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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Disability must exist at the time of discrimination for such a claim to succeed

The EAT has considered the definition of disability in giving judgment in a recent case.

As a result of an accident at home, the employee in this case was left suffering from concussion and went off sick. Five months after the accident his GP’s view was that he would make a full recovery and he expected some improvement within the following few months. His GP also hoped that there would be no need for any adjustments on his return to work.

The prognosis was, therefore, that he would fully recover within less than 12 months of the accident. The GP set out his prognosis in a medical report in which he also stated that the employee was disabled. However, it was apparent that this view was based on the nature of the employee’s symptoms as of the date of the report rather than based on the likely position over the ensuring 12 month period. Shortly after the date of the initial medical report the employee was dismissed.

As it happened the employee’s recovery was not as speedy as had been anticipated and 11 months after the accident his GP still considered him to be disabled. He brought a claim for disability discrimination, arguing that he was disabled at the time of his dismissal and that he had been unlawfully discriminated against by reason of his disability. An Employment Tribunal had earlier ruled that he was disabled at the time of dismissal and the employer appealed. On appeal, the Employment Appeal Tribunal said that the earlier tribunal had been wrong to conclude that he was disabled as it had failed to apply the legal test set out in the Disability Discrimination Act and to apply it as at the date of the dismissal.

The Disability Discrimination Act has been superseded by the Equality Act. However, the test remains the same, namely a person is disabled if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. An impairment is regarded as being substantial if it has lasted or is likely to last at least 12 months.

The Employment Appeal Tribunal said that the question for the tribunal was whether the employee had established that he was disabled at the time when the alleged discrimination took place, i.e. at the time of his dismissal. It was, therefore, necessary for him to demonstrate that at the time of his dismissal the symptoms he was suffering from were as such as to have a substantial adverse effect on his day-to-day activities and that the likelihood was that they would last at that level for at least 12 months from the date of the accident.

The Employment Appeal Tribunal said that even if he was experiencing a substantial adverse effect on his day-to-day activities at the time of dismissal the GP’s view was that was not going to persist for very much longer and was certainly not going to persist for 12 months or more. Accordingly, it ruled that the employee was not a disabled person when he was dismissed.

The Employment Appeal Tribunal also said that it was for the employee to show that he was disabled and that the tribunal had been wrong to criticise the employer for not making further enquiries of the GP.

Case reference: S G Baker Ltd v Mr Garry Haggart.

Employers should bear in mind that GPs are not always aware of the legal definition of disability and even where they are it will ultimately be for a tribunal, not a GP, to decide whether a person is disabled or not. For this reason legal advice should be obtained where there is doubt as to whether a person is disabled.

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£4.5 million awarded for sex and race discrimination

A Polish female doctor who was subjected to discrimination on grounds of her sex and race has been awarded just under £4.5 million in compensation.

The tribunal hearing the claim found that she had been subjected to a concerted plan of action designed to end her employment while she was on maternity leave. It heard evidence of unjustified complaints about her, repeated references to her Polish origin, questions about her competency because she trained in Poland, ‘a lengthy and wholly unauthorised period of suspension’, and a ‘bogus’ disciplinary procedure which resulted in her being dismissed ‘for no good or justifiable reason’. The tribunal said that it had been ‘positively outraged’ at the way in which the employer behaved.

Medical evidence showed that she had suffered ‘chronic and disabling’ post-traumatic stress disorder, depression and anxiety, which had led to an ‘enduring personality change’ The tribunal took the view that as a consequence she will never return to work as a doctor and, therefore, took the exceptional approach of awarding compensation for loss of earnings right up until retirement.

The figure awarded is thought to be the largest award in a UK discrimination case, where awards are unlimited. The Trust and three senior staff members were held jointly and severally liable to pay the compensation.

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Rights of Bulgarian and Romanian workers are delayed

Employers may need to shelve any plans to employ Bulgarian and Romanian workers as restrictions on their right to work have been extended.

