Employment Bulletin – May 2016

Christian who tried to convert Muslim loses discrimination claim

A Christian who was disciplined for trying to impose her religious views on a junior Muslim colleague has lost her claim of unlawful discrimination and harassment.

The case involved a born again Christian, who held a senior post with an NHS Foundation Trust.

In 2013, a junior employee who was a practising Muslim complained that the senior employee had tried to impose her religious views on her by inviting her to attend church services, praying with her and, on one occasion, laying hands on her.

She also said that the senior employee had given her a book about a Muslim woman who had converted to Christianity. She said that she felt "groomed" and had started to feel ill as a result.

The senior employee said that all her conversations with the junior employee had been consensual and arose from her own expressions of interest.

An NHS panel found her guilty of serious misconduct and gave her a written warning.

The Employment Tribunal upheld the findings of the disciplinary panel. It said that the senior employee had blurred professional boundaries and placed improper pressure on a junior employee.

The Employment Appeal Tribunal has now upheld that decision. It held that the senior employee had not been subjected to disciplinary proceedings because she manifested her religious belief, but because she had subjected a subordinate to unwanted and unwelcome conduct which went substantially beyond "religious discussion".

Firm succeeds in cutting employee's compensation by 85%

A firm has succeeded in getting an 85% reduction in the compensation awarded to an employee whose dismissal was judged to be automatically unfair.

At the Employment Tribunal, the firm accepted that the dismissal had been unfair because it had failed to follow its capability procedure. However, it contended that if it had correctly applied its procedure, the employee would have been fairly dismissed for substantial reasons related to the inadequacy of his work in customer relations.

The tribunal held that there had been an 85% prospect that the employee would have been fairly dismissed no later than three months after the actual date of dismissal and the compensation was reduced accordingly.

The Employment Appeal Tribunal has upheld the decision. It said there had been no unfairness in the way the judge had conducted the hearing. She had found as a fact that at the date the employee had been dismissed, his managers had formed the genuine view that any improvement on his part would be unlikely to undo the damage done to customer relations.

From that starting point she had been entitled to find that by three months into the capability process, he would probably have exhibited the same lack of insight and refusal to accept his managers' guidance.

Company entitled to dismiss driver who exaggerated injuries

A company was justified in dismissing an employee after secret surveillance showed that he had exaggerated the extent of his injuries following an accident.

That was the decision of the Employment Appeal Tribunal in the case of a bus driver who reported that he had slipped on some water in the toilets at his depot.

The driver was seen by the company's occupational health adviser and was declared unfit for work at that time. He remained off work for several months. The company became suspicious and arranged for covert surveillance. After viewing the video, company managers concluded that the driver was exaggerating his injuries and he was eventually dismissed.

The Employment Tribunal concluded that the driver had indeed exaggerated his condition but still held that he had been unfairly dismissed.

The Employment Appeal Tribunal has now overturned that decision. It held that having found that the driver had been dishonest and misleading, it was perverse to conclude that he had been unfairly dismissed. It held that the driver's behaviour meant he "was guilty of serious misconduct that did amount to a fundamental breach of contract".

Employers no longer have to pay National Insurance for apprentices

Employers no longer have to make National Insurance contributions for apprentices under the age of 25.

The change came into effect on 6 April and applies to both new and current apprenticeships. It will produce a saving of about £1,000 a year when employing an apprentice earning £16,000 a year.

The government says it is committed to reforming apprenticeships to ensure they are high quality and responsive to the needs of employers by:

• giving employers the power to design and deliver new apprenticeships as part of the new Trailblazer initiative. There are now more than 1,300 employers designing apprenticeships in a broad range of jobs, from TV production to nuclear engineering
• introducing a new £10m fund to boost the number of degree apprenticeships available, providing more opportunities for young people to get a degree while working at a top company
• creating the Institute for Apprenticeships by April 2017 - a new independent body, led by employers that will ensure the quality of apprenticeships in England.

Skills Minister Nick Boles said: "Apprenticeships make sense for young people and for business. If you're an employer not already reaping the benefits, now is the time to act."

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