (b) the dismissal occurred at the time the employer became aware of the conduct or immediately thereafter, (c) the employer was entitled, in the circumstances, to dismiss the employee by reason of his conduct without notice or any payment in lieu of notice, and (d) it was reasonable for the employer, in the circumstances, to dismiss the employee before enquiring into the circumstances in which the conduct took place, but neither of the dismissal and disciplinary procedures applies in relation to such a dismissal where the employee presents a complaint relating to the dismissal to an employment tribunal at a time when the employer has not complied with paragraph 4 of Schedule 2. Under the Employment Act 2002 Schedule 2 Part 1 Chapter, the standard dismissal/disciplinary procedure has three stages: invitation, meeting and appeal. The employer must set out in writing the employer must set out in writing the employee's alleged conduct, characteristics or other circumstances, which lead the employer to contemplate dismissing or taking disciplinary action against him or her; The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter; The meeting must take place before action is taken, except where the disciplinary action is suspension; The meeting must not take place unless: The employee has informed the employee of the basis for the ground(s) given in the statement (such as the evidence) and The employee has had a reasonable opportunity to consider his or her response to that information. The employee must take all reasonable steps to attend the meeting; After the meeting, the employer must inform the employee of its decision and notify him or her of the right to appeal against it, if he or she is not satisfied with it; If the employee does wish to appeal, he or she must inform the employer; If he or she does this, the employer must invite him or her to attend a further meeting; The appeal meeting has to take all reasonable steps to attend it; The appeal meeting need not take place before the dismissal or disciplinary action takes effect; and After the appeal meeting, the employer must inform the employee of its final decision. The said procedure applies even to the present case, which is not among the statutory exceptions. Advisory, Conciliation and Arbitration Service or ACAS provides a Code of Practice, which still follows the basic procedure given above. In attending the above-said meetings, the employee is entitled to be accompanied by a trade union representative or a colleague. This is because the meetings held under the statutory procedures are classed as a hearing under paragraph 14 Schedule 2 of the Employment Act 2002 for the purposes of s.13 (4) and (5) of the Employment Relations Act 1999. The employer must ascertain that the employee does not want a representative if he should not come with one during the meetings conducted. There is no right to be accompanied by a lawyer or spouse, unless he or she is a colleague. Failure to allow the employee to be so accompanied may result in the employer being ordered to pay compensation of up to two weeks' pay to the employee. The denial of the employee to be accompanied to a meeting may be viewed by this tribunal as a breach of the general principles of fairness because the right forms part of prevailing ACAS Code of Practice on Disciplinary and Grievance Procedures. Extensive notes of the meeting must be taken and copies thereof given to the employee, who should also be told of his right to appeal. S.30 of the Employment Act 2002 makes it an implied term of every contract of employment between an employer and an employee that a statutory procedure is to apply in the circumstances provided by the Secretary of State in regulations. 30Contracts of employment (1) Every contract of employment shall have effect to require the employer and employee to comply, in relation to any matter to which a statutory procedure applies, with the requirements of the procedure. (2) Subsection (1) shall have effect notwithstanding any agreement to the contrary, but does not affect so much of an agreement to follow a particular procedure as requires the employer or employee to comply with a requirement which is additional to, and not inconsistent with, the requirements of the statutory procedure. (3) The Secretary of State may for the purpose of this section by regulations make provision about the application of the statutory procedures. (4) In this section, "contract of employment" has the same meaning as in the Employment Rights Act 1996 (c. 18). This contractualisation of the statutory disciplinary and grievance procedures