UK: Employment Newsletter - March 2013

Last Updated: 16 April 2013
Article by Brian Gegg

RIGHT TO MANIFEST RELIGIOUS BELIEF

By Jesper Christensen

The key issue for the European Court of Human Rights in Eweida and Others v UK was whether a fair balance had been struck between an individual's fundamental right to freedom of religion on the one hand, and an employer's interests on the other.

Ms Eweida was suspended by BA for wearing a cross over her uniform, and brought a complaint of indirect discrimination on the grounds of her religious belief. She won her case because the court considered that a fair balance had not been struck between her right to freely manifest her religion and BA's right to project a professional corporate image. BA had already made exceptions to its uniform policy for other clothing which manifested religious beliefs, such as turbans and hijabs, and there was no evidence that this had had a negative impact on the company's policy. Nor did the visible wearing of a cross encroach on the rights of others. In this case, the UK courts had given the employer's interests too much weight, and the policy could not be justified. By contrast, Ms Chaplin's request to wear a cross whilst working on a hospital ward had been justifiably refused on health and safety grounds.

Two other applicants lost their claims for similar reasons. Ms Ladele, a registrar, had refused to perform same-sex civil partnership ceremonies, and Mr McFarlane, a Relate counsellor, had refused to provide counselling to same-sex couples. Their rights to manifest their beliefs about homosexuality were outweighed by their employers' aims of ensuring equal opportunities for all.

These cases illustrate the difficulties of deciding where the balance lies between the competing interests of employers and employees in discrimination cases. With these examples in mind, employers should check that uniform and dress codes do not unjustifiably prevent employees manifesting their individual religious beliefs.

CHRISTIAN WORKER REQUIRED TO WORK ON SUNDAYS

By Brian Gegg

In Mba v Mayor and Burgesses of the London Borough of Merton, the EAT has considered whether a Christian care worker suffered indirect religious discrimination when she was required to work on Sundays.

Ms Mba, a devout Christian, was employed at a home for children with severe disabilities. Although her contract stated that she could be required to work on Sundays, she was initially allowed to take Sundays off because of her religious belief that Sundays should be a day of rest. Eventually, due to staffing problems, Merton asked Ms Mba to work occasional Sunday shifts. When she refused, she was given a final written warning, which led to her resignation. She then brought a claim alleging that requiring her to work on Sundays amounted to indirect religious discrimination.

The Employment Tribunal dismissed Ms Mba's claim, finding that Merton's requirement for all care workers to work on Sundays was objectively justified. Her appeal has now also been rejected by the EAT. Crucially, Merton was able to show that it had legitimate aims in enforcing Sunday working, including ensuring an appropriate seniority mix and gender balance on each shift, fair treatment of other staff, and continuity of care for the children. In addition, Merton was prepared to arrange Ms Mba's shifts so that she could attend church. Requiring her to work on Sundays was therefore held to be a proportionate means of achieving Merton's legitimate aims.

The EAT commented in its judgment that this case is not a 'ringing endorsement of an individual's right not to be required to work on a Sunday on the one hand, or an employer's freedom to require it on the other'. Individual employers will need to objectively justify any similar requirement, and be able to demonstrate that it is a proportionate means of achieving a legitimate aim in the specific circumstances of their case.

STRINGFELLOWS LAP DANCER WAS NOT AN EMPLOYEE

By Caroline Yarrow

In Stringfellows Restaurants Ltd v Quashie, the Court of Appeal has reinstated the Employment Tribunal's decision that a lap dancer was self-employed and accordingly could not pursue an unfair dismissal claim.

The Court of Appeal considered that too many factors in this case pointed away from an employment relationship. Most importantly, the financial risk lay entirely with Ms Quashie. She negotiated her fees with individual clients and was paid exclusively by them. In addition, since she had to pay various fees and fines to the club, she risked being out of pocket on any given night. These arrangements were backed up by written contract terms in which Ms Quashie accepted that she was self-employed. Although there were certain mutual obligations, such as the requirement to follow rules relating to the lap dancers' rota, dress and dances, these were not sufficient for her to have employee status. Overall, the evidence demonstrated that both parties meant her to be self-employed.

Contracts with self-employed workers should be reviewed regularly to ensure that they reflect the intentions of the parties and the practical realities of their working relationship, whilst minimising the risk of workers being classed as employees. As the Stringfellows case illustrates, this is a difficult area which even the courts find difficult to determine with certainty.

AGENCY WORKERS

The Agency Workers Regulations 2010 (AWR) state that, after a 12 week qualifying period, agency workers are entitled to the same basic working and employment conditions as the hirer's permanent staff.