Romania and the Republic of Bulgaria joined the EU in 2007. When they joined, existing Member States were allowed to restrict access to their labour markets by Bulgarian and Romanian nationals until 31 December 2011. After that, they could extend those restrictions until 31 December 2013 if there were ‘serious disturbances’ to a Member State’s labour market or the threat of such disturbances.

The UK chose to make such restrictions in the Accession (Immigration and Worker Authorisation) Regulations 2006 which applied from the beginning of 2007. Those Regulations restricted Bulgarian and Romanian nationals’ ability to work in the UK until 31 December 2011. The UK has now decided to continue to apply those measures until 31 December 2013 on the basis that there is a ‘serious disturbance’ in the UK labour market. The 2006 Regulations have, therefore, been amended by the Accession (Immigration and Worker Authorisation) (Amendment) Regulations 2011.

This continues the existing provisions. For most categories of worker from these countries, the UK employer will have to apply for a work permit before the immigrant applies for an ‘accession worker authorisation document’. If s/he obtains that document, the worker then has to work in accordance with the conditions in it.

Permission to work will normally only be given where a worker has a specific job offer and the work is in skilled employment for which the employer has been unable to find a suitably qualified resident worker.

Further information on applying for a work permit for Bulgarian and Romanian workers can be found at the UK Borders Agency website.

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Landmark equal pay ruling favours workers

A landmark decision has confirmed that employees have potentially six years to bring an equal pay claim.

Claims for equal pay can be brought either through an Employment Tribunal or through the ‘ordinary courts’ (i.e. the County and High Courts). Historically they have, however, in practice been brought through the Tribunals. The choice of venue may be of significance, as it was in this case, as an employee only has six months to present an equal pay claim in an Employment Tribunal but six years to bring a claim through the ordinary courts. As a consequence it is, therefore, possible for proceedings to be commenced in time in the ordinary courts after the time for presenting a claim in an Employment Tribunal has expired.

The ordinary courts have, in all cases, the discretion to strike out an equal pay claim, if it could be more conveniently dealt with by an Employment Tribunal. They also have the discretion to refer the claim to an Employment Tribunal and place on hold the court proceedings pending the Employment Tribunal’s decision.

The question the Court of Appeal had to decide in this case was whether the ordinary courts should strike out a claim and, thereby deny the employees in question of a remedy, where the time for presenting a claim in an Employment Tribunal had expired.

The Court of Appeal said that when an ordinary court exercises its discretion to strike out a case the fact that an employee would be deprived of their right to pursue a claim is a relevant factor which should be taken into account and given considerable weight in most cases. Accordingly, in most cases an employee will have six years to bring an equal pay claim.

Following the decision in this case, it will be more important than ever for businesses who acquire employees under TUPE to obtain appropriate indemnities to protect themselves against liability for equal pay claims.

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What is a ‘reasonable’ adjustment for the purposes of discrimination law?

Employers are required to make ‘reasonable adjustments’ to prevent their disabled workers from being placed at a substantial disadvantage in comparison with persons who are not disabled. This may arise in the context of enabling a disabled person to remain in work or, as in this case, to facilitate a disabled employee’s eventual return to work after a period of long term sick leave.

The employee argued that the employer’s failure to have taken certain steps amounted to a failure to make reasonable adjustments and was therefore a breach of the employer’s duty. In this case the Employment Appeals Tribunal considered what amounts to a reasonable adjustment in the context of an employee who was disabled by virtue of her suffering from chronic fatigue syndrome.

The EAT said that adjustments that do not have the effect of alleviating a disabled person’s substantial disadvantage in comparison with persons who are not disabled do not amount to reasonable adjustments for the purposes of the law in this area. Accordingly the EAT held that the following did not amount to reasonable adjustments:

• the production by an employer of something that the employee could take to their GP to sign him or her off for some form of ‘light duties’ (even if such duties consisted of non-productive work) as a form of rehabilitation;

• the granting of permission for an employee to take a career break.

