In the employment tribunals: April 2011

XpertHR provides summaries of recent employment tribunal rulings. 

Manager dismissed for sacking employee and recruiting replacement without authority
Dental nurse was unfairly dismissed for asking to be paid on time
Employer did not discriminate by passing threats investigation to the police
Employee accused of stealing company property and selling it to gypsies was unfairly dismissed
Gay waiter at Michelin-starred restaurant subjected to repeated sexual orientation harassment
Bottom-slapping of gay waiter was not discrimination
Aston Villa unfairly dismissed football historian who had supported club for 60 years
Employer carried out sham redundancy on whim of chief executive
Unfair dismissal: failure to allow NHS employee legal representation at disciplinary appeal hearing
Employee unfairly dismissed on allegation of fraudulently claiming company sick pay
Managers' comments put undue pressure on underperforming older worker to retire early
Journalist's belief in "higher purpose" of public service broadcasting is philosophical belief

Note: The decisions are not binding on other tribunals and are intended to provide illustrations for employers of situations that have led to tribunal claims. They are reported on XpertHR as soon as the transcript becomes publicly available, which is normally four to six weeks after the judgment has been made. 

Manager dismissed for sacking employee and recruiting replacement without authority

McQue v The London Crematorium Company plc ET/3301013/10

Date added: 27 April 2011

constructive dismissal | disciplinary sanctions | demotion | acting without authority

In this unusual case, an employee was dismissed and offered reinstatement on appeal, before purportedly resigning due to the terms of the reinstatement. 

Practical tips

Where there is a dispute of facts in tribunal proceedings, it is crucial that the employer is able to produce contemporaneous written evidence to establish the truth of its position. 

In this case, the tribunal observed that Mr Wright had made a file note on returning from holiday about the discussion he had with Mr McQue on 23 July 2009. This was an important piece of evidence, and would have been a significant factor in the tribunal accepting the company’s evidence as to what happened that day. 

Mr McQue was employed as an area manager for The London Crematorium Company plc. He reported to Mr Wright, who was the general manager and who had full responsibility for appointing and dismissing employees. The non-contractual element of the company’s disciplinary procedure provided for demotion as an alternative disciplinary sanction to dismissal for gross misconduct. 

On 23 July 2009, Mr McQue approached Mr Wright regarding Miss Carter, a probationary employee who was underperforming. He asked Mr Wright if it would be possible to “get rid” of her. Mr Wright alleged that he told Mr McQue that, after Miss Carter returned from holiday, they would deal with the matter, but that in any event she was entitled to one week’s notice and, should she be dismissed, a replacement would be needed. Mr Wright’s evidence was that he “specifically did not authorise [Mr McQue] to proceed with the dismissal of Faye Carter during this conversation…or to recruit a successor”. 

Mr Wright went on holiday from 10 to 14 August 2009. During that holiday, he was informed by his PA that Mr McQue had given Miss Carter verbal notice of dismissal on 4 August 2009, a fact that Mr McQue had not told anyone, including Mr Wright or the payroll department. He had not followed up his verbal notice in writing, but had appointed a replacement employee, who was due to start on 17 August 2009. Unbeknown to Mr Wright, as he was on holiday, Mr McQue had emailed him on 10 August 2009 confirming the dismissal and recruitment. 

On his return from leave, Mr Wright carried out an investigation regarding Mr McQue’s actions, and met with him to discuss the matter. At this meeting, Mr McQue said that he had interpreted Mr Wright’s comments on 23 July 2009 as giving him permission to dismiss Miss Carter. A disciplinary hearing was held on 3 September 2009, to address allegations that Mr McQue had taken inappropriate actions and exposed the company to potential legal action. Mr McQue was warned that the outcome of the meeting could be dismissal. 

At the hearing, Mr McQue maintained that he had dismissed Miss Carter and recruited a replacement with the express authority of Mr Wright. Mr McQue was dismissed with immediate effect for gross incompetence and gross misconduct. He appealed. The appeal officer considered that the appropriate sanction, taking into account Mr McQue’s good disciplinary record, was demotion. He offered to withdraw the dismissal on the condition that Mr McQue accepted a demoted position. Mr McQue was not prepared to accept the demotion, and purported to resign on 18 December 2009. 

Mr McQue claimed constructive dismissal, arguing that the proposed demotion from area manager was a fundamental breach of contract that led to his resignation. The tribunal did not agree. It found that the company was not in breach of contract by proposing to demote Mr McQue as an alternative to dismissal. The company had followed a fair procedure during the entire disciplinary process, and reached the reasonable conclusions that Mr McQue’s actions in dismissing Miss Carter and appointing a replacement without authority, and without following the company’s procedures, had exposed the company to possible legal action. Any faults in the procedure were corrected at the appeal, which was a rehearing, and Mr McQue’s claim failed. 

View the full transcript of the case 


Additional resources

Dental nurse was unfairly dismissed for asking to be paid on time

Mills v Dhinsa Dental Ltd ET/1803846/10

Date added: 27 April 2011

unfair dismissal | asserting statutory rights | pay statements and wages

This case involves an employee whose unfair dismissal was due to her asserting statutory rights regarding her pay. 

Practical tips

In this case, the employer’s failure to provide a payslip was not a very serious legal matter, although it created difficulties for the claimant. The employer dug a bigger hole for itself by dismissing the claimant because it felt that she was making a big fuss. 

A failure to pay an employee’s wages on time is a serious matter, and can easily lead to claims of constructive dismissal, unlawful deductions from wages and breach of contract. 

Miss Mills started work as a dental nurse and receptionist for Dhinsa Dental Ltd on 20 July 2009. Dr Dhinsa is a director of the company, and Mrs Dhinsa the practice manager. Miss Mills’ contract stated that she would be paid by bank transfer at the end of each month. The pay for the company’s staff in August 2009 was late and, as a result, pay day became an issue. Miss Mills’ evidence was that the company agreed to pay her wages on or before the 28th day of each month; the company claimed that it never promised this. 

Despite her requests, Miss Mills did not receive payslips for the last three months of 2009, which, as she is dyslexic, made it difficult for her to keep track of her finances. On 28 January 2010, Dr Dhinsa said to Miss Mills, “you must be happy, it’s pay day today”. However, on checking her balance the following day before work, Miss Mills found that she had not been paid. She was upset, and resolved to discuss the situation with Dr Dhinsa that morning when he arrived at the surgery. 

According to Miss Mills, she opened the door to Dr Dhinsa a few minutes before 9am on 29 January 2010. Although there was a patient standing outside, she did not let him enter because, for health and safety reasons, it was not the practice to allow patients in until 9am. Miss Mills claimed that she was not rude to the patient, but Dr Dhinsa gave a different account, alleging that she was rude and aggressive towards him. 

