What did we get up to last month?
We hope you have had a good break over the festive period and are looking forward to a busy 2017!
Last month we concluded our last round of HR Breakfast Club sessions for 2016 when we discussed the possible implications of Brexit – whatever that may look like! I sense that it is a topic that we will need to revisit as the months tick by and our options become a little clearer… We are now in the process of choosing our topics for the first batch of sessions in 2017, so keep your eyes peeled for the dates so that you can book your place!
On a separate issue I was recently reading an article which reported an Employment Tribunal decision where an employee (who had been dismissed for whistle blowing) had turned down an out of Court settlement as she did not wish to be subjected to a gagging restriction. Whilst she went on to be successful in her claim at the Tribunal she was awarded a sum less than that which she had been offered by way of settlement, which it was suggested was unfair.
This situation often arises where an employee does not want to compromise their ability to speak out to whomever they wish about the circumstances surrounding the dispute or their dismissal. This will, however, rarely be acceptable to an employer who will normally want to insist that any settlement makes it clear that the employer does not accept any liability, that both the terms of the agreement and the circumstances of their departure are to remain confidential and that the employee must not make any derogatory comments about the employer or its employees. In my experience, if the sum of money on offer is attractive enough to the employee then more often than not they will agree to be bound by all of these confidentiality provisions.
Any new cases to be aware of?
In the case of Herry v Dudley Metropolitan Council the EAT considered whether stress constituted a disability and concluded that Mr Herry's stress had been a reaction to life events/work difficulties. As such, it did not therefore constitute a disability for the purposes of the Equality Act 2010. This applies the principles established in the well known case of J v DLA Piper UK LLP 2010 whereby LJ Underhill draw a distinction between a mental impairment which could be a disability and a reaction to life events which could not be a disability.
Whilst this case does not offer anything ground breaking, or indeed new, it does serve as a reminder of the principles that will be applied by the Tribunals when considering claims of stress and whether disability, clinical depression could constitute disability. As such, the medical evidence produced in a case is vital in establishing whether a condition may, or may not, constitute a disability. In this case Mr Herry lacked medical evidence, choosing to rely only on doctors fit notes, which does not provide sufficient detail in respect of the condition suffered and its effects on his day-to-day activities.
A second case to draw to your attention this month is Reverend Canon Pemberton v Former Acting Bishop of Southwell and Nottingham 2016. In this case the acting Bishop of Southwell and Nottingham refused to grant an Extra Parachial Ministry Licence (EPML) to Canon Pemberton, which Canon Pemberton required in order to obtain a salaried position, because he had entered into a same-sex marriage earlier that same year. The reason given by the acting Bishop for his refusal was that same-sex marriage was not consistent with the Church's teachings on marriage, as detailed within a Pastoral Guidance document produced by the House of Bishops and had been communicated to Canon Pemberton. His actions were therefore inconsistent with his ordination vows and the canonical duty of the clergy to reflect the Church's teachings.
Claims were brought by Canon Pemberton for direct discrimination on grounds of sexual orientation and/or marriage and harassment on grounds of sexual orientation.
The EAT upheld the Tribunal's decision that the refusal to grant Canon Pemberton with an EPML due to his same-sex marriage was potentially discriminatory. However, as the employment was for the purposes of an organised religion and the requirement not to be in a same-sex marriage complied with the belief held by the Church of England, the religious occupational requirement exception applied and, as such, the claims did not succeed.
Permission has been granted for the case to be appealed to the Court of Appeal so watch this space…
To sign up to receive our monthly employment e-bulletin, please head to our newsletter subscription page.
