Employers should take note of the handling of Nalbandian

The defaulting of David Nalbandian in the  final of  the Aegon Championships at the Queens Club was one of the big sporting headlines of the weekend. Having watched the footage of Nalbandian kicking the advertising hoarding into the shin of the line judge I think that they had little alternative but to default him and award the match to Marin Cilic. The rules are clear with our very own Tim Henman was defaulted for similar reasons early in his career when he hit a ball girl with a tennis ball while smashing it away in a fit of pique and Serena Williams being defaulted in the 2009 US Open semi-final due to her abusing a line judge.

The purpose of this rule is to act as a deterrent against players abusing umpires and line judges. Employers also have a similar obligation to protect their employees in that they owe them a duty of care, including to provide them with a tolerable working environment. The case of Horkulak v Cantor Fitzgerald made it clear that an employee could successfully claim constructive dismissal if their working environment had become intolerable. In the Horkulak case the claimant resigned due to the behaviour of his line manager who constantly used foul and abusive language but the principles of the Horkulak case could similarily apply if a third party, such as a customer, was behaving in an intimidatory or offensive way towards the employee and the employer took no steps to prevent it.

There is also specific legislation within the Equality Act to protect employees from 3^rd party harassment if it is on the grounds of one of the “protected characteristics” (e.g. race, sex, disability etc.) If a third party harasses an employees in such a way (e.g. racially abuses them) and the employer is aware of this harassment but fails to take steps to prevent further harassment then if there are a further two instances of harassment then the employee can make a claim against the employer.

Employers should therefore follow the example of the ATP and ensure that their employees are protected from the unacceptable actions of third parties as if they do not do so they could leave themselves open to claims of constructive dismissal or harassment - particularly if a rather irate tennis player comes onto the premises.  

Some happier tennis players!

Speaking Philosophically about the Bahrain Grand Prix

There has been a lot of coverage in the press about whether the Bahrain Grand Prix should go ahead this weekend due to the pro-democracy protests that are taking place in the country. This coverage has however made little mention of the decision of Williams Formula 1 team to dismiss a member of their catering staff because she refused to travel to Bahrain on moral grounds.

Very few facts relating to the dismissal of this employee are in the public domain but it is understood that Williams took the decision to dismiss her because she was contracted to work at all 20 races of the F1 season and by refusing to work at the Bahrain Grand Prix she had breached her contract. If the employee had only started working for Williams at the start of the F1 season she would not have been able to make a claim of unfair dismissal as she did not have the required length of service, but could she instead made a claim that she dismissal was an act of discrimination due to her philosophical beliefs?

Since 2003 employees have been entitled to protection from discrimination on the grounds of their philosophical beliefs. The meaning of “philosophical beliefs” has been the subject of scrutiny by the Employment Tribunal system. There have been some surprising results with various Tribunals finding that beliefs in climate change, anti-fox-hunting, and public service broadcasting amounted to philosophical beliefs that were entitled to protection under the Equality Act. It is not clear what the “moral grounds” were for the employee not to want to travel to Bahrain but if it was a belief in democracy and/or human rights then these are likely to be classed as philosophical beliefs that should be protected.  

So how could Williams argue that the decision to dismiss the employee was not discriminatory? The case of Grainger Plc & others v Nicholson (which found that a belief in climate change could be considered a philosophical belief) set out a list of principles which should be applied to decide if a belief should be subject to the protection of the law. This list included whether the belief held was genuinely held and also whether it had a certain level of certainty or cohesion. If the employee had worked at the Chinese Grand Prix which took place the previous weekend then the genuineness and cohesion of her beliefs could be challenged as she would be questioned why she worked in a country (China) which is governed by one party and has an appalling human rights record but did not feel that she could work in Bahrain. This would potentially create difficulties for the employee if she made a tribunal claim.

As I said above, the facts in the public domain regarding the decision to dismiss this employee are limited. Williams described her departure as being by mutual consent so it may be the case that some form of settlement was reached; however, the dismissal of this employee does highlight the need for businesses to be careful when dealing with an employee who objects to being asked to do something that they feel is immoral.