Miss Mills spoke about her pay to Mr Dhinsa, who insisted that she had been paid, and agreed that she could leave the surgery to check the cash machine next door. Around 9.30am, Miss Mills was informed by a colleague that Mrs Dhinsa had asked that she be told to leave the surgery immediately. Miss Mills was shocked by this, and rang Mrs Dhinsa on the surgery phone. According to Miss Mills, Mrs Dhinsa told her to collect her things, give her surgery key to a colleague, and leave. Miss Mills expressed surprise, claiming that she had merely queried why she had not been paid or given payslips. Mrs Dhinsa claimed that Miss Mills was rude to her, and was making the call in front of waiting patients. 

Later in the morning, Mrs Dhinsa called Miss Mills at home. Again, there was a conflict of evidence. According to Miss Mills, Mrs Dhinsa apologised for any confusion, insisted that Miss Mills had done nothing wrong, and stressed that her job was safe. Mrs Dhinsa alleged that she told Miss Mills that an investigation would need to be carried out regarding the issue of the patient left outside, which would be treated very seriously, and that she did not state that Miss Mills’ job was safe. 

In the afternoon, Mrs Dhinsa invited Miss Mills to attend a meeting that day. Miss Mills decided that it would be unwise to attend without seeking advice, and informed Mrs Dhinsa. On 1 February 2010, Miss Mills went to work, but was told by Dr Dhinsa that she would get a letter in the post and was not required at work. She received a letter the following day, dismissing her for her purported conduct. The letter referred to the “way in which [she] handled” the issue of her pay date, and the incident with the patient. The letter concluded that Miss Mills’ actions had resulted in a breakdown in trust and confidence. Miss Mills was unsuccessful in her appeal against dismissal, and she brought claims that included unfair dismissal and unlawful deductions from wages. 

At the time of her dismissal, Miss Mills had under one year’s service, so her claim was that she had been automatically unfairly dismissed for asserting the statutory right to be paid her wages on time (a failure to do so amounts to an unlawful deduction from wages) and the right to a written itemised pay statement. 

Where there was a conflict of evidence between the parties, the tribunal preferred the evidence of Miss Mills, whom it found to be a credible witness, to that of Dr Dhinsa and Mrs Dhinsa, whom it found to be unconvincing. The tribunal found that the company had orally agreed a variation of her written contract, with the effect that her pay was due by the 28th day of each month. 

The tribunal found that Miss Mills’ requests regarding her wages and payslips were made in good faith, and the reason or principal reason for dismissal was that she had asserted these statutory rights. It found that the company’s argument that the reason for dismissal was the incident with the patient to be “wholly without foundation”, and that this issue was an “afterthought” that had been used to justify the dismissal. The tribunal upheld Miss Mills’ claims. 

View the full transcript of the case 


Additional resources

Employer did not discriminate by passing threats investigation to the police

Breen v Bombardier NIFET/55/07 & NIFET/374/07

Date added: 26 April 2011

religious discrimination | harassment | sectarianism

This case shows that some incidents of harassment are so serious that the correct approach is for the employer to contact the police, rather than use its own internal harassment investigation procedure. 

Practical tips

Although the employer did the right thing in passing the investigation on to the police, it also continued to support the employee by listening to his concerns and contacting him on a regular basis. 

Consistency was the key to the employer successfully defending the religious discrimination claim here. Employers should apply the same policies on investigating harassment to everyone in the organisation. 

Mr Breen, who is Catholic, worked as an aircraft fitter at Bombardier in Belfast. He had experience of some of his fellow workers refusing to speak to or make contact with him and fellow Catholic employee, Mr McBride, because of their religion. Mr Breen alleged that lead hand Mr Blair had, during negotiations for a car sale during a night shift, produced an AK-47 rifle and asked him to purchase the weapon. Mr Breen claimed that he had told several colleagues about the incident, including his manager, Mr Small. Mr Breen said that he began to receive calls on his mobile and home phones accusing him of being involved in republican paramilitary activity and money laundering. He believed that these had something to do with his relationship with Mr Blair. 

Mr Breen found in his locker at work an envelope containing a live bullet and a sympathy card with a threat that stated “We no [sic] who you lawnder [sic] money for, your names [sic] on this one Taig beware”. Mr Breen reported the incident immediately to lead hand Mr Anderson, who reported it to Mr Smyth, the night-shift manager. Mr Breen was interviewed by the company’s security officer, Mr Wilson, and the matter was referred to the Harbour Police on the basis of the seriousness of the incident and because the company believed that it had neither the skills nor the authority to investigate the incident on a wider scale. 

The next day, two members of HR, Mr Galway and Mr Bingham, interviewed Mr Breen about the incident. Mr Breen returned to work the next night. 

Detective Constable Brolly, from the Harbour Police, interviewed Mr Breen about the incident and obtained a statement from him. After the incident, Mr Breen started to receive death threats and allegations of links to a paramilitary organisation on his mobile phone. The threats contained the statement that he could be "got" at work. 

The police investigated, but came to a dead end. Mr Breen experienced further intimidation outside work, including:

  • damage to several cars in his family car business; and
  • an approach outside a barber's shop by two men, unknown to him, who stated that he was being investigated and if found to be involved with republicans that he would be shot. 

Members of the company's HR and security departments met with Mr Breen on a number of occasions to:

  • discuss the incidents that had occurred outside work;
  • explore the possibility of his transferring; and
  • ask him if there was anything else that the company could do for him. 

Mr Blair allegedly told Mr Breen that he knew about his request for a transfer and that he would block it. Mr Breen said that he found it disconcerting that Mr Blair knew about his transfer request and construed the comments as a threat. Mr Breen went home immediately and was signed off sick. After various meetings and telephone conversations with the company's HR and occupational health departments, Mr Breen resigned. He later brought claims for constructive dismissal and religious discrimination. 

The Fair Employment Tribunal accepted that Mr Breen had been subjected to a "terrifying and intimidating ordeal" that was related to his work and had a connection with his religious beliefs. It also accepted that Bombardier had not followed its own harassment policy, which states that all incidents of harassment must be investigated. The company did not actively pursue an investigation once it had handed the matter over to the police. 

However, the Fair Employment Tribunal went on to say that the company did not commit a fundamental breach of Mr Breen's contract of employment when it failed to investigate the harassment. The non-application of the harassment policy arose from its belief that, because of the seriousness of the incidents, the police were the appropriate agency to investigate these matters due to their skills, resources and legal powers and that it was following the best course in handing the investigation over to the police. The Fair Employment Tribunal also pointed out that members of the company's HR, occupational health and security departments did meet frequently with Mr Breen and repeatedly asked him what the company could do to help him and help to identify the perpetrators. 

