Frontline UK case updates - February 2019

1. Discriminator's religion or belief cannot amount to direct discrimination
2. Urgent injunction granted to prevent disclosure of sexual harassment grievances
3. The issue of comparators in the EAT and Court of Appeal
4. Are professional athletes employees or workers for their governing body and funders?

Discriminator's religion or belief cannot amount to direct discrimination

Gan Menachem Hendon Limited v De Groen UKEAT/0059/18
Practical Law

On 12 February 2019, the EAT confirmed that a discriminator's motives for less favourable treatment are immaterial in a case of discrimination, rejecting the ET's finding in the case.

The Claimant was a teacher in a Jewish nursery which was run by its owners in line with ultra-orthodox Chabad principles. However, in contravention of these principles, the Claimant was unmarried and cohabiting with her boyfriend. When asked by her employer to falsely confirm that she was no longer living with her partner she refused and was dismissed on the basis that (inter alia) she had acted in contravention of the nursery's culture, ethos and religious beliefs.  The Claimant then brought claims, including direct and indirect discrimination on the grounds of religion or belief, which were upheld by the ET.

However, the EAT disagreed and stated that direct discrimination could not arise from the alleged discriminator acting because of its own religion or belief (itself a protected characteristic). The motive was irrelevant. In this case, the alleged discriminator would have treated any proposed comparator in the same way and so there was no less favourable treatment on grounds of religion or belief, regardless of the discriminator's motive.  Further, the Claimant's claim for indirect discrimination for religion and belief was also rejected as the discriminator's request that the Claimant make a dishonest statement about her private life did not amount to a "provision, criterion or practice" but rather an ad hoc measure.

While the main claims of this case were rejected, the EAT upheld the Claimant's claims of discrimination and harassment on grounds of sex.

Following on from the "Gay Cake" case of Lee v Ashers Baking Co Limited in the Supreme Court, this case provides another helpful reminder that a direct discrimination claim cannot be made on the basis of the religion or belief of the alleged discriminator.

Urgent injunction granted to prevent disclosure of sexual harassment grievances

Linklaters v Frank Mellish [2019] EWHC 177 (QB)

On 31 January 2019, magic circle law firm, Linklaters LLP, was awarded an urgent temporary injunction to prevent a former employee from making its confidential information public through giving media interviews about the culture of the firm, in particular about the "ongoing struggle Linklaters LLP has with women in the workplace". The former employee in question, Mr Mellish, was director of business development and marketing during his time at the firm and was part of the executive committee. His employment ended in June 2018, and he continued to receive termination payments from Linklaters LLP until 11 January 2019.

On 23 January 2019, Mr Mellish sent an email to partners at the firm referring to specific examples of incidents characterised neutrally by the judgment as (1) the Munich Incident, (2) the NY Settlement and (3) the London Settlement, and particularly involving the disclosure of identities of the women involved in internal grievance procedures. He said that he planned to share his impressions of the current culture at Linklaters LLP and the firm's struggle with women in the workplace in media interviews and to use the specific incidents as examples to demonstrate the firm's culture. Linklaters LLP contended that this was confidential information and sought an urgent injunction to restrain Mr Mellish from disclosing it.

The Judge found that while it might be possible for Mr Mellish to speak about the culture of the firm and not breach his confidentiality obligations, the inherently sensitive and confidential nature of the incidents, including the identities of the women involved and the internal grievance procedures conducted (about which nothing was in the public domain), was such that disclosure of this information would be in breach of Mr Mellish's contract of employment. This was the case notwithstanding the legitimate public interest that exists in the due performance by large firms such as Linklaters LLP of their social and moral duties towards their staff.

On 11 February 2019, Mr Mellish did not oppose the injunction in the return hearing, and a further return date had been set for 22 February 2019. On 18 February 2019, the High Court confirmed that Mr Mellish entered into a consent order, by way of a confidential Tomlin Order, with Linklaters LLP to bring the matter to an end by agreement between the parties. The terms include that Mr Mellish would not disclose the confidential information, as described in the confidential Tomlin Order, and destroy all confidential documents (procuring any third parties to do the same).

This case demonstrates that despite the heavy media focus on the #MeToo-type allegations and recent reporting of sensitive allegations of sexual misconduct and harassment in the workplace, as well as the genuine public interest in the reporting of such matters, employees and former employees may still find themselves legally prohibited from talking about such matters by contractual confidentiality obligations.

This is a complex area in which the interests of the complainants may weigh against public disclosure, even if this has the side effect of protecting the identities and reputations of the alleged perpetrators.

