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By Euan Smith, Associate

Mr Farnan, former International and National Marketing Director, is behind at half-time in his claims against Sunderland Association Football Club. The High Court (England and Wales) have recently dismissed his claim for wrongful dismissal finding that his breaches of confidentiality were serious enough to justify dismissal without notice.

As is the case in Scotland, wrongful dismissal claims can be brought in the ordinary civil courts, as well as in the Employment Tribunal. This has the advantage of escaping the cap on any award (£25,000) which would otherwise exist and the nature of the claims in both jurisdictions are the same. The courts are simply concerned with whether the terms of the contract have been breached and, unlike in unfair dismissal claims, they are not concerned with questions of reasonableness/fairness.

The findings of the Court were that Mr Farnan had committed a series of breaches of contract, of varying degrees, which mostly concerned breaches of confidence. He had, amongst other things, sent confidential bid documents to third parties for his own purpose of seeking alternative employment. This was done in spite of an express term in his service agreement prohibiting him from using confidential information for non-business purposes. Mr Farnan was also a statutory Director, which brought with it special fiduciary duties under the Companies Act (in terms of which an individual must subordinate their own interests to that of the Company), and there was reference to this and his status as a senior Employee. However, the focus of the Tribunal’s decision was ultimately on the alleged breaches, with reference to the express contractual term, and whether these justified summary dismissal. On the facts, it was held that the club were entirely justified in founding on Mr Farnan’s serious breaches by dismissing without notice.

It remains to be seen whether Mr Farnan will fare any better in the second half - the outstanding claim for unfair dismissal in the Employment Tribunal. Given what would appear to be the serious, and established, breaches Sunderland AFC are likely to face little difficulty in showing the dismissal was for a potentially fair reason (Mr Farnan’s conduct). However one crumb of comfort may be, although of less relevance to their own Judgement, that the court indicated they thought certain charges had been ‘trumped up’. Whilst this is unlikely (in itself) to render the dismissal unfair it may be that, if any other failures can be established, this could call into question the overall reasonableness of the dismissal. While Mr Farnan and his representatives reflect on their half-time oranges he will no doubt be getting fully appraised of his chances of a stirring second half comeback!

Is it lawful to Tell Your Staff to “speak English!”?

The answer, in spite of the recent Employment Appeal Tribunal decision of Kelly V Covance Laboratories Ltd, and rather unsurprisingly, is not very often!

The Russian born Claimant alleged that she had been subjected to direct discrimination and harassment on the grounds of race and national origin. This followed on from her being instructed not to speak Russian at the animal testing laboratory she worked in. The Employer had noted that she had, on occasion, left her workstation to speak on the telephone and were concerned she may be an animal rights infiltrator. The Employer also had a language policy which required English speaking managers to understand all conversations for security reasons.

It was found that the policy, of requiring English to be spoken at work, was not applied because of the Claimant’s race or national origin but rather because of her behaviour at work in the context of that particular working environment. Another part of the decision made clear that there was not direct discrimination because any other Employee of another nationality, speaking a language other than English, would have been treated in the same way. It was also found that the application of the policy, under the circumstances, did not constitute unlawful harassment related to nationality.

Interestingly, a claim for indirect discrimination could also have been made on the basis that an apparently neutral policy had a more detrimental impact on those of a non-English speaking race or nationality. However, a defence of justification exists to any such claim and it is therefore likely that any such claim would have failed for similar reasons provided that such policy could be shown to be a “proportionate means of achieving a legitimate aim”.

What is for certain is that this case should not be taken as allowing other Employers to create and impose a similar policy unless there is a very clear justification, unrelated to nationality or national origin. Contrast, in particular, the very recent case heard in the Aberdeen Employment Tribunal of Konieczna v Whitelink Seafoods. Ms Konieczna was an HR and payroll administrator at the Company and was of Polish Nationality.

The HR Manager of the Company introduced a rule that only English should be spoken despite the fact that the workplace had many foreign workers including those with limited English language skills. In one instance, Ms Konieczna was required to interview a job applicant who could only speak Polish. The applicant had to bring her friend with her to translate because the rule prevented Ms Konieczna from speaking to her in Polish - a situation she described as “comical”. Although disputed by the Employer, it was suggested that the Employees understood they were even required to adhere to the policy during break times. The Employer argued the rule was brought in for health and safety reasons but the Tribunal found that the rule was “more likely to create a greater health and safety risk than reduce it”. The Employer’s position was not assisted by the behaviour of one manager who would shout “English” at her aggressively as he walked by. Although the Tribunal did not find that Ms Konieczna was discriminated on grounds of her nationality the Tribunal found that she had been subjected to racial harassment and awarded her £5,942.

The legitimacy of an “English only” policy would appear to be limited to fairly exceptional circumstances such as those that arose in the Kelly case. That said such a policy may well be lawful in wider circumstances if it is applied sensibly and particularly if it takes account of legitimate exceptions, such as Employee break times or the requirement to ensure effective communication in our diverse workplaces.

Chambers UK 2018

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