CREDIT MANAGEMENT JULY and August 2022

HR MATTERS
CONDUCT UNBECOMING
Was a test discriminatory and is redundancy
a fair reason for dismissal?
AUTHOR – Gareth Edwards
recent Employment
Appeal Tribunal (EAT)
decision demonstrates
a claimant's perception
alone is not enough to turn
A. conduct into harassment.
In the case of Ali v Heathrow Express
and Redline Assured Security Limited, Mr
Ali is a security guard at Heathrow Airport,
employed by Heathrow Express. Redline
Assured Security (Redline) is responsible
for carrying out security checks both
at the airport and at Heathrow Express
stations. Redline’s checks include creating
and leaving suspicious objects visible
to test how security officers respond to
them.
Ali complained after Redline carried out
an exercise involving a box, some electric
cabling, and a piece of paper with the
words ‘Allahu Akbar’ written in Arabic. Ali
was not involved in the exercise but was
included on an email reporting the results
of the test and containing images of the
bag and note.
Ali complained Redline's exercise
amounted to either direct discrimination
against him or harassment under the
Equality Act 2010. Both claims were
rejected by the Tribunal and Ali appealed
to the EAT over the Tribunal's findings on
the harassment claim only.
Under the Act, harassment occurs
when a person engages in unwanted
conduct relating to a relevant protected
characteristic – in this case, religion. The
conduct must have the 'purpose or effect'
of violating the other person's dignity
or creating an intimidating, hostile,
degrading, humiliating or offensive
environment.
Ali claimed Redline's conduct had
violated his dignity. To reach a decision on
whether conduct constitutes harassment
by effect, the Act requires the Tribunal
to take into account the claimant's
perception; other circumstances of the
case; and whether it is reasonable for the
conduct to have the effect complained of.
The EAT agreed with the Tribunal before
it, that it was not reasonable for Ali to
perceive Redline's conduct as harassment.
He should have understood Redline was
not seeking to associate the whole of
Islam with terrorism but was referring to
the context of recent incidents in which
that phrase had been used by terrorists.
Whilst Ali's perception of the incident was
relevant to his claim, it was only one of the
factors the Tribunal needed to consider to
reach a decision on whether the conduct
complained of amounted to harassment.
The claimant's perception of an incident
will always be of importance, but the
wider circumstances and reasonableness
of their position will also be considered.
Unfair dismissal after volunteering for redundancy
THE Employment Appeal Tribunal has
found that a Tribunal was wrong to
strike out a claim for unfair dismissal
because the claimant had volunteered for
redundancy.
In the case of White v HC-One Oval Ltd,
Ms White was a part-time receptionist at a
care home run by HC-One Oval Ltd. HC-
One proposed to reduce the number of
receptionist and administrative staff in the
care home and White was provisionally
selected for redundancy; she ultimately
volunteered for redundancy.
After the end of her employment
White lodged a claim for unfair dismissal
alleging that the redundancy process had
not been genuine. She relied on various
procedural failures and the fact that she
had lodged a grievance prior to the start
of the process. HC-One denied these
allegations.
The Employment Tribunal (ET) held
that her claim had no reasonable prospect
of success because she had volunteered
for redundancy, so her employer could
automatically establish the reason and
reasonableness of the dismissal. The ET
made no findings of fact on the matters in
dispute. White appealed on the basis that
the ET had erred in law in its decision.
Redundancy is a potentially fair reason
for dismissal, but the employer still needs
to follow a reasonable process to dismiss
fairly on the grounds of redundancy.
These steps include consultation
with employees, a fair selection pool,
locating alternative employment within
the company and offering alternatives
to compulsory redundancy, such as
voluntary redundancy. If an employee
agrees to take voluntary redundancy,
they are voluntarily dismissed by way of
redundancy – they have not resigned.
The EAT allowed White's appeal. The
ET's conclusion appeared to assume
that every voluntary redundancy is
automatically fair and the EAT determined
that this was incorrect as a matter of law.
In this case, there was a dispute between
the parties as to history predating the
dismissal and the ET heard no evidence
and made no findings regarding that
history; the EAT therefore remitted the
case to the Tribunal for consideration.
It is important for employers to
understand that even where an employee
volunteers for redundancy, they retain all
their usual employment rights and can
bring a claim for unfair dismissal.
Gareth Edwards is a partner in the
employment team at VWV.
Redundancy is a potentially fair reason for dismissal, but the employer still needs
to follow a reasonable process to dismiss fairly on the grounds of redundancy.
Brave | Curious | Resilient / www.cicm.com / July & August 2022 / PAGE 39