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

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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

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Ministers of religion may be employees

The Court of Appeal has clarified the employment status of Methodist Ministers.

The Methodist Minister in this case resigned from her post and then went on to present a claim for unfair constructive dismissal against the President of the Methodist Conference. In order for her to succeed in her claim it was necessary for her to demonstrate that she was an employee of the Methodist Conference.

Before this the Courts had held that the spiritual nature of the work of a Minister of Religion meant the law presumed they could not be working under a contract of employment though this could be rebutted. However, the Court of Appeal recognised that the law has evolved and said that such decisions should no longer be followed. It said that there is no basis for concluding that a minister’s spiritual role in itself precludes an intention to create a contractual employment relationship. Accordingly, it ruled that she was an employee and, therefore, able to bring a claim for unfair constructive dismissal.

This case applied to a Methodist Minister appointed by a congregation or group of congregations, however there must now be a risk that other Ministers of religion may also be found to be employees .

Case reference: President of the Methodist Conference v Preston (formerly Moore).

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Checks on migrant workers should not be confined to passports

The employee in this case was married to an EEA national. This gave her the right to reside and work in the UK. However, a Home Office stamp in her passport confirming this had expired.

The employer believed that the expiry of the passport stamp rendered her contract of employment illegal and fearing that it could be fined for employing an illegal migrant worker suspended her without pay until the UK Border Agency was able to provide evidence of her eligibility to work in the UK. The employee subsequently brought a claim for unlawful deductions from pay over the suspension period. The Employment Appeal Tribunal, allowing her claim, said that the question that had to be asked was whether the contract was illegal, not whether it was thought to be illegal.

The EAT was satisfied that the employee in this case was entitled to work in the UK at all times and this was not affected by the failure to obtain a new stamp in her passport. It was, the EAT said, irrelevant whether the employer was behaving reasonably, or thought it was behaving reasonably, or that it was worried about penalties.

Employers who employ foreign nationals may find themselves in a difficult position following the judgment in this case. Employing someone who doesn’t have the right to work in the UK is a serious matter carrying a penalty of up to £10,000 per illegal employee.  However, if an employer wrongly suspends or terminates the employment of a member of its staff it could result in having to pay them compensation. Checks should not, therefore, be limited to the mere checking of an employee’s passport and legal advice should be sought when in doubt.

 

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References should be true and accurate and fair

As a general rule an employer is not under a duty to provide a reference for an employee or ex-employee. However, where a reference is provided the employer is under a duty of care to ensure that it is true, accurate and fair. A breach of this duty can lead to a negligence claim for economic loss caused to the employee as a result.

After 12 years with his employer the claimant in a recent case against a City Council left to take up another post. Although two satisfactory references were provided from previous employers, one reference provided by the ex-employer in this case was challenged. The reference contained positive statements about the ex-employee but it also left some questions unanswered and mentioned concerns about recordkeeping. The author said she could not elaborate on these concerns because they had not been investigated and she pointed out that they would have led to a formal improvement plan if the ex-employee had remained with the Council (rather than disciplinary action).

An earlier offer of employment was withdrawn in light of the reference and the ex-employee was unemployed for a year.

A  County Court had found that the reference was true and accurate but held it to be unfair because it carried with it an ‘unanswered, uninvestigated, unparticularised, unspecific allegation …. which the ex-employee had no opportunity to refute or answer ..’

On appeal, the Court of Appeal had some sympathy for the ex-employee but took the view that the reference could not be said to be unfair. It said that accuracy and truth go to the facts which form the basis of the reference and that fairness goes to the overall balance of the reference and any opinion contained within it.

Employers should exercise caution when issuing references and take legal advice if unsure whether a reference will be deemed fair.

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New ACAS guide to social media usage at work

Employment relations body Acas has published what is believed to be the first guide to social media use in the workplace.

According to Acas figures almost six out of ten employees now use social media at work. It estimates that misuse of the internet and social media by employees costs the UK economy up to £14billion a year and reports that many employers are now having to deal with issues such as time theft, cyber bullying, defamation, freedom of speech and the invasion of privacy.

The guide is aimed at helping businesses, staff and trade unions handle employment issues relating to use of the internet, blogs and social media websites such as Facebook and Twitter.  Acas claims that it will save businesses ‘billions’.