The Fair Employment Tribunal also dismissed the religious discrimination claim. It was not satisfied that the company's treatment of Mr Breen amounted to less favourable treatment. It argued that Bombardier did more than it could have under its harassment policy by involving the police with all their resources, skills, expertise and legal powers. The Fair Employment Tribunal also found no evidence that the non-application of the harassment policy was on the ground of Mr Breen's religion. Bombardier would have treated a Protestant worker in the same way. 

View the full transcript of the case  (on the BAILII website)  


Additional resources

Employee accused of stealing company property and selling it to gypsies was unfairly dismissed

Burns v Nottingham Rehab Supplies Ltd ET/2412639/09

Date added: 20 April 2011

unfair dismissal | gross misconduct | theft | disciplinary procedure

Serious allegations of misconduct require a commensurately thorough disciplinary investigation, as the employer in this case found to its cost. 

Practical tips

It is essential that an employee subject to disciplinary proceedings is given full details of the allegations against him or her and all witness evidence. 

Exceptionally, it will be appropriate to redact witness evidence, for example where there is genuine belief that a witness might be in danger if he or she could be identified. Most of the time evidence should not be redacted, nor should it simply be summarised, as this may deny the accused employee the chance to challenge it properly. 

Mr Burns was employed as an operations manager by Nottingham Rehab Supplies Ltd at its Blackburn site. The company is a lender of equipment to communities on behalf of local authorities. In August 2009, concerns were raised to HR by his deputy, Mr Pickering, that included an allegation that he had received between £400 and £500 for the sale of company property (racking) to gypsies. At a meeting with the head of HR, Ms Cook, Mr Burns denied the allegations. 

Ms Cook made further enquiries of staff, including Mr Pickering, who sent an email stating that Mr Burns had sold the racking for £450, and from the proceeds had given £20 to each member of staff at a Christmas party. Ms Cook also interviewed Mr Rley, who was described as a “local gypsy”. His statement said that he had bought 12 or 13 pallets of racking for £800 in cash from “boss man Steve”, and that Mr Burns had given him a key for the back gate to the site, which allowed him access for the few days that it took to take the racking. There was no record of any contact number for Mr Rley, or any address or location where he might be traced. Ms Cook’s investigation report alleged that it was known by other staff that Mr Burns had sold racking to a gypsy. 

The purchasing director, Mr Kennedy, invited Mr Burns to a disciplinary hearing. He sent Mr Burns the investigation report, which included summaries of the individual allegations, and some other documents. However, he did not send him Mr Pickering’s email, or any detailed or verbatim accounts of what members of staff had alleged or said they knew in respect of the allegations of theft and lack of security. Mr Burns was not provided with any witness statements, save that of Mr Rley. 

At the disciplinary hearing on 23 September 2009, Mr Burns stated that there would not have been 13 pallets of racking on the premises at the relevant time, and that there was only one key to open all doors. If he had given this key away, the whole premises would have been compromised. He said that the allegations of money from gypsies being given to employees at the Christmas party had been a joke that “had gone bad”. After the hearing, Mr Kennedy made further enquiries of Mr Rley and staff, but did not provide details of this investigation to Mr Burns. 

On 6 October 2009, Mr Burns telephoned Mr Kennedy and asked him whether or not he would be sacked at the reconvened disciplinary hearing the following day. Mr Kennedy said that he would be sacked, because “the weight of the evidence about the racking was too great”. In the end the reconvened hearing took place on 13 October 2009 in Mr Burns’ absence, as his car was not working and he could not travel by public transport in time. At the reconvened hearing, Mr Kennedy found that Mr Burns had committed acts of gross misconduct, namely selling racking to Mr Rley for financial gain, and giving Mr Rley a key to the premises. Mr Burns’ appeal against dismissal was unsuccessful, and he claimed unfair dismissal. 

The tribunal found that Mr Kennedy had come to the genuine belief that Mr Burns had committed the acts of misconduct alleged. However, the tribunal held that this belief was not reasonable. The allegations were serious, and would amount to a criminal offence if true. Mr Burns was not provided with the primary evidence on which the allegations were based. The tribunal observed that it is sometimes necessary for employers to redact the names of employees from witness statements obtained during disciplinary investigations. However, the “rolling together” in this case of what people said, without setting out clearly each member of staff’s evidence, was not a fair basis on which to present the evidence to Mr Burns. The failure to disclose precisely what each person alleged was unfair, because Mr Burns was denied the opportunity of placing the allegations in context, and of identifying plain errors or inconsistencies of allegations that went back many years. 

The tribunal also found that the employer had not followed up inconsistencies in the evidence provided by Mr Burns, Mr Rley and the members of staff. These included the alleged sale price of the racking and the lack of evidence for such a large amount of racking being on the premises at the relevant time. It was also unfair of Mr Kennedy to inform Mr Burns on 6 October 2009, before the disciplinary proceedings had concluded, that he would be dismissed. Further, the company had not followed its own written procedures regarding investigations and witness statements. 

The tribunal found that Mr Burns had been unfairly dismissed, and awarded him £40,400 in compensation. 

View the full transcript of the case 


Additional resources

Gay waiter at Michelin-starred restaurant subjected to repeated sexual orientation harassment

Ma v Hakkasan Ltd ET/2203130/10

Date added: 20 April 2011

sexual orientation discrimination | harassment | disability discrimination | constructive dismissal

This case is a good example of inappropriate workplace behaviour that is tolerated by employers, but which constitutes unlawful discrimination. 

Practical tips

This is a classic example of grossly inappropriate behaviour tolerated and dealt with poorly by an employer. 

If the company had dealt with Mr Ma's complaints properly from the start, it might have avoided the expense and administrative burden of a tribunal claim and, more importantly, spared him harassment at work. 

Mr Ma worked as a commis waiter at Yauatcha, a Michelin-starred London restaurant owned by Hakkasan Ltd. The company’s handbook states that it “wishes to provide an environment that respects the dignity of individuals at work", and that the company neither permits nor condones harassment of individuals. In May 2010, Mr Ma submitted a grievance regarding a number of allegations of harassment and discrimination. 

  • In December 2009, his manager said that he was sexy and discussed his nipples, which were erect due to him having been sent outside on a cold day wearing a thin uniform. 
  • In April 2010, when he complained about a gay customer pinching his nipple, his manager asked him if he liked it. 
  • In April/May 2010, two of the management team pretended to be gay men kissing and engaging in simulated sexual acts in his presence, and, during the incident, one of the managers sang Madonna’s “Like a Virgin”. 
  • In May 2010, a manager asked him whether or not he was a virgin and whether he penetrated or was penetrated by others. 
  • On an unspecified date, his colleagues joked about who he would take if he won a quiz prize of dinner at the restaurant, and suggested that he should be offered a man to take. 

