Another holiday season draws to a close and brings with it a return to “normality”. Goodbye sunning; hello running (for trains). Adios long lies; welcome back bags under the eyes. We’ll miss you mountain top; back to the laptop!!
As the majority of us return to our desks, recent reports of a case from France reminded us that some employment law cases can be viewed with more of a sideways glance and we thought looking at some of the more “page turning” cases of recent years would act as a gentle welcome back to the world of HR and employment law.
So before we say farewell to our travels… to France. In May of this year, Frederic Desnard, a manager at a perfume company, took the unusual step of raising a tribunal claim against his employer on the ground that his job was “too boring”, seeking no less than £280,000 in compensation. He claims that his job was so tedious that he suffered a “descent into hell” which he described as being like a burnout, but less interesting. He was made redundant after being on long term sickness absence. He claims the lack of stimulation at work was detrimental to his health and led to his absence, causing mental health issues and triggering an epileptic fit. There’s no sniff of any judgment in the case yet, so we will need to wait and see if Monsieur Desnard’s claim meets with the sweet smell of success. While this may seem like a far-fetched claim, in the UK, would such a failure (to provide work or provide meaningful work) constitute a potential breach of the implied term of trust and confidence, where the employer has acted deliberately?
Moving closer to home, in a Scottish tribunal in 2008, a teacher claimed unfair dismissal as well as disability discrimination. In pursuing his discrimination claim, he sought to rely on the qualifying condition of… baldness!! He claimed that he was bullied by students for being bald and had to avoid them in the corridors. He stated that this had a substantive effect on his ability to do his job. The tribunal disagreed, saying that baldness is not enough to constitute an impairment, with the judge noting that by similar logic having a ‘big nose’ could be argued to be a disability. It was not reported whether any claim under the TUPE regulations would have met with success.
Back in France, in 2009, contestants on the TV program ‘Temptation Island’ – similar to the UK’s ‘Love Island’ – claimed that they were employed workers. They argued they were being filmed 24 hours a day for 12 days and, as such, were entitled to overtime and other benefits, including holiday pay and damages for unfair dismissal when the program came to an end. Giving into temptation, the Tribunal found in their favour, stating that being on the show constituted a job and that ‘tempting a person of the opposite sex requires concentration and attention’. They were therefore entitled to overtime, holiday pay and various other payments. Temptation Island has since been cancelled for reasons “unrelated” to the ruling.
In an unusual case in 2001, a Jewish broker raised a tribunal claim against a London firm after being given a Nazi uniform to wear as a punishment for being late. The employer acknowledged this was inappropriate, but attempted to defend it on the basis that all employees were treated this way. It was a running joke that those late on Fridays had to wear a costume as a forfeit. In similar circumstances, a Welsh employee was given a Bo Peep costume and a Northern Irish Protestant given a Pope costume. Reports noted that this practice was subsequently stopped by the employer. Perhaps the most surprising element of this case is that no one thought to do so sooner! It is worthwhile remembering that under the Equality Act, a defence of “office banter” will never be successful. Whilst there may be questions over the level of compensation where a claimant has actively and voluntarily participated in discriminatory acts, it can never be grounds to avoid liability or justify such behaviour.
Finally, in 2011 an employee claimed discrimination on grounds of religion or belief on the basis this he was dismissed for his philosophical beliefs that the 9/11 and 7/7 terrorist attacks were carried out by the US and UK Governments as part of a ‘gigantic’ and ‘evil’ conspiracy. He was an intelligence analyst for South Yorkshire police authority, tasked with carrying out a risk assessment of the authority area. In his completed report, he ranked the risks to the area of internal terrorism as 100%, external terrorism as 1% and all other risks as zero. His report described protecting vulnerable people and tackling crime as ‘irrelevant’. This led to his dismissal on the basis that his views were ‘incompatible’ with his role. The tribunal found that his beliefs were not capable of protection as, while genuine and sincerely held, they failed to reach a minimum standard of cogency and coherence.
We sincerely hope that you have not returned to the office to have to deal with similar problems. If so, you might need your next holiday sooner than you thought!