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Grattan’s solicitor, Mr Simon Rice-Birchall of Eversheds, argued in his submission to the Tribunal that the policy was not contractual, and therefore could not be a breach of contract. He cited the case Dryden v Greater Glasgow Health Board in which a Tribunal found that the right to smoke is not implicitly contractual, and that therefore bans on smoking did not have to be contractual.
As the Tribunal put it in paragraph 34 of their Decision:-
"Mr Rice-Birchall attempted to convince us that the policy was non contractual and that therefore there could be no breach and that if that was the case there could be no breach of contract which is a prerequisite for establishing unfair dismissal. He argued that the policy was a rule and that employers were free to alter and introduce new rules without restraint."
In my closing statement, I argued that
"If an employer threatened an employee with dismissal, if she refused his sexual advances, it would be a poor defence to argue that the demands for sex were non-contractual. If a practice is non-contractual, it implies that you cannot be disciplined or dismissed for refusing, not that you can be."
Also in my closing statement, referring to Article 8 of the Human Rights Act, I used another argument that apparently appealed to the Tribunal: -
"Unlike bans on smoking, ‘random’ Stop and Search cannot be a ‘works rule’, imposed because of the legal duty of employers to protect the health and safety of employees. Unlike smoking, privacy is a human right, and therefore of necessity implicitly contractual."
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