Mr Ma also complained of disability discrimination, having been diagnosed as having type 2 diabetes in January 2010. He felt that he should have been transferred and/or promoted to a less demanding role. The company rejected Mr Ma’s grievance, but not before he had resigned, considering that the trust between him and his employer had been destroyed. He claimed discrimination on the grounds of sexual orientation and disability, and constructive dismissal. 

The tribunal noted that neither the restaurant’s general manager nor the bar manager had received any equal opportunities or equality training. It was influenced by the evidence of Mr Ma, whose story had remained consistent, in contrast to the company witnesses’ “shifting” evidence. For example, the company had attempted to downplay one of the incidents complained of by Mr Ma in his grievance, and remove any sexual connotation. 

Given that the tribunal found that the five instances of conduct complained of did indeed take place, the burden of proof shifted to the company to demonstrate that in no sense whatsoever was the harassment based on Mr Ma’s sexual orientation. The tribunal found that the company had not discharged that burden. The tribunal held that Mr Ma’s sexual orientation harassment claims succeeded. It further held that he had been constructively dismissed, the harassment putting the company in fundamental breach of contract, and that the dismissal constituted direct discrimination. However, the tribunal held that the company had not directly discriminated against Mr Ma by not promoting him. The reason for that was his failure to qualify for the position. 

The tribunal did not uphold Mr Ma’s disability discrimination claim. Although he was disabled under discrimination law, there was no evidence that his condition placed him at a substantial or any real disadvantage compared with those who were not disabled. The duty to make reasonable adjustments did not arise. 

View the full transcript of the case 


Additional resources

Bottom-slapping of gay waiter was not discrimination

Ceresa v Spaghetti House Ltd ET/2200062/10

Date added: 20 April 2011

sexual orientation discrimination | harassment | physical contact

An employee claiming discrimination must first prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that discrimination took place, as this case demonstrates. 

Practical tips

This case is a good example of how incidents in the workplace can be misinterpreted. 

Although the employer in this case successfully defended the claim, it no doubt incurred significant legal costs and expended a great deal of management time in doing so. 

It would have been difficult for the employer to foresee and prevent the “grand nero” incident, but a clear policy and training of managers on workplace harassment might have avoided the “bottom-slapping” allegations. 

Mr Ceresa, who is gay, worked as a waiter at a London restaurant owned by Spaghetti House Ltd. In May 2009, the company appointed a new manager, Mr Mihoci, who had a strong management style. This style attracted a number of complaints to the company’s HR department, including one from Mr Ceresa, who was temporarily moved to a different restaurant. 

In September 2009, according to Mr Ceresa, Mr Mihoci was drunk on several occasions and frequently slapped him on the bottom, telling him to run and work faster. Mr Ceresa felt that this was a “stupid joke” made at his expense, because Mr Mihoci knew that he was gay. Although Mr Ceresa initially alleged that he had not seen Mr Mihoci slapping other waiters on the bottom, at the tribunal hearing he admitted that he had seen Mr Mihoci slapping a female waiter on at least one occasion. Mr Ceresa did not mention this allegation prior to his ET1 submission. 

Mr Ceresa also alleged that Mr Mihoci made jokes "against gays" at his expense. The only alleged joke that Mr Ceresa gave details of was when, on an unspecified date, he went to order a “grand nero” (meaning “big black” in Italian) coffee from the restaurant bar. Mr Mihoci allegedly said “no, you want a big white”, which Mr Ceresa considered to be a sexual innuendo. He also complained that Mr Mihoci had threatened to cut his tips. 

Mr Ceresa lodged a grievance about some of Mr Mihoci’s alleged behaviour, as a result of which Mr Mihoci was given advice about his management style. Matters came to a head on 8 December 2009 with an angry dispute between the two men. On 11 December 2009, Mr Ceresa gave oral notice of his resignation, having rejected the company’s repeated offers to move him to other restaurants. He gave written notice the following day, and claimed sexual orientation discrimination. 

With regard to the “bottom-slapping” allegation, the tribunal found that Mr Ceresa had, by his initial complaint about Mr Mihoci, shown that he was willing to complain if he had cause to do so. It found that, if Mr Ceresa had been systematically and deliberately slapped, he would have complained about it earlier and certainly in his grievance. The tribunal found that, when the restaurant was busy, there was a manic atmosphere, and Mr Mihoci would “somewhat forcefully” direct waiters. This included making physical contact. Although Mr Mihoci had perhaps touched Mr Ceresa’s bottom, this was not on the basis of his sexual orientation. Moreover, Mr Ceresa did not tell anyone at the restaurant that he was gay until 11 December 2009, and there was nothing about his demeanour or appearance that would have informed Mr Mihoci that he was gay. 

On the “grand nero” allegation, the tribunal found that the statement, if made by Mr Mihoci, was not on the ground of sexual orientation. Mr Mihoci is Slovenian, and Mr Ceresa is Italian: both were conversing in English as a foreign language and there was “ample scope for misunderstanding”. The tribunal further concluded that any “over-forceful” or “robust” treatment of Mr Ceresa was simply part of Mr Mihoci’s general manner, and not because Mr Ceresa is gay. Mr Mihoci’s threat regarding tips was made because he felt that Mr Ceresa's work had not been satisfactory. 

Overall, the tribunal held that Mr Ceresa had not proved facts from which it could conclude, in the absence of an adequate explanation from the company, that he had been discriminated against, and dismissed his claim. 

View the full transcript of the case 


Additional resources

  • How to deal with bullying and harassment in the workplace A bullying and harassment policy should define acts of bullying and harassment to make it clear what is considered as unacceptable behaviour. This can range from unwanted physical contact or verbal abuse to isolation and exclusion from work-related social activities or unreasonable work-related instructions. 
  • Equal opportunities and dignity at work policy Use this model policy as part of the company's staff handbook or as a stand-alone document if there is no handbook. Larger employers may wish to use the more detailed separate equal opportunities and dignity at work policies. 
  • Line manager briefing on bullying and harassment This line manager briefing covers the topic of bullying and harassment and aims to provide guidance on what managers should do to reduce the likelihood of incidents of bullying and harassment at work and deal effectively with any complaints of bullying or harassment that may arise. 

Aston Villa unfairly dismissed football historian who had supported club for 60 years

Lerwill v Aston Villa Football Club Ltd ET/1304758/10

Date added: 14 April 2011

unfair dismissal | gross misconduct | social media

In this case, a Premier League football club unfairly sacked its football historian, who had supported the club for over 60 years. 

Practical tips

Employees’ use of social media is an increasing problem for employers. This case shows that it is essential to put in place clear rules regarding how employees should behave with regard to social media and to communicate these to employees so that they are aware of their obligations. 

