Four cases brought by practising Christians

The European Court of Human Rights has given judgment in four cases brought by practising Christians who argued that UK law had failed to protect their right to manifest their religion at work.

Ms Eweida worked for British Airways as a member of check-in staff, and Ms Chaplin as a geriatric nurse. Both were prohibited by their employers from  wearing crosses that were visible at work. Ms Ladele, a Registrar, and Mr McFarlane, a Relate counsellor complained about their dismissal for refusing to carry out certain duties which they considered would condone homosexuality.

In giving judgment, the Court confirmed that the freedom to manifest one’s religious belief, including in the workplace, is subject to limitations, but only those prescribed by law and necessary in a democratic society in the interests of public safety, for the protection of public order, health, or morals, or for the protection of the rights and freedoms of others.

In Ms Eweida’s case, the Court took into account her desire to manifest her religious belief and her employer’s wish to project a certain corporate image and said that  the employer’s aim was legitimate. However, the UK courts had accorded it too much weight when they came to decide if the restriction on her was proportionate. This meant that her right to manifest her religion had not been adequately protected. The Court took into account  that there was no evidence that such items as turbans and hijabs, worn by other employees, had any negative impact on British Airways’ brand.  However, in Ms Chaplin’s case, the Court said that the reason for asking her to remove the cross, namely the protection of health and safety on a hospital ward, was inherently more important that the protection of a corporate image and so her right to manifest her religious belief had not been infringed.

In the cases of Ms Ladele and Mr McFarlane, the Court decided that an acceptable balance had been struck between their right to manifest their Christian beliefs and their employers’ policies of non-discrimination against service-users on grounds of sexual orientation.

Case reference: Eweida and others v United Kingdom

Definition of disability is considered by the EAT

The Employment Appeal Tribunal has ruled that a life-long condition that makes a person more prone to infections may not amount to a disability.

The individual, in this case, had been diagnosed with Selective IgA Deficiency, a life-long condition that made her more prone to infections. Her condition was controlled by medication. In the past the condition had caused a substantial adverse effect on her ability to carry out normal day to day activities.

She brought a claim for disability discrimination after a job offer she had received was withdrawn because one of her referees referred to her condition.

The question the tribunal had to decide was whether she was a disabled person within the meaning of the Equality Act 2010, that is whether she had a physical or mental impairment that had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.

The employer agreed that she had a physical impairment so the question was whether that impairment had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. The tribunal ruled that it did.

On appeal the Employment Appeal Tribunal said that the tribunal had not asked itself the right question. This should have been, whether susceptibility to increased frequency of infections would itself have a substantial adverse effect on the Claimant’s ability to carry out normal day-to-day activities, not whether the infections would have that effect when they occurred. The evidence, it said, did not support the conclusions the Tribunal had reached.

Allowing the appeal, the Employment Appeal Tribunal referred the matter to a fresh tribunal to decide whether she was a disabled person at the material time.

Case reference: Sussex Partnership NHS Foundation Trust v Norris

Employee was unfairly dismissed despite breach of safety rules

The Employment Appeal Tribunal has upheld an employment tribunal’s decision that a dismissal for misconduct in failing to observe safety rules was unfair.

The employee, in this case, had been employed as a track worker for 23 years when he was spotted, not wearing a hard hat, beside a track with a group of workers. He had previously been on long term sick leave and had just returned to work. He needed a Track Safety Certificate (PTS) and some retraining and because he had not done that, he was asked to work as a driver for a group of track workers.

After carrying out an investigation the employer made three charges against him which amounted to breaches of safety rules: (1) that he did not have a hard hat when in the proximity of the track; (2) that he did not have a valid PTS certificate while he was in that vicinity; and (3) that he had failed to set up a safe system of work as required by the rules because he was a lone worker, and not part of the group.

These allegations were upheld at a disciplinary hearing and the employee was dismissed. The employee appealed arguing that the sanction was too severe but was unsuccessful and then brought a claim for unfair dismissal.

The tribunal found that the employer had carried out a reasonable investigation and followed a reasonable procedure. However, the tribunal found that the decision to dismiss fell outside the range of reasonable management responses because:

1.    the employee was not aware that his PTS certificate had been suspended until the investigation yet that was given as one of the principal reasons for his dismissal;

2.    the employee was not standing near a fully operational line and the risks were minimal;

3.    the tribunal found it difficult to see how he could be classified as a lone worker, since he was working as a driver for the team;

4.    there had been a difference between the treatment of the employee and the supervisor of the team who should have told the employee to return to his van and reported him. They were both in breach of the safety rules, but only one of them was dismissed;

5.    the employee had an unblemished record of 23 years’ service and the dismissal was for a first offence.

Accordingly, the tribunal ruled that the dismissal was unfair.

The employer unsuccessfully appealed arguing that the decision of the tribunal was perverse and that it had erred in law by substituting its view for the employer’s.  The Employment Appeal Tribunal dismissed that appeal, finding that the tribunal had in mind the right tests and was entitled to reach the conclusion that it had about unfair dismissal.

