Welcome to our latest employment update. This month we reflect on the impact of the recent ECHR decision on an individual's right to manifest their religious beliefs, focus on some recent conduct cases and look ahead to changes in 2013.
European Court of Human Rights provides guidance on competing discrimination rights
In the recent cases of Eweida & Others v The United Kingdom, the European Court of Human Rights (ECHR) had to examine whether the UK Government had taken sufficient steps to protect the Article 9 rights (to manifest their religious beliefs) of four individuals employed in the UK. All four claimants had lost their cases in the UK Courts against their employers for breach of the religious discrimination provisions. All four were Christians: Ms Eweida and Ms Chaplin were not permitted to wear crosses at work, Ms Ladele was a Registrar who did not want to perform same sex civil partnerships and Mr McFarlane was a counsellor for Relate who did not want to provide counselling for same sex couples.
The ECHR ruled that BA worker, Nadia Eweida's rights were infringed by the ban on her wearing a cross at work. In a majority Judgment, the ECHR decided her wearing of a cross did not impact on the interests of others and there was no evidence of the damage to the corporate image (which was the interest BA were seeking to protect) as Ms Eweida maintained a professional image at all times. The ECHR found therefore that the domestic courts gave too much sway to BA's aim, and did not do enough to protect Ms Eweida's rights. The Court noted that BA subsequently amended its uniform policy to allow for the visible wearing of religious symbolic jewellery and found that this "demonstrates that the earlier prohibition was not of crucial importance".
In the three other cases, the Christian applicants lost their claims. The ECHR found that as a nurse, Ms Chaplin's desire to wear a cross had to be balanced with the clinical judgment of her employer that it posed a potential risk (patients could grab it, spread germs etc). The ECHR agreed that hospital managers were well placed to make decisions about clinical safety and so the UK Courts had weighed the health and safety issue here correctly. Both Ms Ladele and Mr MacFarlane's interests had to be balanced with the convention rights of others (relating to sexual orientation) and the UK Courts had a wide margin to do this. The ECHR found that they acted within the discretion available.
The Judgment was a sensible one highlighting the balancing act that has to take place when different convention rights compete in different factual scenarios. One right does not automatically trump others.
Opinion Piece - David Green
A measured approach to religious Discrimination
Following the recent decisions in the European Court of Human Rights ("ECHR"), there has been much speculation in the press about what those decisions mean to the Christian faith. Views range from continued persecution of Christians as against other faiths to Christianity Fights Back. The subject of religious discrimination is always emotive. However, one needs to look behind that emotion and actually analyse what the ECHR decided. When analysed, good old fashion common sense prevails.
The ECHR were hearing four appeals, but only one of those appeals was successful. The press obviously focused on the successful case, Eweida. Why was that case successful? It was successful because British Airways' response was disproportionate. The only consequence for Nadia Eweida wishing to wear her cross was that she was in breach of the uniform code. However, if you look at the decisions relating to the other three claims, then there were good reasons why the employers had reached these. In the Chaplin case, she failed because there were health and safety reasons why a nurse should not wear a cross with a chain which, when thought about, are obvious. The employer had also sought to offer alternatives. In the other two cases, the ECHR again considered that the employers had justified their responses.
What is therefore clear is that each case will depend on its facts and will need to balance the religious views of the Claimant against the proportionate response of the employer.
Shortly after the ECHR cases, there was a UK Judgment which found that a Christian care worker had no right to take a Sunday off. This case was again very fact specific and the Judge made clear he was not laying down a principle that taking Sunday off was not core to Christianity. Those who cry foul on the legislation, need always to look behind the headlines. All employers face a difficult balancing act and the ECHR cases confirm that employers just need to ensure that they use common sense.
Focus: 2013 - a year of change
- Increase in compensatory limit for unfair dismissal to £74,200
- Increase in a week's pay for the purpose of calculating a basic award and statutory redundancy pay to £450.
- Repeal of the third party harassment provisions and discrimination questionnaires in the Equality Act 2010.
- It is anticipated that the new concept of "employee owner" will be introduced whereby employees give up certain employment rights (such as unfair dismissal and redundancy pay) in return for £2,000 or more of shares in the business which will be exempt from CGT (the CGT exemption applies up to £50,000).
- Whistleblowing provisions change to require a "public interest requirement". This prevents claims relating to personal employment contracts.
- New Employment Tribunal Rules to come into force.
- Collective redundancy consultation period involving 100 or more employees reduced from 90 to 45 days and employees whose fixed term contracts are due to expire will be excluded from consultation requirements.
- Fees to be introduced into the Employment Tribunals.
- The unfair dismissal compensatory award will be capped at the lower of one year's gross pay and the existing limit.
- Pre-termination negotiations to be inadmissible in unfair dismissal proceedings.
- It is anticipated that model Settlement Agreements will be introduced along with standard letters and a new ACAS Code of Practice on settlement.
- Financial penalties for breach by an employer which has "one or more aggravating features" to be introduced. Minimum of £100 up to £5,000. The penalty will be reduced by 50% if paid within 21 days.
