May you claim in interesting times

The number of applications made to employment tribunals remains low. Against that background one might have thought that the tribunals would particularly value the work brought in by their most enthusiastic and regular customers. That was not true
in Ms Harrold's case.

In Nursing and Midwifery Council v Harrold [2016] EWHC 1078 (QB), the judge (the preternaturally patient Mrs Justice Laing) was faced with a party who had commenced
15 claims against her employer, mostly in the tribunal. The council had applied for a general civil restraint order (GCRO). Civil Procedure Rules Practice (CPR) Direction 3C sets out the circumstances in which the court has the power to make a civil restraint order (CRO). There are a number of different 'flavours' of CRO but they each impose a requirement on a litigant before they may take steps in litigation.

One flavour is the GCRO, which may be triggered where a party 'persists in issuing claims or making applications which are totally without merit' (TWM) where a more limited CRO would not be sufficient or appropriate.
A judge's permission is then required before the party can issue any claim in the county
or High Court or make any application (save for applying to amend or discharge the GCRO
or for permission to appeal its imposition).

The CPR does not, of course, apply to employment tribunals. However, in an earlier judgment in the same litigation, Mr Justice Hamblen decided that the court could exercise its inherent power to make GCROs in respect of tribunal proceedings. Having carefully considered the history of the 15 claims, Laing J decided to make the GCRO. She adopted as her touchstone a paraphrase of TWM - 'bound to fail' - without deciding that that was the right test as a matter of law. She concluded with a 'practical suggestion': in 'weak claims', tribunals should, as a matter of course, decide whether the claim was TWM.

The suggestion might appear practical but to make that finding would have the unintended consequence of inviting a costs application by the respondent while simultaneously requiring the employment judge to recuse themselves from considering it.

There have also been two significant recent cases on discrimination because of religious or other belief. The first, Pendleton v Derbyshire County Council and another UKEAT/0238, concerned a teacher who was dismissed when she refused to leave her husband. Her spouse was headmaster of another school and was convicted of making indecent images of children and voyeurism. The employer's policy was to dismiss those who chose not to end a relationship with someone who had committed that offence.

The teacher refused to leave her husband, arguing that she had, at her marriage, made a vow to God. That vow was 'sacrosanct' and an 'expression of her religion'. She successfully argued that
the policy was indirectly discriminatory (contrary to section 19 of the Equality Act 2010). The policy was a 'provision, criterion, or practice' which 'particularly disadvantaged'
those who shared the claimant's religious belief.

While it disadvantaged any partner of someone with a relevant conviction, those holding the claimant's religious belief had the additional disadvantage of having to act in breach of a commitment given
to God. The Employment Appeal Tribunal (EAT) found that the employer had failed to lead the evidence necessary to make out
a justification defence.

It is not just religious beliefs that are protected; 'philosophical beliefs' are also covered. In issue in Harron v Chief Constable of Dorset Police UKEAT/0234/15 was a belief in 'the proper and efficient use of public money in the public sector'. Laudable though that belief might be, the tribunal concluded that it was not a qualifying philosophical belief
for the purposes of the Act.

The tribunal applied the
five criteria set out by the EAT
in Grainger plc v Nicholson UKEAT/0219/09. It decided that the belief was genuinely held and that it was worthy of respect in a democratic society. However, it failed to meet three criteria:

• It was not a belief, but an opinion or viewpoint;

• It was not a belief about a weighty and substantial part of human life and behaviour; and

• It did not attain the necessary level of cogency, seriousness, cohesion, and importance.

The claimant argued that
the requirement that a belief
be philosophical was an inappropriate narrowing of
the protection required by the European Convention. The EAT decided, in effect, that a belief was 'philosophical' if it met the Grainger test and that that test was itself compatible with
the convention. While the
EAT thought the tribunal's conclusion was potentially open to it, it felt that the decision was not supported by sufficient reasons and remitted it.

By the time we next meet
the EU Referendum will have happened and proposals
for a new Employment and Discrimination Court to
replace the tribunal may
have crystallised. We live,
as the curse would have it,
in interesting times.

Sean Jones QC is a barrister practising from 11KBW @seanjonesqc