In giving its judgment, the EAT also said that consultations, trials and exploratory investigations do not amount to reasonable adjustments.

The EAT also had to decide whether the employee had a claim for constructive unfair dismissal. It decided that she did not. There had been no ‘last straw’ which had resulted in her resignation, the employer’s behaviour had not amounted to a serious breach of the terms of the contract of employment (the employer had not destroyed the relationship of trust and confidence) and there had been no failure on the part of the employer to make reasonable adjustments.

As to what amounts to a reasonable adjustment will depend upon the circumstances of a particular case. In a case concerning an employee who has been on long term sick leave reasonable adjustments may include allowing a phased return to work, changing their working hours or allowing them to work from home.

Case reference: Salford NHS Primary Care Trust v Mrs A F Smith

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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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Cornwall NHS Trust loses appeal over whistle-blowing case

Following the dismissal of former Chief Executive, John Watkinson, an employment tribunal ruled that he had been sacked because he planned to act as a ‘whistleblower’. This was after he had voiced concerns about the legality of plans to move some cancer services out of Cornwall to Devon.

The trust accepted that he had been unfairly dismissed but appealed the ‘whistleblower’ element of the judgment.

The Employment Appeals Tribunal dismissed their appeal giving the following reasons for their decision:

•    The disclosure made by Mr Watkinson of advice which indicated that the Trust would be breaking the law if it did not undertake a public consultation on proposed changes to services affecting certain cancer patients was a ‘protected disclosure’ for the purposes of the Employment Rights Act 1996;

•    There was clear evidence from which the Tribunal could infer that the South West Strategic Health Authority, who was against holding a public consultation, applied pressure on the Trust, whom it supervised, to dismiss Mr Watkinson for making the disclosure;

•    The Tribunal had reached decisions which were open to them and had given full and adequate reasons for their decisions.

Case reference: Royal Cornwall Hospitals NHS Trust v Mr John Watkinson

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Amendments to the Agency Workers Regulations

The Agency Workers Regulations 2010 which are due to come into force on 1 October 2011, have been amended. The amendments, which are contained in the Agency Workers (Amendment) Regulations 2011 and come into force on 1 September 2011, have the following effects.

The Agency Workers Regulations 2010 which are due to come into force on 1 October 2011, have been amended. The amendments, which are contained in the Agency Workers (Amendment) Regulations 2011, come into force on 1 September 2011.

The 2010 Regulations give temporary agency workers certain rights including rights in relation to basic working and employment conditions.

The 2011 Regulations correct a number of drafting errors contained in the 2010 Regulations by:

• changing the definition of an ‘agency worker’. The 2010 Regulations only covered workers who have a contract of employment with an agency or another type of contract to perform work and services personally for the agency. The 2011 Regulations extend the definition of agency worker so as to include workers who have a contract with the agency to perform work or services personally. The change, therefore, means that the worker will not need to be working for the agency itself;

• changing the circumstances in which an agency worker will not be entitled to be paid the same as other staff recruited directly by a hirer. As a general rule, when the 2010 Regulations come into force agency workers will be entitled to be paid the same as other workers recruited directly by a hirer. There are certain exceptions to this general rule, which will apply to agency workers who have a permanent contract of employment with their agency and the 2011 Regulations contain a minor change to this.

• changing the circumstances in which an agency will be liable for any failure on the part of a hirer to comply with their requirement to provide the same basic working and employment conditions to agency workers as they do to the staff they recruit directly. The 2010 Regulations created a defence, which will be available to agencies in certain circumstances, and the 2011 Regulations has changed the circumstances in which the defence will be available. The change means than an agency will be able to avoid liability for breach of the Regulations by a hirer if it can show that it has taken reasonable steps to obtain information about the hirer’s terms and conditions.

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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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