- Mandatory pre-claim ACAS conciliation to be introduced.
- Enhanced shareholder rights regarding directors' remuneration.
- EAT judges to sit alone.
Misconduct Issues in the Spotlight
If employee's honesty at stake - a higher standard of investigation may be required
In Stuart v London City Airport the dismissal of an employee for theft was held to be unfair where the employer had failed to carry out a full investigation which might have proved the employee was innocent.
Mr Stuart, who worked at London City Airport and had an unblemished record, was accused of stealing goods from a duty free shop. In deciding to dismiss, his employer took into account a written statement by the member of staff who claimed to have witnessed him leaving the shop with items concealed beneath his coat. However, it only heard oral evidence from the employee's manager who had not actually seen what had happened, and it did not examine the available CCTV footage. The employer concluded he had left the shop boundary without paying for the items. Mr Stuart explained he had gone to speak to a colleague who had called him over while he was queuing, he had not hidden the items and he thought he was still within the general shop area. The EAT held that the gravity of the allegation and the failure by the employer to look into Mr Stuart's explanation, check the CCTV footage or hear the evidence of the actual witnesses, meant the employer could not be said to have conducted a reasonable investigation and the dismissal was unfair.
- Where an employee's integrity is in question, a higher level of investigation is required to establish their guilt in order for a fair dismissal to be proved
- Where the employee raises a plausible defence, ensure that this is investigated properly.
Approach to previous warnings when deciding whether to dismiss
In Wincanton v Stone and anor the EAT gave some useful guidance to tribunals on what they should take into account in respect of previous warnings where the employee is subsequently dismissed for further misconduct, which is not gross misconduct.
- Where there is a valid warning in place i.e. it was not given in bad faith and is not inappropriate, the tribunal should take account of the fact of the warning.
- It should take account of any proceedings which might affect the validity of the warning such as an internal appeal.
- A tribunal is not permitted to go behind a valid warning and hold that a lesser sanction should have been applied.
- The tribunal should take into account how the employer has treated other employees in similar circumstances - therefore ensure consistency in treatment unless there are good reasons for departing from this.
- The tribunal should take into account the factual circumstances giving rise to the first warning, for example, the degree of similarity or dissimilarity with the later disciplinary issue.
- A final written warning always implies that further misconduct will be met with dismissal unless there are exceptional reasons or the terms of the contract provide otherwise.
If dismissing for misconduct ensure it is clear what has been taken into account
In Nejjary v Aramark , Mr Nejjary was dismissed for gross misconduct. He worked in hospitality and his dismissal was for failing to check a booking event sheet as a result of which he did not run the event properly. A Tribunal found his dismissal was fair because although it was not reasonable to dismiss for this one incident, he had a poor employment record.
On appeal, the EAT found that the Tribunal had applied the wrong test. It could only look at the actual reason for dismissal. If the employer had not taken his wider employment record into account, then neither should the Tribunal. His unfair dismissal claim was therefore successful.
- When considering dismissing for misconduct, ensure that all the relevant factors in the decision-making process are expressly taken into account.
Is it fair to discipline an employee twice for the same offence?
The Court of Appeal will be considering this question this month in Christou and anor v London Borough of Haringey . This case involved the fairly unusual facts surrounding the death of Baby P and the subsequent dismissal of two social workers involved. These employees were originally given written warnings but a new management team took a different view and instigated further disciplinary hearings as a result of which they were dismissed. The EAT held the dismissals were fair as the Tribunal had taken into account the first disciplinary proceedings and written warnings when considering whether, in the overall fairness of the dismissal, it fell within the range of reasonable responses open to the employer.
- Even if the Court of Appeal upholds the EAT decision, cases where it is fair to discipline an employee twice for the same offence will be rare and an employer should only do so with extreme caution and good reason.
Immigration law is constantly changing and the cost to businesses of getting it wrong can be significant. Our new Head of Immigration, Shahram Taghavi will be producing regular client updates on forthcoming changes. Please contact Cheryl Stone on email@example.com or 020 7203 5317 if you would like to be added to our immigration focused updates.
On 17 January, the Government made a number of announcements on its ongoing employment law reform programme. Three new consultation papers and two responses were published:
- A consultation paper was issued relating to TUPE. Proposals include repealing the service provisions change provisions.
- There are proposals to simplify the regulation of the recruitment sector by repealing the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Business Regulations 2003 and replacing them with a new regulatory framework.
- Long term sickness absence is to be tackled with the introduction of a health and work assessment and advisory service from 2014.
- The Children and Families Bill has been published which will introduce a new system of shared parental leave and pay.
Key points to take away
- When considering requests to accommodate religious beliefs, ensure you consider a reasonable balance between the business and the individual.
- Where an employee's integity is in question, a higher level of investigation is required. l Ensure consistency in treatment for similar disciplinary offences.
- Ensure all the relevant factors are taken into account when deciding to dismiss.
Dates for the Diary
TUPE proposals for change: round-table event - 12 March 2013 - London
Mock Employment Tribunal - 19 April 2013 - London
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.