The case is also a reminder that employers should act fairly with regard to treatment of previous warnings, whether informal or formal. The club’s view of the discussion between Mr Preece and Mr Lerwill in early 2009 escalated from an informal chat to a management instruction, with the result that Mr Lerwill was unclear that he faced dismissal for breaching the informal warning. 

In September 2008, Mr Lerwill was employed by Aston Villa Football Club Ltd as its football historian. He had his own unofficial website about the club, and regularly contributed to fan forums. He had also written a published history of the club, called Villa Chronicles. In early 2009, Mr Lerwill posted an article on an unofficial fan forum about a recent club match that he had attended. As a result of the article his line manager, Mr Preece, asked him not to make postings on websites other than of a historical nature. Mr Lerwill was not given a formal warning and no disciplinary proceedings took place. 

On Christmas Day 2009, Mr Lerwill was nursing his wife, who was unwell. To pass the time, he logged on to an unofficial fanzine forum, where he saw criticisms of an article that the posters assumed that he had written. In fact, the article had been posted by the club’s media team, having been extracted from an interview that Mr Lerwill had given for the club’s television channel. The criticism of the article “stung” Mr Lerwill, who feared that the disparaging comments would affect sales of Villa Chronicles. Mr Lerwill posted comments denying his authorship and made a number of inappropriate statements, which he claimed arose from the stress that he was under at the time. His position was that he did not use bad language or criticise anyone directly by name. 

Mr Lerwill was invited to an investigation meeting regarding allegations of:

  • making inappropriate and unprofessional comments towards fans in his capacity as a club employee;
  • being critical of colleagues within the media team on a public forum; and
  • posting comments on the message board despite being asked not to do so in early 2009. 

At the investigation hearing, Mr Lerwill stated that he had been acting as an individual and not as a club employee, and that he had not done any harm to the club. A disciplinary hearing was held on 15 January 2010, during which Mr Lerwill said that he had been given no clear guidance about third-party communications and that the outcome of the exchanges on the forum had ended very positively. The club dismissed Mr Lerwill for gross misconduct and did not uphold his appeal. Mr Lerwill claimed unfair dismissal. 

The tribunal accepted that the club had a genuine belief in Mr Lerwill’s misconduct and that there had been a reasonable investigation. However, the tribunal found that the club’s decision to dismiss fell outside the band of reasonable responses. 

Mr Lerwill had never been given any indication of the severity with which the club would view his breach of the informal discussion with Mr Preece in early 2009, nor was there any guidance for him in any policy or procedure or his contract that would put him on notice that comments on a public message board could result in disciplinary proceedings and dismissal. The club placed great emphasis on the notoriety of the fact that Mr Lerwill was its employee and any postings that he made were deemed in its opinion to be made on behalf of it. However, Mr Lerwill was not aware that the club held this opinion. The tribunal held that Mr Lerwill had been unfairly dismissed. 

View the full transcript of the case 


Additional resources

Employer carried out sham redundancies of HR managers on whim of chief executive

Oakley and another v The Garden Centre Group ET/2700276/10 & ET/2700279/10

Date added: 13 April 2011

unfair dismissal | sham redundancy

In this case, a well-known employer was found to have carried out a sham redundancy process. 

Practical tips

This case is a clear reminder that before commencing a redundancy consultation process, the employer must have a genuine redundancy situation in the first place. 

It is not clear whether or not Mrs Madine’s email would have constituted a ground for disciplinary action, but the company would have been better off at least considering that option rather than plunging straight into a sham redundancy process. 

Mrs Madine and Mrs Oakley were employed as regional HR managers by The Garden Centre Group Ltd, which runs the well-known Wyevale garden centres. On 31 October 2009, both women were dismissed, purportedly for redundancy, and were not successful in their appeals. However, the employees believed that the real reason was a knee-jerk reaction by Mr Marshall, the company’s chief executive, to an email that he had seen from Mrs Madine that he regarded as displaying some lack of loyalty to the company. Both employees claimed unfair dismissal, arguing that the redundancy process was a sham, and in any event not fairly handled. 

The company’s case was that, on 9 September 2009, the company held a meeting of directors and senior managers at which it was decided that certain cost-cutting plans had to be put in place. The company’s case for redundancy was that three regional HR managers’ jobs would be outsourced, in full or in part, to external consultants. The claimants’ position was that no such meeting ever took place. 

The tribunal observed that no notes had been provided of the alleged meeting of 9 September 2009, and that there was no evidence of any proper consideration of who should have been included in the redundancy pool. The company had given no rationale to the claimants as regards the decision to make them redundant. It did not specifically tell them during consultation that their function was going to be outsourced, or provide them with financial details of the state of the company. The claimants were not even specifically told that it was a cost-cutting exercise, and were simply asked to come up with a proposal to avoid redundancy. The tribunal also found that the company had not made a genuine attempt to find alternative positions for the claimants. 

Despite Mrs Madine making it clear to the appeal officer that she believed that her redundancy and that of Mrs Oakley were due to the email from her that had been forwarded to Mr Marshall, he failed to investigate the matter. The tribunal also took into account the evidence of Ms Cunningham, whose job function is not specified in the tribunal decision, but who had reported to the claimants before leaving the company for reasons of “integrity”. 

Ms Cunningham’s evidence was that, when Mr Marshall read Mrs Madine's email, he had made a comment that suggested that he disapproved of the mild disloyalty that he perceived in the email, and that she was to make the claimants redundant. Ms Cunningham pointed out to Mr Marshall that in her position she reported to the claimants, and was unable to make them redundant. Mr Marshall apparently appointed another manager to carry out the redundancies. 

The tribunal considered which scenario was more likely: Mr Marshall taking offence at the email and determining that the claimants had to be dismissed and the “remaining players simply fitting in and doing his bidding”; or a genuine redundancy situation and process. The tribunal held that the first scenario reflected the reality of the situation and was “unanimous that the process [was] a sham from beginning to end”. The tribunal found that the involvement of the external consultants for the company’s HR function was the same both before and after the claimants’ dismissals and held that there was no genuine redundancy situation. 

The tribunal found that both claimants had been dismissed, and that the company had carried out an “irrational and unfair reorganisation at the whim of Nicholas Marshall”. 

View the full transcript of the case 


Additional resources

Unfair dismissal: failure to allow NHS employee legal representation at disciplinary appeal hearing

Gentry v Dartford and Gravesham NHS Trust ET/1101884/08 & ET/1101278/08

Date added: 12 April 2011

human rights | disciplinary hearing | request to be accompanied by a lawyer

This employment tribunal decision demonstrates that there are circumstances in which it is necessary for employers to allow employees to have legal representation at a disciplinary appeal hearing, following the Court of Appeal decisions in R (on the application of G) v Governors of X School and Y City Council [2010] IRLR 222 CA and Kulkarni v Milton Keynes Hospital NHS Trust and Secretary of State for Health [2009] IRLR 829 CA

Practical tips

Where a dismissal could result in the worker being barred from working in his or her chosen field, the employer may need to allow legal representation at the disciplinary hearing or appeal hearing. 