However, in relation to pay only, there is an exception to this principle of equal treatment if agency workers enter into a permanent contract of employment with a temporary work agency under which they are paid a minimum amount between assignments for at least four weeks. Broadly, the minimum amount is the greater of half pay or the national minimum wage. This is known as the Swedish derogation because it was negotiated by the Swedish government for inclusion in the EU Agency Workers Directive.

There has been uncertainty over whether agency workers can be transferred onto a Swedish derogation contract even where they have been working for the same hirer for some time, or whether the derogation can only apply to a completely new assignment. In Bray and others v Monarch Personnel Refuelling (UK) Ltd, an Employment Tribunal has now confirmed that a new contract issued to agency workers complied with the derogation in circumstances where those workers had already had a longstanding relationship with the hirer.

The claim was brought by a group of tanker drivers who worked for an agency which contracted to provide their services to BP. All the drivers had worked continuously for BP on a series of assignments over a number of years. When the AWR were introduced, BP asked the agency to employ the drivers under Swedish derogation contracts rather than equalising their pay to the higher hourly rate paid to comparable BP employees. The drivers began working on their next assignment with BP after agreeing the new derogation contract. However, they subsequently claimed that the Swedish derogation could only apply in relation to the first ever assignment with a particular hirer.

The Employment Tribunal rejected the drivers' claim, concluding that the Swedish derogation can apply where agency workers have already been working for a particular hirer provided that the new derogated contract is agreed with the workers prior to the date on which the derogation needs to take effect. Although this is only a first instance decision, it provides useful clarification for temporary work agencies and hirers. It should be noted that a Swedish derogation contract must also comply with various formalities required by the AWR.

CHECKING CRIMINAL RECORDS BREACHES RIGHT TO RESPECT FOR PRIVATE LIFE

The current statutory scheme for checking criminal records requires the blanket disclosure of all spent warnings, convictions and cautions in relation to certain occupations working with children or vulnerable adults, irrespective of the relevance of such information in any particular circumstances. The Court of Appeal has held in R (T and others) v Chief Constable of Greater Manchester that this requirement is incompatible with the right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR).

Each of the claimants in this case had been prevented from pursuing jobs or courses later in life as a consequence of earlier criminal records being disclosed, and alleged that the current criminal records disclosure scheme is incompatible with the ECHR.

T wanted to do a sports studies course which would involve teaching children. He had received two warnings when he was 11 in relation to two stolen bicycles.

JB applied for a job in the care sector, but an enhanced criminal record certificate disclosed a caution for a minor shoplifting offence committed eight years earlier.

AW was prevented from joining the army due to a conviction for manslaughter received when he was 16 (which would never be spent).

In the case of T and JB, it was held that the current legislative scheme interfered with their rights under Article 8. Whilst the scheme pursued a legitimate aim of protecting children, vulnerable adults and employers, the way it was enacted was disproportionate since it did not seek to control the disclosure of information by reference to whether that information was relevant. By contrast, in AW's case, the scheme was not disproportionate, since some offences are so serious that they should never be spent.

This judgment will not take effect pending the outcome of the Government's application for leave to appeal to the Supreme Court. If the decision stands, the current disclosure scheme will need to be changed to ensure that information provided to employers about a job applicant's criminal record is relevant to the job in question.

STANDING FOR LONG PERIODS AT WORK IS A 'NORMAL DAY-TO-DAY ACTIVITY' WHEN ASSESSING DISABILITY

In order to qualify as 'disabled' under the Equality Act 2010, an employee must have a physical or mental impairment which has a substantial and adverse long-term effect on their ability to carry out normal day-to-day activities. In Aderemi v London and South East Railway Ltd, the EAT overturned a Tribunal's decision that standing for long periods at work could not amount to normal day-to-day activities for the purposes of this statutory definition.

Mr Aderemi was employed as a station assistant, a job which involved prolonged periods of standing. Following several periods of sick leave due to back problems, he was dismissed on capability grounds because his back pain prevented him from standing for long periods of time. He then brought a claim for disability discrimination. The Employment Tribunal concluded that Mr Aderemi's back problem did not satisfy the statutory definition of a disability. Although he had a physical impairment, this did not have a substantial effect on his ability to carry out day-today activities. For example, he could still walk, sit, stand and do exercise for short periods. His claim was therefore rejected.

However, the EAT overturned this decision, saying that the Tribunal had adopted the wrong approach in focussing on what Mr Aderemi could do rather than what he could not do, since the legislation requires an analysis of 'adverse effect'. It also appeared that the Tribunal might have thought incorrectly that activities at work cannot amount to 'normal day-to-day activities' when assessing disability. Standing for long periods at work is clearly a normal day-to-day activity. The case was remitted to a different tribunal for a re-hearing.

