At the interface between law and human resource management, two recent issues have created a degree of interest. In one case, as a result of a recent court decision (Diacono v Deutsche Bank, Civil Court), the employer was prevented, by means of a decree allowing an application for a prohibitory injunction, from terminating the employment of an employee who was to be made redundant.

In the other, a public controversy arose between the authorities governing Church schools and, principally, the Union of Teachers concerning the idea that there was to be a restriction on eligibility to become a head of a (Catholic) Church school in the sense that this would be only open to Catholics.

The latter case is interesting. The Constitution and general law, and there is specific reference to the matter in employment law, prohibit discrimination on, among other things, the basis of religious conviction and, presumably, the lack thereof.

The definition of discrimination, however, inserts a note of what mightbe called subjectivity into what has to be an exercise objectively carried out,by rendering the definition subservient, to a degree, to an examination of that which is, or is not, acceptable in ademocratic society.

The question arises, consequently: is the proposed distinction “discriminatory within the proper definition” or is restricting headship of (or employment, by, for that matter) a religious school to practitioners of the religion concerned acceptable in a democratic society?

To my mind, and I am aware that this is probably somewhat controversial, I believe that the distinction is unacceptable. This is not to say that there is no underlying merit in the argument in favour but, on a balance between freedom of religion (including freedom not to profess any religion) and freedom of an employer to impose objective standards, my vote comes down on the side of the more fundamental freedom.

It is clear that any employee - especially an employee in a senior position - must espouse the beliefs of the organisation concerned but external attributes in this regard are not necessarily conclusive.

In the case in point, in any case, what makes an individual a ‘practising’ Catholic (or Hindu or Moslem orwhatever, the religion is not germane to the issue)?

Does the individual, in this specific instance, have to attach a baptismal certificate to the job application?

Does the individual have to make a declaration of adherence to the Catholic faith? And, even if these external formalities are ticked off in the list of requirements, what is there to guarantee that the individual, in fact and in real life, is a ‘good Catholic’ (whatever that may be)?

I would have preferred the proposal to take the form of a generic exhortation that the chosen individual would be expected to support the school in its pastoral and social mission and to espouse values that are concomitant with this mission, rather than rely on what may very well be hollow statements of belief.

The Deutsche Bank case is even more interesting and left unaddressed will lead to trends arising within the practice of employment law that are diametrically opposed to established trends.

In this case, the worker involved had been informed that her employment was to be terminated on the basis of redundancy. In common parlance, she was on notice of termination, serving same out and working towards a date of termination.

She applied to the Civil Court for an injunction to stop the employer from terminating her job, pleading that this was not a genuine case of redundancy and, from what one can glean from the judgment, that her rights would be irremediably prejudiced.

The executive and the legislature need to address this crisis of confidence in the Industrial Tribunal

The court, relying on a number of facts and previous judgments, also awards by the Industrial Tribunal, found in favour of the employee, prohibiting the bank from terminating her employment.

This has now placed the parties in an interesting situation but that is for them to sort out.

This case, which follows, to a degree, a previous case involving HSBC, where disciplinary proceedings were halted by the court on the basis of a plea that there was an element of discrimination on grounds of union activity in the bank’s proposed course of action, is dangerous because it will give employers cause to opt for immediate termination of employment without discussion and, if the thinking is taken to its logical conclusion, without prior disciplinary proceedings.

A prohibitory injunction is useless if the action has already been taken.

In the Deutsche Bank case, disciplinary issues did not come into the picture because termination on the basis of redundancy is a ‘no fault on the part of the employee’ termination.

However, employment law practitioners have all had the experience of employees faced with looming termination querying whether a prohibitory injunction would not be a good idea.

A few reminders of the basics of employment law would be appropriate at this juncture.

It is the Industrial Tribunal, exclusively, which has jurisdiction to give an ex post facto remedy to a (former) employee who alleges that termination of employment was not in compliance with the law.

In order for termination to be compliant, it must be for a good and sufficient cause (or on the basis of redundancy) and, according to the Court of Appeal, followed in this almost always by the Industrial Tribunal, preceded by a disciplinary process that gives the right to the employee to be heard.

In redundancy cases, no process is involved, though the idea is gaining ground that an employee in danger of redundancy is to be engaged in discussion on the matter, quite apart from the fact that collective redundancies require a priori consultation.

In an issue a couple of years ago involving Go plc (the identity of the employee should be kept confidential for various, irrelevant, reasons), the court, faced with an application for an injunction stopping disciplinary proceedings, declined to do so, inter alia, on the basis of the fact that any eventual termination of employment would be addressed, in its exclusive jurisdiction, by the Industrial Tribunal.

It remains relatively clear that termination of employment on the basis of disciplinary or other employee-fault-related issues are not subject to the type of injunction the Civil Court issued in the Deutsche Bank case.

However, it is becoming less and less clear that this is a position that can safely be relied upon.

There is nothing to stop an employee facing disciplinary or similar issues from requesting the Civil Court to intervene, as we have already seen, and, in the absence of statutory clarity, the possibility remains that an injunction might be issued.

A disquieting aspect of the Deutsche Bank case, however, is not a procedural one: the Court appears to have taken on board the worker’s argument that procedures before the Industrial Tribunal will not necessarily result in appropriate protection of the employee’s rights.

This is, in fact, a conclusion that must be drawn from the issuance of the injunction because there would have been no need for it if an effective remedy was available.

It is therefore the responsibility ofthe other two branches of State – theexecutive and the legislature – toaddress this crisis of confidence in the Industrial Tribunal.

If it is perceived that it is not an effective means of protection of employees’ rights, is it not time something was done about this?

Andrew Borg Cardona is a lawyer specialising in commercial and labour laws.