Employers that are particularly affected include those in the health, childcare and financial sectors. 

The key case in this area, Governors of X School, is the subject of an appeal to the Supreme Court. Until we know the outcome of that case, employers in these sectors should continue to consider allowing lawyers to represent employees at disciplinary hearings or appeal hearings. 

Dr Gentry was employed as an obstetrics and gynaecology consultant at Dartford and Gravesham NHS Trust. A colleague, Dr Jenner, had expressed concerns about two incidents during surgery in September 2006, which resulted in an investigation. The trust concluded that Dr Gentry should not undertake any surgery unless there was a second consultant present. Dr Jenner wrote to Dr Gentry's previous employer seeking confirmation that she had the relevant experience that she claimed. 

In March 2007, Dr Gentry made a complaint to the clinical director, Dr Schreiner, that some of the theatre staff had subsequently made her working life "unbearable" and that she had to be "watching [her] back all the time". About a month later, Dr Schreiner invited Dr Gentry to a meeting to discuss her "punctuality and attendance". Dr Gentry responded with a letter alleging that she was "the target for gossips and witch-hunts". 

In June 2007, Dr McDermott, a consultant who was observing an operation, made a complaint that Dr Gentry had altered a patient consent form after the operation. Dr Schreiner completed an "incident/near miss" form and, although the matter appeared to be settled informally, it was clear that the relationship between Dr Gentry and Dr Schreiner had deteriorated. In October 2007, Dr Gentry complained to Dr Schreiner that she had been contacting her trainers without her consent, while Dr Schreiner initiated a formal disciplinary investigation into allegations that Dr Gentry had:

  • altered patient records;
  • provided misleading information about her previous experience; and
  • not come up to the standards of attendance, punctuality and reliability expected. 

Dr Evans was appointed to investigate and, after conducting interviews with the relevant parties, concluded in a detailed report that Dr Gentry had altered the patient consent form. However, the other allegations were not upheld. On receipt of the report, the medical director, Dr Alban-Davies, decided that disciplinary action was necessary. Dr Gentry was represented at the hearing by a member of the Medical Defence Union. The patient who was the subject of the patient consent form was not called to give evidence, nor was Dr Niaz, who had countersigned the consent form. The outcome of the hearing was that Dr Gentry was dismissed for gross misconduct in April 2008. 

In May 2008, Dr Gentry submitted a letter of appeal. Her firm of solicitors requested that she be allowed to be represented by Mr Lambert, the solicitor who was dealing with her case. It argued that "the outcome of the appeal hearing will be of considerable importance to Dr Gentry's future career and will also impact upon her ongoing professional conduct proceedings with the [General Medical Council]". 

The trust refused the request for Dr Gentry to be represented by a solicitor at the appeal hearing. It pointed out that its policy was that employees could be represented only by a work colleague or a trade union representative. Her solicitors responded that "the entire future of Dr Gentry's medical hearing rests on the outcome of the hearing". The trust again refused and, in the event, Dr Gentry represented herself at the appeal hearing in November 2008 because she was unable to find a suitable available colleague or union representative. In December 2008, the trust informed Dr Gentry that her appeal was unsuccessful, and she claimed unfair dismissal. 

The employment tribunal pointed out that the trust's response to the claimant's request through her solicitors did not involve any consideration as to whether or not it should depart from its standard policy in the interests of fairness and natural justice. There was "a rigid application of an inflexible policy". 

The tribunal concluded that no reasonable employer would have maintained this position without some consideration of the potential for unfairness. It stressed that it was by no means inevitable that Dr Gentry would have been dismissed. The solicitor's letters had made a cogent case for Dr Gentry to have legal representation at the appeal hearing and a lawyer could have advanced compelling arguments about flaws in the procedure, especially in relation to the failure to call Dr Niaz, who had also signed the form, as a witness. 

Applying the Court of Appeal decision in Governors of X School, the tribunal concluded that the trust's failure to allow legal representation at the appeal hearing was a "major procedural flaw" which made Dr Gentry's dismissal unfair. It also breached art.6 (right to a fair and public hearing) of the European Convention on Human Rights. 

View the full transcript of the case 


Additional resources

  • How to deal with workers' statutory right to be accompanied at disciplinary and grievance hearings The XpertHR "how to" section looks at the statutory right for workers to be accompanied at disciplinary and grievance meetings. It explains when the right applies and gives practical advice for employers on allowing workers to exercise the right, while ensuring that disciplinary and grievance proceedings are dealt with promptly and effectively. It also looks at the circumstances in which employees may have the right to legal representation at a disciplinary hearing. 
  • Thomson and others v London Underground Ltd ET/3301388/10 This employment tribunal case concerns whether or not three employees were entitled to be accompanied at disciplinary investigation meetings held by a third party. 

Employee unfairly dismissed on allegation of fraudulently claiming company sick pay

Pacey v Caterpillar Logistics Services (UK) Ltd ET/3501719/10

Date added: 7 April 2011

unfair dismissal | gross misconduct | sickness absence

An employer that dismisses an employee on an allegation of fraudulently claiming to be sick needs clear evidence, as this case demonstrates. 

Practical tips

Where an employer suspects that an employee is fraudulently claiming to be ill, it must obtain full medical evidence on the matter, and go back to the employee’s GP or its occupational health adviser with any unanswered questions, before making any disciplinary decision. 

The tribunal in this case stated that, in the experience of all its members, it had never come across a situation where a company had decided on lay consideration alone that an employee was falsely claiming to be sick. 

Mr Pacey worked for Caterpillar Logistics Services (UK) Ltd as a warehouse operative and, until his dismissal, had a good employment record with no excessive absences. On 30 November 2009, an incident occured involving another forklift truck, and he injured his back. After seeing Mr Pacey on 3 December 2009, the company’s occupational health adviser confirmed that he was not fit for work. Mr Pacey remained off work and saw a GP on 21 December 2009, who signed him off until 4 January 2010. 

The company and its insurers were suspicious about the accident on 30 November 2009 because of the lack of damage to the vehicles involved and the fact that the driver of the other truck was not injured. The insurers arranged for an investigator to follow Mr Pacey and video him. The surveillance took place on 23, 24 and 30 December 2009. The video showed Mr Pacey doing various activities including:

  • clearing ice from and driving his car;
  • walking his dog and playing with it; and
  • carrying light shopping. 