In the guide Acas advises employers to:

•    draw up a policy on social networking;
•    treat ‘electronic behaviour’ in the same way as employers would treat ‘non-electronic behaviour’;
•    react reasonably to issues relating to social networking by asking ‘what is the likely impact on the organisation?’

The guide includes practical tips on managing the impact of social networking in the context of managing performance, recruitment, discipline and grievances, bullying, defamation, data protection and privacy. It also gives guidance as to how employers should go about developing a social networking policy and helpfully explains the legal issues relating to the use of social media from an employment perspective.

A full copy of the guide can be found here.

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NMW and sleeping on the job

This case concerned a temporary pub manager who was required, under the terms of her contract of employment, to reside and sleep at the premises.An earlier tribunal had found that she was required to sleep on the premises as a ‘minimum security or preventive measure’ and that once the pub closed no actual work was required. The tribunal had also found that she was not required to stay in every minute of the day and could pop out if she wished.

The Employment Appeals Tribunal had to decide whether the time she spent at the premises overnight had to be taken into account when deciding whether or not she had been paid the national minimum wage.

The EAT held that the tribunal, who had dismissed the claim, had been wrong to decide the case under the Working Time Regulations 1998 as those regulations have no application in the context of the national minimum wage. The issue, the EAT said, should have been determined exclusively by reference to the National Minimum Wage Regulations 1999. Having said that the EAT was satisfied that the tribunal had reached the right result even though it went about it the wrong way.

Accordingly the appeal was dismissed on the basis that time spent sleeping did not count as ‘work’ for the purposes of calculating an employee’s hourly rate as against their entitlements under the National Minimum Wage Regulations.

Case reference: Ms S Wray v JW Lees & Co (Brewers) Ltd

A worker who is sleeping on premises and ‘on call’ may well be working during that time for the purposes of the Working Time Regulations which has an impact on other statutory entitlements such as how holiday leave is accrued. However, hours spent on call do not count towards a national minimum wage claim unless the employee is actually awake and working.

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Employing staff to work on Sundays

Sundays may no longer hold the special significance that they once held but there are still a number of things that employers need to bear in mind when employing staff to work on Sundays. Here we look at some of the more common questions arising out of Sunday working.

Can I force my staff to work on Sundays?

Employees will be obliged to work on Sundays if their contract of employment or written statement of terms and conditions say that they must work on Sundays or would have to work on Sundays if they are asked to.

In the absence of any contractual obligation, employees cannot be forced to work on a Sunday unless their contract is varied. However, any variation would require the employee’s consent.

However, whatever your arrangements, you must ensure that you observe the Working Time Regulations 1998 for workers’ statutory rest periods.

Do I have to pay my staff an enhanced rate of pay for working on a Sunday?

Employees who work on Sundays do not have an automatic right to receive an enhanced rate of pay. However, if their contract of employment provides for a higher rate to be paid for Sunday work then an employer is obliged to pay that rate.

Do I have to take into account the religious beliefs of my Christian workforce?

Christian staff may have strong feelings about working on Sundays. All employees and workers (including temporary agency workers, freelance workers and consultants) have the right not to be discriminated against, harassed or victimised because of their religion or belief.

For this reason employers should try to accommodate any requests by Christian staff not to work on Sundays, for example by changing their shift patterns. Employers should also be careful not to put pressure on Christian staff to work on Sundays and should ensure that Christian staff who refuse to work on Sundays are not placed at a disadvantage, for example, when it comes to promotions or decisions relating to redundancy. The right not to be discriminated against on grounds of religion or belief also protects job applicants from receiving less favourable treatment.

In some circumstances an employer may be able to justify discrimination as long as there are objective grounds. For example, an employer may be justified in discriminating against Christians if Sunday working is essential to a role, although employers should also bear in mind that not all Christians will object to Sunday working and, therefore, a blanket ban on Christian applicants is likely to be viewed as being discriminatory.

What about shop and betting workers?

There are special rules relating to Sunday working for shop and betting workers. Most shop and betting workers have the option not to work on Sundays. ‘Protected’ shop and betting workers, however, have additional protection.

