Employment law

Discrimination and sexual orientationPearce v Governing Body of Mayfield Secondary School (2001) IRLR 669In a widely publicised decision, the Court of Appeal upheld a finding that a lesbian teacher who was subjected to gender-specific homophobic verbal abuse by pupils, was not discriminated against on the grounds of sex.This was because she was not treated less favourably than a male teacher subjected to homophobic abuse would have been treated.

The Sex Discrimination Act 1975 does not deal with discrimination on the ground of sexual orientation, and the choice of language used by the pupils did not bring the case within the ambit of the Act (Smith v Gardner Merchant Ltd (1998) IRLR 510).

Even if a different interpretation could now be given to the Sex Discrimination Act because the Human Rights Act is in force, the latter statute does not operate retrospectively so as to allow the Sex Discrimination Act to be given a different meaning than it was by a lower court in a decision before the Human Rights Act came into force.

Ill health dismissalsEdwards v Governors of Hanson School (2001) IRLR 733Here, the Employment Appeal Tribunal (EAT) declined to agree with its decision in the earlier case of London Fire & Civil Defence Authority v Betty (1994) IRLR 384, if that case was regarded as authority for the proposition than an employer's treatment of an employee which causes ill health, which in turn causes incapability which is treated as the reason for dismissal, can never of itself make the dismissal unfair.

The EAT has now pointed out that, for example, if an employer has acted maliciously in causing an employee incapacitating ill health which results in dismissal, there is no reason why that should not lead to a finding of unfair dismissal.

Similarly, the fact that the incapability may have been caused by the employer may be relevant to consideration of the amount of compensation to be awarded.

The words 'just and equitable' in the legislation enable a tribunal to take full account of the conduct of the employer and the employee, provided that the award remains compensation of the employee rather than punishment of the employer.

TUPETransport & General Workers Union v James McKinnon Jr (Haulage) Ltd and others (2001) IRLR 597The EAT sitting in Edinburgh ruled that liability under regulation 11 of the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) to pay compensation in respect of a transferor's alleged failure to comply with its obligation to consult its employees did not transfer to the transferees.

Any obligation to pay compensation under regulation 11 which was a responsibility of the transferring employer does not transfer to the transferee.

There is a distinction between a liability arising under TUPE itself, such as the failure to comply with the information and consultation duty imposed by regulation 10, and a general liability arising out of or under a contract of employment which transfers in accordance with regulation 5(2).The earlier case of Kerry Foods Ltd v Creber (2000) IRLR 10, took too broad a view of what could be said to be arising out of a contract of employment.

The EAT said that, if the employer intending to transfer all or part of his business knows that any compensation payable by reason of his failure to consult his own employees in advance of such a transfer will be transferred to the transferee, there will be no incentive to comply with the consultation obligation.This is an understandable policy-based approach, but it leaves us with conflicting decisions and further uncertainty about TUPE which needs to be resolved at a higher level.

By Martin Edwards, Mace & Jones, Liverpool