Welcome to our June 2016 Employment Law newsletter, keeping you up to date with changes in employment law and informing you of recent case law developments.
CASE LAW DEVELOPMENTS
In the case of Wasteney –v- East London NHS Trust the EAT had to decide whether disciplinary action against an employee for improperly promoting Christianity to a junior colleague was unlawful religious discrimination.
East London NHS Trust received complaints from a worker of Muslim faith about Ms Wasteney’s behaviour relating to various conversations and actions that had taken place which could be characterised as “grooming”. This included Ms Wasteney praying with the junior employee, the laying on of hands and giving her a book which covered the conversion to Christianity of a Muslim woman, etc. This was unwanted attention by the junior worker. The Trust, following the investigation, stated that this amounted to serious misconduct as Ms Wasteney had confused her professional boundaries and subjected a junior colleague to inappropriate pressure and unwanted conduct.
Ms Wasteney was given a formal warning but claimed unlawful religious discrimination and harassment. Her claim was dismissed by the Employment Tribunal and the Employment Appeal Tribunal agreed and stated there had been no religious discrimination against Ms Wasteney.
The EAT explained that there was a distinction between merely manifesting a religious belief discipline for which would be unlawful discrimination, however disciplining for improperly promoting religious belief in a way that was not consensual and was in effect taking advantage of someone who was a junior to them in the organisation, was not unlawful discrimination.
In Gibbs –v- Leeds United Football Club, the High Court had to decide whether an employee’s willingness to negotiate a termination package prevented him from bringing a claim for constructive dismissal.
Mr Gibbs was the Assistant Manager at Leeds United. Following the dismissal of the manager, Mr Gibbs was asked whether he was interested in becoming head coach but Mr Gibbs indicated it wasn’t for him. Although he expected to be dismissed, he was asked to continue in his role whilst discussions were held about a consensual departure. Mr Gibbs was not expected to work with the new incoming manager and he was excluded from any training of the first team which formed part of his normal duties. He had also been excluded from pre-season training. He discovered written information that he was not to have any contact with the first team and that he would work with the youth academy. He resigned in response to these breaches of his terms and conditions of employment.
Leeds United Football Club argued that there had been a breach of contract by Mr Gibbs when he initiated a discussion about consensual termination. However the High Court disagreed. They stated that the fact that Mr Gibbs had said that he was prepared to leave if suitable terms were agreed was irrelevant.
He had been available, ready and willing to fulfil his duties. It was the club’s email to him that amounted to a repudiatory breach in response to which he resigned.
Mutuality of Obligation
The Court of Appeal in Secretary of State for Justice –v- Windle and Arada had to decide whether account should be taken of the absence of mutuality of obligation when deciding whether an individual was an employee for the purposes of the Equality Act 2010.
The Claimants were professional interpreters for HMCTS. They worked on a case by case basis and were self-employed for tax purposes and did not receive holiday or sick pay. They raised claims against the Secretary of State for Justice for racial discrimination. The Employment Tribunal dismissed the claims on the basis that they were not employees for the purposes of the Equality Act 2010 as there was no obligation on the Claimants to accept any assignment.
Therefore there was a lack of mutuality of obligation.
The EAT disagreed and overruled the decision which was then appealed up to the Court of Appeal.
The Court of Appeal has now held that the Employment Tribunal was correct from the outset.
Although the mutuality obligation between the parties was not a precondition for the definition of employment, it was a factor capable of shedding light on the nature of the relationship and in this particular case the individuals were held not to be employees.
However, as we have pointed out previously, cases such as these turn entirely on their facts, and as always employers should be very careful about the status of their workers as far too often employers hold individuals not to be employees when in fact for all intents and purposes that is exactly how they are treated.
Indirect Religious Discrimination
The EAT in Pendleton –v- Derbyshire County Council has held that it was indirect religious discrimination to dismiss a teacher for refusing to leave her husband after his conviction for sex offences. The claimant had been a longstanding teacher with a clear record. Her husband who was a head teacher was convicted of making indecent images of children and voyeurism. The claimant was dismissed.
The claimant was successful in a claim of unfair dismissal as the school had failed to show that the dismissal was for gross misconduct or some other substantial reason. The claimant had also argued that the dismissal was based on a “practice” of dismissing someone who had chosen not to end a relationship with a convicted sex offender and therefore amounted to indirect religious discrimination. She as a Christian regarded her marriage vows as sacrosanct. The Employment Tribunal rejected this argument but it was overturned by the EAT who held it to be indirect religious discrimination on the particular facts of the case.
The EAT’s reasoning was that the claimant would be in a group, that was put at a particular disadvantage by the “school’s practice” of dismissing those in her situation and there was no justification for the dismissal. This case may not fit comfortably with parents of schoolchildren!
Working Time Regulations Rest Breaks
This was a cheeky claim by an employee at Higher Level Care Limited. A Ms Santos Gomes claimed compensation for injury to feelings for not being allowed rest breaks under the Working Time Regulations. Although the claimant won compensation following her employer’s failure to provide her with a 20 minute rest breaks on shifts over 6 hours, the Employment Judge and the Employment Appeal Tribunal both rejected the arguments that she was entitled to an injury to feelings award as well.
DEVELOPMENTS IN LEGISLATION
Enforcement of Tribunal Awards and Settlements
BIS has published its form for claiming penalties from employers for non-payment of Tribunal awards or settlements.
Where a claimant has not been paid any sums under a settlement or Tribunal award, they can ask BIS to issue a penalty of up to 50% of the outstanding amount subject to a minimum of £100 and a maximum of £5,000.
This however will not assist many claimants as the fine could be far less than the amount payable to the claimant, and furthermore the fine will not go to the claimant but BIS.
Consultation on Tipping
The Government has launched a consultation paper setting out it’s proposals for the handling of tips and services charges. The proposals include: –
- Introducing a statutory provision to increase employer compliance.
- Improving transparency for consumers so that it is clear to them that payments for service are a choice and are not compulsory.
- Preventing employers from making deductions from discretionary payments for service except where required by tax law.
It is hoped that this consultation will bring much clarity that is required in respect of tips for workers.
Trade Union Act
The Act received Royal Assent on 4th May 2016. It provides the various provisions including:
- The requirement for at least 50% turnout in votes for industrial action to take place.
- In certain public services an additional threshold of 40% of support to take industrial action from all eligible members must be met for action to be legal. These include the health, education and transport sectors as well as border security and fire.
- Creating a transparent process for trade union subscriptions which will allow new members to make an active choice of paying into political funds.
The actual commencement of this Act is not yet known but we will keep you updated once the statutory instrument is introduced to bring into effect.
Employment Agency Amendment Regulations
From 8th May 2016, the conduct of employment agencies and businesses is governed by the Conduct of Employment Agencies and Employment Business (Amendment) Regulations 2016 which updates the same Regulations of 2003. The main change is the removal of the requirement for employment agencies/businesses to agree terms and enter into a written contract, with hirers.
If you require any further clarification in relation to the above developments, or if you need any further assistance then please do not hesitate to contact our team of specialist employment solicitors on 0161 832 3304.
This newsletter does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.