GOVERNMENT PROPOSES MAJOR REFORM OF TUPE REGULATIONS

The Government has now published a long-awaited consultation paper on its proposals to amend the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). In summary, these include:

  • Removing the TUPE regulations which currently apply to service provision changes (SPCs). This means that SPCs would essentially be subject to the same test as other business transfers when deciding whether TUPE applies ie whether there is a transfer of an economic entity which retains its identity.
  • Removing the obligation to provide employee liability information, and only to do so 14 days before the transfer whilst making it clear that information should be disclosed where it is necessary for either party to comply with their information and consultation obligations.
  • Extending the meaning of 'economic, technical and organisational reasons entailing changes in the workforce' (ETO reasons) to include changes in the location of the workforce. This means that dismissals may not be automatically unfair if there is a change in place of work because of the transfer.
  • Allowing the transferee to consult with transferring employees about collective redundancies prior to the transfer. This would count for the purposes of the separate requirement to consult on collective redundancies.
  • Allowing micro-businesses to inform and consult their employees directly if there are no recognised trade union representatives or existing representatives.
  • Improved guidance on certain issues including the application of TUPE to temporary agency workers, and the process for electing employee representatives.

The Government is also seeking views on whether transferees should be able to change terms and conditions derived from collective agreements after a period of one year following the transfer, and whether transferors should be able to rely on the transferee's ETO reasons in respect of pre-transfer dismissals.

Responses to this consultation must be submitted by 11 April 2013. Changes are planned to come into force in October 2013, with the exception of the service provision changes which may come in at a later date. In the meantime, any service contracts currently being negotiated should contain detailed provisions to deal with the possibility that TUPE will not apply at the end of the contract.

PROPOSALS FOR MANDATORY PRE-CLAIM CONCILIATION

As part of its drive to reform the employment tribunal system, the Government has issued details of its plans for mandatory pre-claim conciliation, which will be introduced through the Enterprise and Regulatory Reform Bill and new regulations.

With limited exceptions, prospective claimants will have to contact ACAS with a view to exploring early conciliation (EC) before they are allowed to issue a tribunal claim. In brief, the proposed procedure is as follows:

  • The prospective claimant must submit an EC form to ACAS containing contact details for both parties. No information on their potential claim will be required. The EC form will stop the clock in relation to the relevant tribunal time limit for submission of the claim.
  • ACAS will make 'reasonable attempts' to contact the prospective claimant.
  • If conciliation is not possible, ACAS will issue an EC certificate which will allow the claimant to proceed with the tribunal claim.
  • If the parties agree to conciliate, ACAS will have one month from the date of the EC form to promote a settlement. This period can be extended by up to two weeks.

NEW MEASURES TO TACKLE LONG-TERM SICKNESS ABSENCE

The Government has published its response to the review of workplace sickness absence conducted by Dame Carol Black and David Frost in 2011. Most of the recommendations in the report have been accepted, including:

  • Introduction of an independent assessment and advisory service from 2014 which will provide state-funded occupational health advice for employees who are off sick for four weeks or more, as well as guidance for employers on supporting employees' return to work.
  • Revised guidance on fit notes.
  • Removal of the statutory requirement to maintain SSP records.
  • Improved standards of sickness absence management within the public sector.

AND FINALLY...

From the summer of 2013, the cap on the compensatory award for unfair dismissal will be the lower of £74,200 and one year's pay. Although the change is unlikely to affect most tribunal awards, which average around £5,000, it will have an impact on higher earners, and may assist employers in settlement negotiations.

The Information Commissioner's Office has published consultation on the draft subject access code of practice which gives guidance on handling requests for personal data. Compliance with the recommendations will only be mandatory as regards the requirements of the Data Protection Act 1998. The final code of practice is due to be published by April 2013.

The Parental Leave (EU Directive) Regulations 2013 came into force on 8 March 2013. Changes include a new right for agency workers to request flexible working on return from parental leave, and an increase in parental leave entitlement from 13 weeks to 18 weeks for each child.

The Government has announced that prospective adoptive parents will be given time off work to meet the children they are due to adopt, although it is not yet clear whether this will be paid or unpaid. In its response to the Modern Workplaces Consultation, the Government has already announced that adoption leave and pay will be brought into line with the current maternity provisions.

BIS has issued consultation on reform of the recruitment sector. Proposals include improved procedures for workers moving between jobs and from temporary to permanent positions, greater clarity on responsibility for paying temporary workers, and changes to enforcement mechanisms. The consultation closes on 11th April 2013.

The Ministry of Justice has announced that an online facility to pay employment tribunal fees will be introduced by July 2013. Although it has not yet been confirmed, this suggests that the new fee structure will come into force at the same time.

The Equality and Human Rights Commission has published new guidance on the public sector equality duty under the Equality Act 2010, aimed at helping public authorities eliminate discrimination in the workplace and when delivering public services. This guidance is not a statutory Code of Practice, but can be used as evidence in legal proceedings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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