A report accompanying the video stated that “to the lay observer, [Mr Pacey] does not present as a man who suffers from any residual disability which would preclude him from undertaking his employment”. 

Mr Pacey returned to work on normal duties on 4 January 2010. The company asked him for a statement about the accident and on 22 January 2010 he met with two managers to discuss the matter. Those managers recorded that Mr Pacey said that, during his absence, he could not:

  • walk more than a couple of steps;
  • sleep for more than three hours;
  • sit for long periods; or
  • drive his car. 

At the meeting, Mr Pacey was given a pre-prepared letter suspending him from work on an allegation of gross misconduct, namely falsely claiming company sick pay while being fit for work from 1 December 2009 until 4 January 2010. 

An investigation hearing took place on 25 January 2010, during which Mr Pacey saw the surveillance video. He said that he had followed his doctor’s advice to take light exercise and that his activities on the video were consistent with that advice. Mr Pacey disputed the record of the meeting of 22 January 2010, stating that he had not said that he could not walk, drive or sleep after the first day or so after the incident, only that it was uncomfortable to do so. 

A disciplinary hearing took place on 29 January 2010, at which Mr Pacey maintained his position. The hearing was adjourned, and he provided a report from a GP that stated that he had been advised to do gentle exercise such as walking. The company wrote to Mr Pacey’s GP on 19 February 2010 about the video, and asked two specific questions that the GP did not directly answer in his reply. The company did not go back to the GP and dismissed Mr Pacey at a reconvened hearing on 29 March 2010. The company’s evidence at the tribunal hearing was that, because the GP had said that Mr Pacey would have been able to do the majority of the activities in the video, the inference was that he would not have been able to do all of them. The disciplinary officer considered that this proved that his claim was exaggerated and false. Mr Pacey’s appeal was dismissed and he claimed unfair dismissal. 

The tribunal watched the surveillance video and considered that, although Mr Pacey appeared able to do many things, the tribunal members were themselves lay observers of the surveillance footage, and were not able or qualified to say whether or not it showed that Mr Pacey had a back problem sufficient to keep him off work. 

The tribunal considered the reason for dismissal, which was falsely claiming sick pay for the period from 1 December 2009 to 4 January 2010. The tribunal found that the company had not satisfied it that this was the genuine and true reason for dismissal, taking into account the following factors:

  • It was the insurance company, not the employer, that started the investigation procedure into the accident. 
  • The company accepted that there was no evidence before 23 December 2009 to suggest that there was anything wrong with Mr Pacey’s absence up to that date, even though the charge related to the whole absence period. 
  • The charge was established before the company had spoken to Mr Pacey: the letter regarding the allegation that led to his suspension was prepared before the meeting of 22 January 2010. The tribunal rejected the suggestion that the company might have changed its position at the meeting. 
  • It was, the tribunal considered, “completely incomprehensible” that the company would dismiss Mr Pacey on an allegation that he was fraudulently claiming to be ill without getting medical evidence on it. The company’s occupational health doctor did not look at the video. 
  • There was “clear cherry-picking” in what the company decided to rely on from the report from Mr Pacey’s GP. 

The tribunal found that Mr Pacey had been unfairly dismissed, and upheld his claim. The tribunal stated that, even if it had been satisfied with the reason for dismissal given by the company, it would have had “no hesitation” in saying that it was a totally inadequate investigation and that no reasonable employer would have come to the same conclusion as the company. 

View the full transcript of the case 


Additional resources

Managers' comments put undue pressure on underperforming older worker to retire early

Newey v Sainsbury's Supermarkets Ltd ET/2514387/09

Date added: 6 April 2011

age discrimination | capability procedure | retirement

The employment tribunal in this case found that comments from two managers in capability meetings, suggesting that an underperforming older worker might consider early retirement, constituted age discrimination. 

Practical tips

This is just the sort of case that employers will fear when they no longer have the protection of being able to retire employees under the default retirement age, which is being phased out from 6 April 2011. 

Managers need to be educated about the dangers of suggesting that an underperforming employee retire, even when the manager’s actions are borne out of frustration or a genuine attempt to avoid what could be a humiliating capability dismissal of a long-serving employee. 

There is a fine line between trying to find an amicable solution to a capability issue and putting unfair pressure on underperforming older workers to retire, which can be age discrimination. 

Mr Newey, who was born in 1955, had worked at Sainsbury's for almost 30 years. He was a manager and was acquainted with Ms Rees, who was appointed the regional operations manager in 2004 and was responsible for, among others, Mr Newey's store. 

Ms Rees carried out Mr Newey's performance review in 2004, and there were no reported problems with his work. In spring 2005, Mr Newey was moved to another store after "issues between [him] and some of his staff". Mr Newey's first 18 months there were a success, as evidenced by the award of several bonuses to him. 

In November 2006, Ms Rees gave Mr Newey two negative scores in her assessment of his "leadership behaviours", which was one of the areas under the employer's performance management system. These related to the Mystery Customer Measure (where anonymous shoppers randomly test employees' knowledge of products) and Mystery Availability Check (where anonymous shoppers randomly check to see if a range of items are available in a particular store). 

Mr Newey felt that the scores were harsh and unjustified and, as the employment tribunal later acknowledged, the relationship between the two managers became strained after that and never recovered. Concerns over these failings in Mr Newey’s store led to:

  • a visit to the store by a Mystery Availability Check expert in March 2007, who confirmed that there was indeed a problem;
  • a refresher course in this area for Mr Newey and others in May 2007, after which he was given 12 weeks to turn things around;
  • feedback in his May 2007 performance review that he was improving, but that he was still underachieving;
  • in June 2007, the award of a smaller bonus than he had received on previous occasions;
  • in July 2007, a report that said that the Mystery Availability Check ratings in his store had not improved;
  • a disciplinary hearing in July 2007 for various "preventable errors" by him that resulted in a verbal warning; and
  • a grievance from Mr Newey in August 2007 that the way he was being managed was unfair, with the grievance meetings taking place in September 2007. 

The result of the grievance was a recommendation that Ms Rees conduct a series of weekly meetings with Mr Newey and visits to his store. In the event, only the first visit took place before Ms Rees was reassigned as maternity cover in a different area. 

In the meantime, Mr Barlow covered the area and he also found Mr Newey to be underperforming, and gave him a negative Mystery Availability Check score in April 2008. When Ms Rees returned in June 2008, she decided that she would meet with Mr Newey only when an HR representative was present. Mr Newey, who was eligible for early retirement because he had reached the age of 50, claimed that:

  • in a meeting in October 2008 when he was again marked down, Ms Rees said to him "Here we go again. When are you going to retire?"; and
  • during an appeal heard in March 2009 against another verbal warning for poor performance, the manager hearing the appeal, Mr Chason, said "You are 54 years old and if I was you I would be retiring". 