However the Tribunal had also applied a 50% reduction to the award for the employee’s contributory fault and had not given any reasons for that. This finding was remitted to the Tribunal to make a fresh decision and give reasons for it.

Case reference: Network Rail Infrastructure Limited v Mockler

Changes to PAYE reporting come into effect from April 2013

From April 2013 employers will be required to report PAYE in real time.

Under the present PAYE system, employers are required to tell HMRC what deductions they have made from employees’ pay after the end of the tax year. From April 2013 employers will, however, be required to report PAYE in real time, that is every time a payment is made. The new system is known as Real Time Information (RTI).

Employers will also be required to use payroll software to send the details electronically to HMRC and send the details as part of their normal payroll process unless they have nine or less employees when they will have the option to use HMRC’s basic PAYE Tools package to send their information instead.

Most employers will be required to begin reporting PAYE in real time from April 2013, with all being required to do so by October 2013.

HMRC are advising businesses to start preparing for RTI now by talking to their payroll software provider or payroll service provider about how they are developing appropriate payroll software. HMRC also advises employers to check that information about their employees is accurate and up to date, that is that each employee’s surname, forename, gender, address, date of birth and National Insurance Number is correct and in the right format.

Carers were employees despite their contracts stating otherwise

The EAT has held that a succession of assignments can form a contract of employment if there is sufficient mutuality of obligation and the fact that the arrangement was said to be terminable at will was irrelevant.

The individual, in this case, worked under a succession of individual assignments for over 5 years. He was never given a written contract of employment or any contractual document or statement of terms. He was told that there was no obligation on him to accept work and no obligation on the employer to provide work. He was told that he was a worker rather than an employee, although a handbook with which he was provided stated that once he had accepted a job, a ‘verbal contract’ would be formed under which he was expected to complete the job within a given deadline and according to certain specifications.

After being removed from the employer’s panel he brought a claim for unfair dismissal. He argued that each individual assignment was a contract of employment. The employer disputed this but conceded that, if it was right, the individual would have sufficient continuity of service to bring a claim for unfair dismissal.

The employer argued that the individual was not an employee, as there was no mutuality of obligation within, or between, assignments and at first instance an employment tribunal agreed.

On appeal the Employment Appeal Tribunal reversing the decision, said that there was sufficient mutuality of obligation for an employment relationship to exist, and held that there had been a series of successive contracts in place.  This was because while carrying out an assignment there was an agreement to undertake work in return for payment. The fact that the assignment could be brought to an end, it said, did not mean that there was no contract in existence while the assignment was continuing.

Case reference: Drake v Ipsos Mori UK Limited

The duty to make reasonable adjustments may continue when an employee goes on sick leave

The Employment Appeal Tribunal has held that an obligation to make reasonable adjustments does not necessarily end when an employee goes on sick leave. The point made a difference to whether the employee had presented his claim to the Tribunal in time.

The employee in this case brought a claim for disability discrimination following a period of sick leave. He argued that his employer failed to make reasonable adjustments to take into account his disability and that, if  the employer had made reasonable adjustments, he would not have gone on sick leave in the first place, or  indeed later adjustments would have enabled him to return to work.

At first instance the judge said that any duty to make reasonable adjustments ended when he went off sick because he was “simply unable to be at work”.

The employee appealed and won.

The Employment Appeal Tribunal said that, in some cases, adjustments while on sick leave would not make any difference to the employee.  This tribunal, it said, should have decided whether it was the very failure to make the adjustments which kept the employee away from work.  

Case reference: Olenloa v North West London Hospitals NHS Trust

Planning a competing business is not necessarily gross misconduct

Ruling confirms that an employee who takes preliminary steps towards setting up in competition with his employer is not necessarily guilty of gross misconduct.

The employees in this case had put together a detailed plan for a business competing with their employer, making use of knowledge and expertise acquired in the course of their employment.

Upon learning of their plans the employer held disciplinary hearings and then summarily dismissed them for gross misconduct. The dismissal letters stated that they were dismissed for planning to set up in competition, using company resources in connection with their business plans and breaching their obligation of trust and confidence. In response they brought claims for unfair dismissal.

They lost their unfair dismissal claims and appealed.

On appeal, the Employment Appeal Tribunal, said that it is not in itself gross misconduct for an employee to make preparations for a future business. Nor is every piece of an employer’s information which he regards as important or confidential, and which the employee is aware of, necessarily confidential information as a matter of law.

The matter has been remitted to the original tribunal who will have to decide whether the kind of information these employees used for their own purposes could, as a matter of law, be regarded as confidential to the employer or whether it was simply the kind of knowledge and expertise that employees like them would have accumulated .

Case reference: Khan v Landsker Child Care Limited

‘Self-employed’ can be employees

The Employment Appeal Tribunal has ruled that a lap dancer described as being self-employed and working intermittently was an employee.

This case concerned a lap dancer who worked under various contractual documents several of which she had not seen. The relationship between her and the lap dancing club was generally understood in the industry to be one of self-employment. She was required to work two Mondays and two Sundays per month as directed by a rota and was required to attend weekly meetings. She was paid by the club by way of ‘Heavenly Money’ vouchers (a money substitute) that she received from clients and redeemed from the Club subject to agreed deductions. She could not take extended holiday and, if she was absent for more than a month, she had to re-audition.