serve as the basis for the present application for injunctive relief to prevent the employer from implementing the dismissal and to claim additional damages over and above the notice period for the period that the statutory dismissal or disciplinary procedure would have taken in line with Guinton v Richmond upon Thames LBC1, Dietman v LB of Brent2, and Boyo v Lambeth LBC3, involving detailed dismissal or disciplinary procedures that have been incorporated into the employment contracts and which workplace procedures have not been followed by the employers. The Employment Act 2002 (Dispute Resolution) Regulations 2004 provides the following exceptions wherein the dismissal and disciplinary procedures do not apply: Dismissals to which the dismissal and disciplinary procedures do not apply 4. -(1) Neither of the dismissal and disciplinary procedures applies in relation to the dismissal of an employee where- (a) all the employees of a description or in a category to which the employee belongs are dismissed, provided that the employer offers to re-engage all the employees so dismissed either before or upon the termination of their contracts; (b) the dismissal is one of a number of dismissals in respect of which the duty in section 188 of the 1992 Act (duty of employer to consult representatives when proposing to dismiss as redundant a certain number of employees) applies; (c) at the time of the employee's dismissal he is taking part in- (i) an unofficial strike or other unofficial industrial action, or (ii) a strike or other industrial action (being neither unofficial industrial action nor protected industrial action), unless the circumstances of the dismissal are such that, by virtue of section 238(2) of the 1992 Act, an employment tribunal is entitled to determine whether the dismissal was fair or unfair; (d) the reason (or, if more than one, the principal reason) for the dismissal is that the employee took protected industrial action and the dismissal would be regarded, by virtue of section 238A(2) of the 1992 Act, as unfair for the purposes of Part 10 of the 1996 Act; (e) the employer's business suddenly ceases to function, because of an event unforeseen by the employer, with the result that it is impractical for him to employ any employees; (f) the reason (or, if more than one principal reason) for the dismissal is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under any enactment; or (g) the employee is one to whom a dismissal procedures agreement designated by an order under section 110 of the 1996 Act applies at the date of dismissal. This tribunal notes that the above circumstances do not exist in this case. Where an employer fails to follow the statutory dismissal and disciplinary procedures, a dismissal will be automatically unfair, pursuant to s.98A of the Employment Act 2002. The same provision also specifies that an employer's failure to follow a procedure other than the statutory procedure will not by itself make a dismissal unfair, provided the employer can show that following the appropriate procedure would have made no difference to the decision to dismiss. S.98A provides, inter alia: "98AProcedural fairness (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if- (a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal, (b) the procedure has not been completed, and (c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements. (2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure. (3) For the purposes of this section, any question as to the application of a procedure set out in Part 1 of Schedule 2 to the Employment Act 2002, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under section 31 of that Act." This provision reverses the case law of Polkey v Dayton Services Ltd.4 Complainant asserts that the dismissal and disciplinary procedure applies in the present case because in the present case the employer, without affording the employee of hearing or investigation, contemplated dismissal of a disciplinary sanction other than suspension on pay or a warning. Respondent for its part asserts that a workplace resolution procedure need not be afforded to the complaining employee because the grounds existing under the 2000/78/EC Regulation 7 and the Employment Equality (Sexual Orientation) Regulation 2003 allow the dismissal under the given exception of genuine occupational requirement. This will be discussed further below. ii. Under the Sexual Discrimination Act 1975: Complainant asserts that the discrimination on grounds of sexual orientation amounts to sexual discrimination falling under the Sexual Discrimination Act 1975 which