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Employment Law Round Up: Recent EAT Decisions

Tribunal's rejection of religious harassment claim arising from Pope comment was "unarguably correct"

The EAT has held that an employment tribunal had been right to reject a Catholic sub-editor's religious harassment claim, which arose when his line manager shouted a comment across the newsroom about the Pope that contained an expletive. The tribunal was plainly right to find that, to the extent that the sub-editor felt his dignity to be violated or that an adverse environment had been created for harassment purposes, that was not a reasonable reaction to his manager's comment.

The manager's comment was not ill-intentioned or anti-Catholic. In a perfect world he would not have used an expletive in a sentence about the Pope, as this might be "taken as disrespectful by a pious Catholic of tender sensibilities". However, people are not perfect and sometimes use bad language thoughtlessly. A reasonable person in the sub-editor's position would have understood that and made allowances for it. (Heafield v Times Newspaper Limited UKEAT/1305/12.)

Judicial proceedings immunity prevented reliance on witness statement in constructive dismissal claim

The EAT has held that the contents of a witness statement and the manner in which it was obtained were covered by judicial proceedings immunity.

It was therefore not open to a claimant to allege that a statement given in existing legal proceedings and the way in which it was procured by the employer amounted to a repudiatory breach of contract on which she could base a claim for constructive dismissal. A tribunal had therefore been right to strike out her constructive dismissal claim. (Singh v Reading Borough Council and another UKEAT/0540/12.)

Exempting disabled employee from absence management policy was not a reasonable adjustment

The EAT has upheld a tribunal decision rejecting an employee's claim for unfair dismissal and failure to make reasonable adjustments for a disability. On the question of unfair dismissal, the employee had a long history of intermittent absence followed by long-term absence, and the employer was not unreasonable in dismissing the employee, in spite of a recommendation from occupational health that a phased return to work be undertaken.

The EAT ruled that, for the purposes of a reasonable adjustments claim, the employer could have "imputed knowledge" of the employee's disability even if the wrong diagnosis had been attached to it at the time. It went on to uphold the tribunal's decision that it was not a reasonable adjustment for the employer to exempt the employee from compliance with its short-term absence policy. (Jennings v Bart's and the London NHS Trust UKEAT/0056/12.)

Whistleblowing: disclosure after employment ends can be protected

The EAT has decided that a disclosure of information after employment ends can be a protected disclosure under the whistleblowing provisions of the Employment Rights Act 1996. (Onyango v Berkeley (t/a Berkeley Solicitors) UKEAT/0407/12.)

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