What’s new this month?
We were delighted to be invited by Point Recruitment to provide an employment law update to their clients on case law decisions over the last 12 months and changes on the horizon for 2018. We hope those who attended enjoyed the event as much as we did.
As we reported in our last employment news e-bulletin our next round of HR Breakfast Club sessions will be in January 2018. The topic chosen is the much anticipated and eagerly awaited General Data Protection Regulation, which is coming into force in May 2018, and we will discuss its implications for HR. We anticipate that places will be in high demand so keep your eyes peeled for the invite and be sure to book your place quickly to avoid disappointment!
Any new cases to be aware of?
The case of Royal Mail Limited v Jhuti considered whether the dismissal of an employee who had made protected disclosures was automatically unfair when the dismissal officer was unaware of the protected disclosures.
In this case Mrs Jhuti was employed as a media specialist with the Royal Mail. Shortly after she commenced employment she reported to her line manager that she understood there were irregularities with how her colleagues offered customers certain incentives. If this were correct, then they would be acting in breach of OFCOM guidance. Mrs Jhuti was put under pressure by her line manager to withdraw the allegations and, if she did not, it was suggested her employment would be terminated. As such, she agreed to withdraw her allegations and confirmed the same in writing. Over the following months her line manager was critical of her performance, which she attributed to having raised the allegations. She raised a grievance about the treatment she received from her line manager and was subsequently signed off work for work-related stress.
A few months later Mrs Jhuti was invited to attend a meeting to consider the termination of her employment. The officer appointed, Mrs Vickers who was Head of Sales Operations, had not been involved in managing Mrs Jhuti and was unaware of the allegations she had raised. Mrs Jhuti made reference in correspondence to her that she had raised allegations about the misuse of the incentives by colleagues. Ms Vickers spoke with Mrs Jhuti’s team leader who confirmed that she had misunderstood the situation and had withdrawn the allegations. Ms Vickers accepted this and dismissed Mrs Jhuti for poor performance. Mrs Jhuti brought claims that she had been subjected to a detriment as a result of raising a protected disclosure and she claimed her dismissal was automatically unfair.
The Court of Appeal concluded that it was reasonable for a decision to dismiss to be based on the information available to the decision-maker at the time of making their decision and not on what they ought to have been aware of. As such the decision to dismiss was held to be fair.
Another case which is of particular interest this month is a European Court of Justice case involving the Greek police (Esoterikon v Kalliri). In this case Ms Kalliri applied to join the police force in Greece. Her application was declined due to domestic law which required candidates to be a minimum height of 1.70 metres (she was 1.68 metres). Ms Kalliri alleged that this requirement contradicted the constitutional principle of equality of the sexes and, as such, this requirement was annulled.
The ECJ held that the requirement for a person to be of a height no less than 1.70 metres clearly disadvantaged more women than men and therefore constituted indirect discrimination. It concluded that it was not objectively justified and, given the armed forces, port police and coast guard had differing minimum height requirements of 1.60 metres, it concluded that it was not necessary or appropriate.
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