Number 5 22 July 2014

Welcome
WELCOME to Conference Chambers' newsletter. IT has
been a busy time since No. 4. Readers who have access to the
Summer 2014 edition of The Clapham Omnibus, which is the
journal of the South London Law Society, would have read
'Rights Preserved Despite Illegality' by Ryan on p.16, regard!
ing the case of Wijesundera v Heathrow 3PL Logistics Ltd &
Anor. Also, Ryan was one of the speakers at the hugely suc!
cessful Diversity & Inclusion Conference 2014 in Liverpool. The
event organiser, Mr Garth Dallas and his team, should be
proud of its contribution to the success of the International
Festival for Business 2014 of which the Conference was part
"#IFB2014#.

@2014 Conference Chambers 1
DISCIPLINARY
APPEALS
IT IS COMMON to have ex-
pressed in an organisation's dis-
ciplinary procedure that were an
employee to appeal against a
sanction the Appeal Officer
could uphold the original deci-
sion (sanction); reduce the sanc-
tion (for example, from dismissal
to - first or final - written warning
or from - first or final - written to
oral warning etc.) or allow the
appeal in its entirety (i.e. no sanc-
tion at all). That is fine and is well
understood, if for no other rea-
son than the procedure says so.
However, what happens where
the procedure is silent on the
point? Also, with such silence,
does that entitle the employer,
contrary to what is usually ex-
pressed, a impose a 'higher'
sanction than the one appealed
against? For an answer we may
seek assistance from the Court of
Appeal decision in McMillan v
Airedale NHS Foundation Trust
[2014] EWCA Civ 1031
McMillan v Airedale
FOLLOWING a disciplinary hear-
ing for and a finding of miscon-
duct, M was issued with a final
written warning. M appealed un-
successfully. As I have already
stated, it is common for that to
be the end of the matter with the
employee in question having the
said written warning on file.
CONFERENCE CHAMBERS
NEWSLETTER
Number 5 22 July 2014
Evolution of Equalities
IN RECENT WEEKS there have been many dis!
cussions over the potential expansion of the pro!
tected characteristics under the Equality Act 2010 "EA
2010#. Some would have heard about the Speaker of the
House of Commons, Mr John Bercow MP, reported as
advocating, 'insulting someone about their height is as
unacceptable as racism or homophobia' or the question
raised 'Are regional accents discriminated against?' "The
Independent Online, 6.7.14 and 11.7.14 respectively#. Ar!
guably, the most controversial of recent days has been
the legal advice given by Mr Niilo Jaaskinen, the advo!
cate general to the European Court of Justice, for the
Danish case of Karsten Kalto" v Bi#und Kommune, which
will undoubtedly have repercussions in the UK.
Karsten Kalto"
K, a childminder and reported to weigh around 25
stones, claimed he was sacked by his employer because
he was overweight. The question is, was the employer's
alleged act unlawful? A number of key questions were
put on which advice had been sought, which space does
not allow us to deal with in detail, but a full article will
be written by Ryan on this important case in due course.
In general, however, one of the questions was 'Can obe!
sity be deemed to be a handicap covered by the protec!
tion provided for in the Council Directive ... establish!
ing a general framework for equal treatment in employ!
ment and occupation?' Answer? It would seem that 'ex!
treme, severe or morbid obesity' could amount to a dis!
ability and, therefore, subject to the EA 2010. According
to Mr Jaaskinen, 'the origin of the disability is
irrelevant.' In other words, an argument that one's
overweight was self!inicted is no defence to such an
alleged act of discrimination. Watch this space!
Conference Chambers
272 Field End Road
Middlesex HA4 9NA
Tel: 020 8582 0500 Fax: 0800 2425323
carole@conferencechambers.com
www.ConferenceChambers.com
@2014 Conference Chambers 2
What goes up may...
HOWEVER, in this case, having
upheld the original penalty, the
employer then sought to recon-
vene in order to consider the ap-
propriate sanction. Faced with
this dilemma M purported to
'withdraw her appeal.' To be
clear. M appealed against the
sanction and, having been un-
successful, faced that sanction,
potentially, being increased
(leading possibly to her dis-
missal). M sought an injunction,
preventing the employer from
reconvening to consider the 'ap-
propriate' penalty.
Questions to consider
THE HIGH COURT considered
two questions: whether the em-
ployer was permitted to impose
a more severe sanction (than the
final written warning) and, the
appeal having purportedly been
withdrawn, whether the employ-
er could consider a sanction in
accordance with M's contract of
employment. The Court found
against the employer on both
questions and granted M the in-
junction. The employer appealed
to the Court of Appeal.
Court of Appeal
DISMISSING the employer's ap-
peal, the CA held, amongst other
things, that the sanction against
M could not be increased on ap-
peal. Also, as there is normally
NO right of appeal against an
Appeal Officer's decision, an
employee could be left in a posi-
tion where s/he is unable to ap-
peal or precluded from appeal-
ing a harsher sanction imposed
not at first instance (where there
is a right of appeal) but on ap-
peal (where there is none).