The issue of comparators in the EAT and Court of Appeal

Mr A Olalekan v Serco Ltd: UKEAT/0189/18/RN.
Asda Stores Ltd v Brierley & Others [2019] EWCA Civ 44

On 30 January 2019, the EAT confirmed that material differences between the Claimant and the actual comparators he sought to rely on meant they could not operate as statutory comparators in a race discrimination claim. The Tribunal had not erred in accepting the Respondent's evidence that it would have treated a hypothetical comparator in the same way, and that there were material differences between the Claimant and his actual comparators such that they were not appropriate comparators.

The Claimant was a Prison Custody Offer who was dismissed following an assault on a prisoner in 2016. The Claimant claimed unfair dismissal and race discrimination on the basis that white PCOs had not been dismissed for similar assaults. The Tribunal had found that, based on the evidence before it, the Respondent would have dismissed a hypothetical white PCO who had committed the same offence as the Claimant. The Claimant argued that the Tribunal should instead have constructed a hypothetical comparator based on information as to the actual white PCOs about whom he gave evidence.

The EAT concluded that there were material differences between the Claimant and the actual comparators he relied upon which severely limited their evidential value. Importantly, the dismissing officer's evidence, which stated that he would have dismissed a white prison custody officer in similar circumstances and that the actual comparators referred to by the Claimant were in a materially different position, was not challenged by the Claimant in cross-examination and this ultimately compromised his case.

The Employment Appeal Tribunal did hold that a difference in the decision-maker in a comparator's case will not necessarily mean that the comparator is unsuitable (though ultimately this did not assist the Claimant).

This case demonstrates the complexities surrounding the identification and formulation of comparators in discrimination claims, and shows that it is not necessary for an actual comparator to have been dealt with by the same decision maker as the Claimant to enable the Claimant to rely on that comparator to show less favourable treatment.

Are professional athletes employees or workers for their governing body and funders?

Varnish v British Cycling Federation t/a British Cycling (Employment Tribunal)

A professional cyclist was not an employee or a worker under the Employment Rights Act 1996 and the Equality Act 2010, an Employment Tribunal has ruled. In a highly fact-specific judgment, the world record holding athlete, Jess Varnish, was denied the statutory rights and protections that employment status (and, to a lesser extent, worker status) affords.

The cyclist brought claims of unfair dismissal, sex discrimination, victimisation and unlawful detriment for having made protected disclosures. In order to succeed in the unfair dismissal claim she had to demonstrate that she was an employee of British Cycling, UK Sport or, alternatively, both organisations together for the purposes of the Employment Rights Act 1996 ("ERA"). To succeed in the discrimination and victimisation claims she had to show that she was an employee or employed under a contract "to do work personally" for the purposes of the Equality Act 2010, and in order to succeed in the whistleblowing detriment claim she had to show that she was a "worker" for the purposes of ERA. A "worker" is defined as an employee, or someone who provides services under a contract whereby she undertakes to do or perform personally any work or services for another party, in circumstances where that other party is not a client or customer of a profession or business undertaking carried on by the individual.

The Claimant was found not to be an employee of British Cycling or UK Sport, primarily on the grounds that the only agreements in place between them were an 'Athlete Agreement' with British Cycling, and funding 'Terms and Conditions' with UK Sport. Both agreements explicitly stated that they were not a contract of employment, and they were both held to be an accurate reflection of the reality of the relationships. The Employment Judge explained that 'employee' status and 'worker' status could not be attributed because the Claimant received no remuneration from either organisation, did not personally perform work provided by the organisations, nor was she under an obligation to use or accept the entirety of the equipment, training support and other sports-related services provided to her (i.e. there was no mutuality of obligation). The Employment Judge rejected the notion that British Cycling and UK Sport could, together, be viewed as an employer. Judge Ross determined that the Claimant received training services and benefits from British Cycling, and, separately, a non-repayable financial grant from UK Sport, with little connection between the organisations. The categorisation of these relationships also led the Judge to conclude that there was no contract to do work personally for the purposes of the Equality Act 2010, nor was she a worker. All of Ms Varnish's claims therefore failed.

The maintenance of the status-quo of self-employment for professional athletes will be welcomed by sports governing bodies, who can continue to provide support and services to sportspeople without taking on the financial and legal liability of an employer. This, in turn, allows more athletes to benefit from the limited resources available. Nevertheless, all organisations holding engagements and funding arrangements with professional sportspeople would be well advised to review the reality of their relationships, ensure that they are accurately reflected in any documentation and consider, on an ongoing basis, the extent of control, type of remuneration, form of work and mutuality of obligation between the parties.