prohibits less favourable treatment of a person on the basis of that person's sex or marital status. He stressed that he was treated less favourably than a comparator of the opposite sex, who may even be a lesbian, would have been treated, all other circumstances being the same or not materially different as was decided by the Court of Appeals in Smith v Gardner Merchant5. The right question . . . is whether the applicant, a man, had been less favourably treated than his employers . . . would have treated a woman. By focusing on the applicant's homosexuality, the drift of the argument pushes one almost ineluctably . . . to ask the wrong question: was he discriminated against because he was a man (sex) or because he was a homosexual (sexual orientation) . . . To compare like with like, a male homosexual must be compared with a female homosexual. (p. 2 and 4) Respondent answers that sex discrimination under the Sexual Discrimination Act 1975 does not cover sexual orientation pursuant.6 S.1 (1) of the same law requires treatment "on the grounds of sex." The recent domestic legislation pursuant to EC Equal Treatment Directive 2000/78/EC now brings a different result to cases of similar facts. iii. Under the Employment Equality (Sexual Orientation) Regulations 2003: The EC Equal Treatment Directive 2000/78/EC requires member states to implement laws prohibiting discrimination in the workplace on the basis of religion, belief, age, disability or sexual orientation. The UK Employment Equality (Sexual Orientation) Regulations 2003 proscribes an employer from discriminating against a person in the offering of employment or in the terms of employment and covers direct and indirect discrimination among other treatments. The complainant argues that his dismissal was a direct discrimination based on his sexual orientation. The Respondent counters that being of a particular sexual orientation was a genuine occupational requirement, having regard to the nature of employment or the context in which it is carried out, and the complainant does not meet the requirement. In addition, the employer has an ethos based on religion or belief or has a requirement related to sexual orientation in order to comply with the doctrines of the organization's religion. The complainant rebuts by arguing that whether or not the requirement is genuine its application must be proportionate to the position in question, in the present case, the position of caretaker does not need such sexual orientation, that the supposed requirement is a mere homophobia on the part of the heterosexual members of the governors' council and an afterthought, otherwise the requirement would have been part of the qualifications of the position and the terms of the employment contract. iv. Under the Human Rights Act and the European Convention on Human Rights: The Human Rights Act permits local English courts to apply the rights provided by European Conventions and protocols to modify existing laws. The Schedule 1 Convention Rights attached to the Human Rights Act do not explicitly prohibit discrimination on the basis of sexual orientation in the workplace. The European Convention on Human Rights in Article 8 establishes a general right of privacy and lays down specific factors which may justify a limitation of the right: that interference by public authority must be in accordance with law and necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The European Court relies on a dynamic theory of construction of the said convention, viewing the same as "a living instrument . . . which must be interpreted in the light of present-day conditions"7 and does not need to refer to the original intent of the framers of the convention. In the case of Dudgeon v UK8 the European Court struck down particular provisions of the Sexual Offences Act because the law inhibited the applicant from enjoying "a most intimate aspect of private life" requiring particularly serious reasons to be shown before it would accept that interference was necessary. In a series of cases9, the European Court declared the discharge of homosexuals and lesbians from the military forces because of their sexual orientation a violation of their right to private life under Article 8 of the convention. The investigations into the complainants' homosexuality and their subsequent discharge were based on the sole ground that they were homosexual. In ADT v UK10, the European Court ruled that homosexual activities when done in private are lawful and genuinely private and fell within the ambit of the protection of Article 8. The complainant argues that there is