After being dismissed by the club for misconduct she presented a claim for unfair dismissal. In order to succeed in that claim it was necessary for her to establish that she was an ‘employee’ of the Club and had been continuously employed by them for at least a year.

The Employment Appeal Tribunal, taking into account the specific facts of the case held that she was an employee. This needed (1) a “money’s worth for work’s worth” bargain, (2) control by the “employer” and (3) the requirement for her to do the work personally.

It was enough for (1) that she had to attend the Club on the rostered days in exchange for the opportunity of doing work for which remuneration would be available. It did not matter that she was not guaranteed payment or that she was paid indirectly through vouchers from customers. The Appeal Tribunal said that it could be enough for an employment contract that the employee agreed to work to gain experience or to enhance her reputation or for accommodation or payment of tuition fees to a university.

The requirements of control and personal service were found satisfied.

The Employment Appeal Tribunal also decided that the employment contract continued between engagements. This was because the dancer had to turn up for the weekly meetings and was subject to sanctions if she did not. She was also expected to attend for the Monday and Saturday dancing engagements listed for her twice a month.

For periods in between of less than a week, legislation provided for continuity of employment. For her comparatively few longer absences of two to six weeks, the Appeal Tribunal decided on the facts that there was an umbrella contract and her employment status continued while she was away.

The Employment Appeal Tribunal remitted the case to the employment tribunal to consider her claim for unfair dismissal and a tax-related illegality defence raised by the club.

Reference: Quashie v Stringfellows Restaurants Ltd

Planning for the Queen’s Diamond Jubilee

Acas has published guidance for employers with regards to the extra bank holiday in June for the Queen’s diamond jubilee.

To mark the Queen’s Diamond Jubilee there will be an extra bank holiday on Tuesday 5 June. The last bank holiday in May has also been moved to Monday 4 June and in addition most schools have moved their half-term holiday to that week.

Acas predicts that employers may find themselves having to juggle extra leave requests and recommends that employers plan ahead to avoid last minute leave request clashes or short-term absences. It is worth noting that, an employer has the right to refuse a request for statutory minimum leave under the Working Time Regulations, as long as it gives notice which is at least as long as the holiday requested.

Acas stresses the importance of being as fair and consistent as possible by having a policy on how to manage time off and leave requests so that employees can join in the celebrations and employers can maintain morale at work.

Employers should also avoid discriminating against their staff when prioritising requests for time off. A holiday policy that gives priority to parents with young children so that they can spend the half-term holiday with them, for example, could discriminate against other staff on grounds of their age or sexual orientation. However, employers should not overlook entitlements to parental leave and time off for dependents.

Acas has produced the following specific guidance:

• There is no statutory right to bank/ public holidays, so the announcement of an extra bank holiday does not increase any entitlement to holiday under the Working Time Regulations.

• Whether an employee will benefit from the additional bank holiday will depend on the wording of their contract. For example, a contract which entitles a worker to, 20 days annual leave in addition to all statutory, bank and public holidays, would potentially give the worker an extra day’s paid holiday. But if public holidays are listed by name, in a contract, a worker may not be automatically entitled to the extra public holiday.

• There is no legal right to be paid any extra for working a bank holiday. This will depend on the terms of the employment contract.

Here is the ACAS guidance.

Breach of non-solicitation clause is hard to prove

The High Court has ruled that it is for an employer to show that a former employee has solicited former clients in breach of a non-solicitation clause.

The claimant company, in this case, took over the business of another company. Following the takeover a number of the employees left and joined a rival business, and in due course a large number of the company’s clients followed them. This led to the claimant trying to enforce non-solicitation clauses contained in the employees’ contracts of employment.

The Court, in giving judgment, said that a non solicitation clause means that: “ex-employees must not directly or indirectly request, persuade or encourage clients of their former employer to transfer their business to their new employer”. The question the Court had to decide was whether the company was able to demonstrate that one or more of the employees had in fact asked, persuaded or encouraged the clients to move with them.

There was no first hand evidence showing that the employees had requested, persuaded or encouraged the clients to follow them. The Court said that fact that a large number of clients had tried to follow the employees did not in itself prove that they had been solicited. This, the Court said, could simply have been out of a sense of loyalty to the employees. In fact the Court found that the new employer had taken considerable care to ensure the employees recognised their obligations under their restrictive covenants and complied with them.

Accordingly, the Court held that there was insufficient evidence to show breach of the non-solicitation clauses. It did not follow that the move of a large number of clients could never show breach but it would be up to the employer to prove the solicitation. In this case they were not able to do so in spite of cross-examining their former clients with all the awkwardness this involved.

Case reference: Towry EJ Ltd v Barry Bennett and others

Employers should be wary of bringing claims for breach of non-solicitation clauses unless there is clear evidence that solicitation has taken place. Non-dealing restrictions may be easier to prove.