A ‘protected’ worker is one who:

has been continuously employed since 25 August 1994 as a shop worker or since 2 January 1995 as a betting worker and when his employment commenced was not required to work only on Sundays; or
is not required, under his contract of employment, to work on Sundays; and
has not consented (by signing an ‘opting-in notice’) to working on a Sunday.

Employees in this category who would otherwise be required, by their contracts of employment, to work on Sundays can opt-out of Sunday working as long as they are not employed solely to work on Sundays. An employee can opt-out by providing his employer with a signed ‘opting-out notice’ and this can be done at any time. An employee who has given an ‘opting-out’ notice is treated as having opted-out 3 months after the notice was given.

Employees who are ‘protected’ and those who have opted-out cannot be made to work on Sundays. They have the right not to be discriminated against if they refuse to work on Sundays and if they are dismissed or selected for redundancy for refusing to work on Sundays their dismissal is treated as being automatically unfair.

Employers who employ shop or betting staff to work on Sundays must, within 2 months of the commencement of the employment, provide the employee with an ‘explanatory statement’ setting out their rights in relation to Sunday working including their right to opt out, unless the employee has already given an ‘opting-out notice’.

The wording which is required for the ‘explanatory statement’ is set out in S.42 of the Employment Rights Act 1996. If an employer fails to provide a valid ‘explanatory statement’ and the worker subsequently gives an ‘opting-out notice’ the employee will be treated as having opted out 1 month after the notice was given rather than 3 months after it was given.

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Equality of terms is what matters in a claim for equal pay

The Court of Appeal has held that in a claim for equal pay an employee is entitled to receive equal terms.

In this case claims were brought, for equal pay, by three female healthcare assistants and two receptionists. Their basic hourly rates of pay were higher than their male comparators. However, the rates of pay they were entitled to receive for working weekends, nights and during unsocial hours were lower than their male comparators. Overall four of the female employees were paid more then their male comparators.

The Court of Appeal said that once it had been established that there were terms in the women’s and the men’s contracts that were susceptible to comparison and that each of the terms were capable of being compared, then the earlier Employment Tribunal should have compared those terms. The Court of Appeal stressed that equal pay is focused on each distinctive term relating to remuneration and said that the Employment Tribunal was wrong to take a global view of the whole of a contract and the totality of pay and benefits.

The claims have been remitted to the Employment Tribunal whose job it will now be to decide the appropriateness of the comparators and whether the employer has a defence to the claims on the basis of there being a genuine material reason for the difference in pay in relation to the specific terms.

Case reference: St Helens & Knowsley Hospitals NHS Trust v Brownbill & Others

 

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Employed or Self-Employed?

This case concerned the legal status of a number of individuals who worked as car valeters for the same company. Each signed similar contracts, which contained clear statements to the effect that they were self-employed. They each paid tax on that basis and the Inland Revenue had previously agreed that they were self-employed.

The Supreme Court had to decide whether the individuals concerned were ‘workers’ (i.e. employees) for the purpose of the National Minimum Wage Regulations and the Working Time Regulations. If they were, they would be entitled to receive holiday pay and to be paid an amount at least equal to the national minimum wage.

In order to qualify as ‘workers’ they had to fulfil three conditions. These were as follows:

•    that they had agreed that, in return for being paid, they would provide their own work and skill in performing a service for the company;
•    that they had, expressly or impliedly, agreed that in performing that service they would be subject to a sufficient degree of control so as to make the company their ‘master’;
•    that the other provisions contained in their contracts were consistent with it being a relationship of employee and employer.

On the face of the written contracts alone the individuals could not be said to be workers. Their contracts contained very clear statements to the effect that they were self-employed. However, an earlier Employment Tribunal had found that the contractual terms did not reflect what was actually agreed between the parties. On that basis the Supreme Court said that the Employment Tribunal had been entitled to disregard the terms of the written documents. Accordingly they succeeded in their claims for unpaid wages and holiday pay.

Case reference: Autoclenz Ltd v Belcher & Others

This is not the first time a court has been asked to decide whether someone is an employee or self-employed. However, the case raises an important legal point in that when deciding whether a person is an employee or self-employed, the terms of any written agreement can be disregarded if they do not reflect the reality of the situation. What matters is not what is written down, but what the parties have really agreed.

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