no ground for the employer to violate his right to privacy and that the employer is not such public authority allowed to interfere with his human rights. v. Re: Breach of Confidence: A special discussion is relevant to the disclosure made by Sergeant Williams as part of the police force notwithstanding his private concerns as churchwarden. Sergeant Williams and the police owes a duty of confidence to those involved in criminal investigations and he can only use the information received in his official capacity for the purpose of his public duties.11 The divulgence of the information by Williams satisfies the requirements of breach of confidence because the information which is of confidential nature was imparted in circumstances which create an implication of confidence and which information was used in an unauthorised manner to the detriment of the complainant.12 In effect, even the headmaster is not authorised to rely on the information for its own purposes. vi. Under the Employment Rights Act: The St. Augustine parish school head teacher and board of governors based their assertions on the exceptions of the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Rights Act 1996. The dismissal was justified as fair and allowed under the Employment Equality (Sexual Orientation) Regulations 2003 as already discussed above and under the statutory power of the Employment Rights Act 1996 which ground is similar in effect to the second exception under the Employment Equality (Sexual Orientation) Regulations 2003 and a parallel provision in the s.19 Sexual Discrimination Act 1975. Under the given circumstances, knowledge of the complainant's homosexual proclivities only came with the information of the churchwarden so effective action was only made at that point. Jeffrey was an active homosexual and as such his conduct is diametrically opposite to the interests of the Christian ethos which the parish school is obliged to uphold and protect as well as to maintain the integrity of the school and protect the pupils and their parents who are learning in a Christian environment. The complainant's non-disclosure of his homosexuality amounts to dishonesty which has negative effects on the school and its reputation. III. DECISION 1. Court's Assessment It is true that being a Christian organization the employer may apply a requirement of sexual orientation that complies with the doctrines of the religion as well as avoid conflicting with the strongly held religious convictions of the religion's followers who are parents of the children studying in the parish school. Still the employer seeking to use the exceptional provision of the three laws relied upon must show more than a mere preference for religious employees. The homosexuality of Jeffrey does not amount to a crime nor is it socially immoral under the present standards. The laws do give the employers greater latitude in maintaining religious ethos of the organisation but it does not give them total freedom to remove without justifying their action nor providing procedural fairness in doing so. The job of caretaker is not determined by its religious character. If the dismissal of the employee is not directly discriminating it still does so indirectly when the organisation fails to tolerate others. This revisits Saunders v Scottish National Camps Association13 The dismissal shows the personal objections of the employer on the sexuality of the employee and it acted unreasonably in the context of the newer prevailing laws "seeking to preserve its clientele, even although doing so the employer could be regarded as capitulating to homophobic bigotry." The negative attitudes do not justify the action taken and not only domestic employment laws were violated but also European conventions. 2. Holdings: For these reasons, the court: 1. Holds that employer St. Augustine parish school violated a. the Employment Act 2002 denying procedural fairness through the proper dismissal procedure; b. the Employment Equality (Sexual Orientation) Regulations 2003; c. the European Convention on Human Rights. 2. Orders the reinstatement of the employee to his previously held position. 