Mr Newey resigned in June 2009, after the rejection of his grievance that the way in which Ms Rees had supervised him amounted to bullying and that retirement had been "used as a threatening tool". He brought claims for constructive dismissal and age discrimination. 

The employment tribunal dismissed the constructive dismissal claim. It found that the cumulative effect of the treatment that Mr Newey received was not likely or calculated to damage or destroy the relationship of trust and confidence between the parties. It had no doubt that Mr Newey had consistently failed to achieve a target that his employer reasonably considered to be very important. The tribunal noted that the employer had expended considerable effort in its attempts to improve Mr Newey's performance. 

However, the employment tribunal upheld the complaint of age discrimination. It was satisfied that, on two occasions, managers had suggested to Mr Newey that he should consider early retirement as an alternative to proceeding through the employer's capability procedure. Both Ms Rees and Mr Chason had acknowledged that the possibility of early retirement had been raised as an option. 

The tribunal found that the managers' comments amounted to undue pressure to use early retirement as a means of getting Mr Newey to leave employment early. A store manager who was underperforming in the same way as Mr Newey, but who was not entitled to take early retirement, would not have been treated in the same manner. 

The employer's argument that its treatment of Mr Newey was not on the ground of his age, but because of his poor performance, was rejected. The tribunal said that this argument might have been valid if the employer had a general policy of encouraging underperforming managers under the age of 50 to resign. It also found no evidence to support the employer's assertion that raising the issue of retirement was intended to assist it with workforce planning by finding out when it would need to get a replacement for Mr Newey. It did not believe that the managers had staff planning in mind when they made the comments. They simply wanted to resolve the issues caused by Mr Newey's capability problems. 

View the full transcript of the case 


Additional resources

  • Post-default retirement age - retirement policy and procedure Use this model policy to deal with the retirement of employees to whom the default retirement age does not apply. 
  • Line manager briefing on capability It is advisable for all line managers to take active steps to manage any lack of capability on the part of their employees. This line manager briefing covers the topic of capability and aims to provide guidance on the effective management of employees who are underperforming. 

Journalist's belief in "higher purpose" of public service broadcasting is philosophical belief

Maistry v BBC ET/1313142/10

Date added: 5 April 2011

religion or belief discrimination | meaning of philosophical belief

An employment tribunal has held that a former BBC employee's belief that "public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion" is a philosophical belief for the purposes of discrimination legislation. 

Practical tips

This case concerns whether or not the claimant's belief comes under the protection of discrimination legislation, not whether or not he was actually discriminated against. That issue still needs to be considered by the employment tribunal. 

Mr Maistry claimed that the BBC unfairly dismissed and discriminated against him on the grounds of age and his philosophical belief. The employment tribunal considered various preliminary matters such as time limits and a request by Mr Maistry to amend his claim form. The key issue that the tribunal considered was whether or not his belief fell within the definition of a "philosophical belief" for the purposes of the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) (now replaced by the Equality Act 2010). 

The employment tribunal explained that Mr Maistry put forward as his philosophical belief a belief in the "higher purpose" of public service broadcasting. Mr Maistry had been a student leader, trade unionist and journalist in South Africa at the time of the anti-apartheid struggle and was banned from studying at university in South Africa for his role, alongside Steve Biko, in the black student boycotts in 1972. Mr Maistry was also a founder member of the Media Workers Association of South Africa. He told the tribunal that he was forced to flee South Africa for a second time in 1987 after his reports for international news outlets led to security police raids on the Press Trust of South Africa News Agency. 

Mr Maistry explained to the tribunal that the lessons of apartheid had reinforced his belief that "committed and concerned journalism is an essential component of democracy" and "public service broadcasting provides a very effective space for enhancing citizenship". He argued that, in the context of apartheid, the central question that had to be addressed was that one group of citizens had been brought up to consider themselves "superior" and another group of citizens had been brought up to consider themselves "inferior". Mr Maistry said that this was an example of how the public space afforded by public service broadcasting could have provided a medium in which important issues could be debated. 

Mr Maistry referred to the fact that the BBC is publicly funded by the licence fee and has a mission to inform, educate and entertain. He pointed out that, to fulfil that mission, the BBC is subject to a Royal Charter that set out six public purposes, including:

  • sustaining citizenship and civil society;
  • promoting education and learning; and
  • stimulating creativity and cultural excellence. 

The employment tribunal applied the test set out in Grainger plc v Nicholson [2010] IRLR 4 EAT. In that leading case, the Employment Appeal Tribunal considered that, for a philosophical belief to come within the legislation, it must:

  • be genuinely held;
  • be a belief and not an opinion or viewpoint based on the present state of information available;
  • be a belief as to a weighty and substantial aspect of human life and behaviour;
  • attain a certain level of cogency, seriousness, cohesion and importance; and
  • be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others. 

Applying these criteria to Mr Maistry's belief, the employment tribunal made the following observations:

  • It had no reason to doubt that Mr Maistry's belief is genuine. It could clearly see that from his account of his journalistic career. 
  • It accepted that Mr Maistry's belief is indeed a belief, rather than an opinion or viewpoint based on the present state of information available. Mr Maistry was right to point to statements made by the present Director General of the BBC and by Lord Reith as to the purpose of public broadcasting and to the fact that it has attracted commentary by philosophers and academics, as evidence of a shared belief in the importance of an independent public space where "a politics of complex cultural dialogue" can take place. 
  • The belief concerns a weighty and substantial aspect of human life and behaviour. A belief in the importance of providing a non-commercial, non-Governmental, independent public space in which cultural, social and political tensions can be debated and explored, and in which tolerance of other viewpoints is fostered, clearly relates to weighty and substantial aspects of human life and behaviour. The tenor of the quotes relied on by Mr Maistry shows that it is his view that having an independent public debating space is an essential component of a democratic society. 
  • The asserted belief has attained a certain level of cogency, seriousness, cohesion and importance, as shown from the third point. 
  • The employer accepted that Mr Maistry's asserted beliefs are worthy of respect in a democratic society and are not incompatible with human dignity. 

The employment tribunal stressed that its first instance decision does not have the potential to "open the floodgates" for employment tribunals to be awash with claims from employees arguing that they have been discriminated against for having a strongly held belief in the purpose or mission statement of their public or private sector employer. It said that it may well be that the scope of what is a "philosophical belief" is wide, but any belief of this kind must still be tested on a case-by-case basis using the test in Nicholson

The tribunal was also keen to point out that it had merely established that there is a protected characteristic in this case to allow a discrimination complaint to be brought. It described the "real battleground" as covering whether or not there has been less favourable treatment and, if so, whether or not the less favourable treatment was on the ground of the belief relied on. 

View the full transcript of the case 


Additional resources