3. Orders the payment of unfair dismissal compensation for financial loss and compensation for injury to feelings or psychiatric damage pursuant to Dunnachie v Kingston upon Hull CC14 and two weeks payment for failure to follow statutory dismissal procedure. BIBLIOGRAPHY EC Equal Treatment Directive 2000/78/EC Regulation 7 Employment Act 2002 Employment Act 2002 (Dispute Resolution) Regulations 2004 Employment Equality (Sexual Orientation) Regulations 2003 Employment Relations Act 1999 Employment Rights Act 1996 European Convention on Human Rights Human Rights Act 1998 Sex Discrimination Act 1975 ADT v UK [2000] ECHR BHRC 112 Beck, Copp and Bazeley v UK, Applications 48355/99, 48356/99 and 44357/99 [22 October 2002]. Boyo v Lambeth LBC [1994] ICR 727 Coco v AN dark (Engineers) Ltd [1969] RPC 41. Dietman v LB of Brent [1987] ICR 842 Dudgeon v UK [1981] 4 EHRR 149 Dunnachie v Kingston upon Hull CC (4 February 2004) Hellewell v Chief Constable of Derbyshire [1995] 4 All ER 473 Guinton v Richmond upon Thames LBC [980] IRLR 321 Lustig-Prean and Becket v UK [1999] 29 EHRR 548 Macdonald v Ministry of Defence [2003] ICR 937 Marckx v Belgium [1979] 2 EHRR 330 Perkins and R v UK, Applications 43208/98 and 44875/98 [22 October 2002] Polkey v Dayton Services Ltd [1988] ICR 142 Saunders v Scottish National Camps Association [1981] IRLR 174 Smith v Gardner Merchant [1999] ICR 134 Smith and Grady v UK [1999] EHRR 493 Tyrer v UK [1978] 2 EHRR 1 ACAS (www.acas.org.uk) Guidance on Religion or belief and the workplace http://www.acas.org.uk/media/pdf/religion_1.pdf Guidance on Sexual orientation and the workplace http://www.acas.org.uk/media/pdf/e/n/sexual_1.pdf Sexual Orientation in the Workplace: Putting Employment Equality (Sexual Orientation) Regulations 2003 into Practice Advisory booklet - Tackling discrimination and promoting equality - good practice guide for employershttp://www.acas.org.uk/index.aspxarticleid=818 Code of Practice on Disciplinary and Grievance Procedures/Advisory handbook - Discipline and grievances at work http:// www.acas.org.uk/media/pdf/q/m/H02_1_1.pdf DTI (www.dti.gov.uk) Fairness for all: a new commission for equality and human rights Published 12/05/2004 http://www.dti.gov.uk/access/equalitywhitepaper.pdf EQUALITY AND DIVERSITY - Discrimination at work http://www.dti.gov.uk/er/equality/index.htm Employment Equality Regulations 2003: Employment Equality (Sexual Orientation) Regulations 2003 and Employment Equality (Religion or Belief) Regulations 2003 http://www.dti.gov.uk/er/equality/eeregs.htm http://www.dti.gov.uk/er/equality/sexor_flyer.pdf http://www.dti.gov.uk/er/equality/relbel_flyer.pdf amendments to the Employment Equality (Sexual Orientation) Regulations 2003 http://www.dti.gov.uk/er/equality/eer_2003_amendments.htm DTI consultation papers http://www.dti.gov.uk/er/equality/short.pdf http://www.dti.gov.uk/er/equality/consult.pdf Employment Act 2002 guide: RESOLVING DISPUTES - A new approach in the workplace http://www.dti.gov.uk/er/resolvingdisputes.htm EMPLOYMENT RELATIONS ACT 2004 http://www.dti.gov.uk/er/er_act_2004.htm Stonewall Employment Equality (Sexual Orientation) Regulations 2003 http://www.stonewall.org.uk/information_bank/employment/75.asp Employment Equality (Sexual Orientation) Regulations 2003 http://www.stonewall.org.uk/beyond_barriers/information/equality_and_diversity/1139.asp Stonewall Guides to Employment Equality (Sexual Orientation) Regulations http://www.stonewall.org.uk/information_bank/employment/76.asp What is sexual orientation http://www.stonewall.org.uk/information_bank/faq/80.asp Court Battles http://www.stonewall.org.uk/information_bank/employment/73.asp The Employment Equality (Sexual Orientation) Regulations: Guidelines for Employers http://www.stonewall.org.uk/stonewall/information_bank/employment/our_guidesemplo.html Equality Challenge Unit (http://www.ecu.ac.uk) Sexual Orientation Guidance http://www.ecu.ac.uk/guidance/sexualorientation/guidance.htm Equality Opportunity Commission (www.eoc.org.uk) Code of Practice - Sex Discrimination http://www.eoc.org.uk/Default.aspxpage=15577 Stop Discrimination (www.stop-discrimination.info) Stop Discrimination Guide http://www.stop-discrimination.info/28.0.html Dechert LLP (www.dechert.com/practiceareas/practiceareas.jsp) Work Matters - Employment News/Issue 11/January 2003 http://www.dechert.com/library/WorkMatters11.pdf New Right to Compensation for Injury to Feelings for Unfairly Dismissed Employees/March 2004 http://www.dechert.com/library/NewRighttoCompensationforInjurytoFeelingsforUnfairlyDismissedEmployees2004.pdf Good News for Employers! Dunnachie v Kingston Upon Hull City Council/July 2004 http://www.dechert.com/library/EmploymentClientAlert-DunnachieVKingstonUponHull-15July2004.pdf Statutory Dispute Resolution Procedures - Are You Prepared/August 2004 http://www.dechert.com/library/StatDisputeRes.pdf Workplace Dispute Resolution: A Guide to the Statutory Disciplinary and Grievance Procedures/September 2004 http://www.dechert.com/library/WorkplaceDisciplinary&GrievanceProcedures-August2004.pdf Read More