Articles | Employment bulletin August 2016

A review of recent cases concerning a ban on headscarves at work, the risks of conducting a disciplinary in absentia and the scope of whistleblowing protection plus a guest article by Tom Maple, Partner in our dispute resolution team.

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David Clay

David Clay

Ban on headscarf potentially direct discrimination

Advocate General’s decision could have significant ramifications for workplace dress codes

Employer’s ban on Islamic headscarf potentially direct discrimination

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An employer directly discriminated against a Muslim women who was dismissed for wearing a headscarf at work. This is the opinion of Advocate General Sharpston who recently stated that an employee’s dismissal for wearing an Islamic headscarf, was direct discrimination on the grounds of religion or belief.

 

Ms Bougnaoui, a Muslim design engineer, worked for Mircopole SA in France. Prior to her recruitment she was told that due to her client facing role, she would not always be able to wear her headscarf. A client complained that Ms Bougnaoui had worn her headscarf on a site visit. The client subsequently requested that she should not do so in future. When Mircopole asked Ms Bougnaoui to comply with the request, she refused, and as a result was dismissed.

 

In the opinion of the Advocate General a workplace ban on employees wearing religious clothing, such as a headscarf, is direct discrimination on the grounds of religion. Ms Bougnaoui had been treated less favourably due to religion than a comparator, as another employee who chose not to manifest their religion would not have been dismissed. This is crucial as the Advocate General stated that the directive not only extends to the religion but to the manifestation of that religion (wearing a headscarf), meaning this can amount to direct discrimination. The Advocate General also stated that although the court could treat this as an indirect discrimination case, she considered it to be a direct discrimination case.

 

The ECJ is not bound to follow the Advocate General’s opinion and interestingly in another recent case (Achbita and another v G4S Secure Solutions NV), a different Advocate General came to the opinion that a dress code which included a headscarf ban did not amount to direct discrimination. The ECJ’s decision in these cases is awaited with interest. If the opinion in Bougnaoui is followed, this would represent a move away from the existing approach to how the tribunals distinguish direct and indirect discrimination. In the UK it is generally accepted that dress code requirements can potentially give rise to claims for indirect discrimination, as the requirement to dress in a certain way applies to all employees equally. Employers are able to objectively justify indirect discrimination claims but there is no such defence for direct discrimination. This case illustrates that direct discrimination concepts can be widened to include less favourable treatment on the grounds of a person’s manifestation of their religion, not just their religion. If banning religious clothing is found to be a form of direct discrimination, UK employers will need to carefully re-assess their dress code requirements.

Trials in Absentia

When is it reasonable to proceed with a disciplinary hearing in the employee’s absence?

Trials in Absentia

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If an employee is unable to attend a disciplinary hearing, an employer should consider whether or not it is reasonable to hold the disciplinary hearing in their absence. In a recent case the Employment Appeal Tribunal (EAT) overturned a decision that it had been reasonable to hold a disciplinary hearing despite the employee not being present.

 

The case concerned Dr Aqdas Nabili, a consultant paediatrician, who was suspended from practise due to concerns about performance and patient safety. Dr Nabili breached the terms of her suspension, by working as a doctor for another NHS Trust or organisation without the permission of her employer. She admitted that she had broken the terms but only due to a misunderstanding. As a result of the breach, she was invited to a disciplinary hearing. She was unable to attend the hearing and requested that it be postponed. Initially her employer agreed, but later changed its decision. The hearing went ahead without Dr Nabili or her representative and she was dismissed in the hearing. Dr Nabili brought claims of unfair dismissal that initially proved to be unsuccessful.

 

On appeal, the EAT overturned the tribunal’s decision and identified that the key question, that went unanswered, was whether the employer, at the time of dismissal, acted reasonably in the exceptional circumstances of the case in deciding that her presence would have been futile and could not have altered the outcome. The employer felt that as there was a full investigation and Dr Nabili admitted the breach, it did not think there was anything she could add. The EAT pointed out that the employer did not consider all the circumstances and neglected to appreciate that Dr Nabili may have needed to give evidence in person about the state of her mind. In ignoring these factors, the employer did not act reasonably and the dismissal was unfair.

 

Although there are certain circumstances where a disciplinary hearing can take place without the employee being present, employers must take into account all of the circumstances and consider all of the options before deciding it would be unnecessary for an employee to attend a hearing. This case demonstrates that employers should tread carefully when circumventing the normal procedural safeguards.

Whistleblowing protection for Agency Workers

Clarification on the extent to which agency workers are protected under whistleblowing legislation.

 

 

Whistleblowing protection for Agency Workers

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The Employment Rights Act 1996 (ERA 1996) protects workers from being subjected to any detriment on the ground that they have made a protected disclosure or “blown the whistle” on malpractice. Under section 43K ERA 1996, the usual definition of a worker is extended so that agency workers are afforded whistle blower protection, not only against their employer but also against an end user, if the terms of the contract are substantially determined by the end user, or both the end user and the employer.

 

In McTigue v University Hospital Bristol NHS Foundation Trust, Ms McTigue was an agency nurse who was assigned to work for a hospital trust. Ms McTigue was employed by an agency under a contract of employment, although she had also entered into written terms with the Trust governing the terms on which she was authorised to practise as a nurse at the hospital. These terms included details of supervision arrangements and required her to follow an absence notification procedure and cooperate with the Trust in relation to issues of health and safety and working time. The Trust reserved the right to terminate the contract in certain limited circumstances.

 

Ms McTigue was removed from her assignment in December 2013, and brought detriment claims based on protected disclosures which she had made to the Trust. The employment tribunal at first instance determined that it had no jurisdiction to deal with Ms McTigue’s claim because she did not meet the definition of a worker in relation to the Trust. The Tribunal considered that, in order for Ms McTigue to fall under section 43K ERA 1996, the Trust would have had to determine the majority of the terms, or at least the more significant ones, on which she worked; this test was not met as it found that the agency had determined the majority of the terms on which Ms McTigue provided services to the Trust.

 

The Employment Appeal Tribunal allowed Ms McTigue’s appeal, holding that the tribunal had taken the wrong approach. The purpose of the extended definition of worker was specifically designed to protect agency workers and, as such, the provisions allow for the possibility that both the end-user and the agency employer might substantially determine the terms of engagement. The tribunal erred in failing to consider the possibility that both the agency and the Trust might have determined Ms McTigue’s terms.

 

Damage limitation

Tom Maple considers the extent to which exclusion and limitation clauses are enforceable in commercial contracts.

Damage limitation in commercial contracts

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Most of those reading this will know that when a party breaches a contract, it is obliged to pay damages to compensate the innocent party.

 

However, there are a variety of ways of avoiding, or limiting, that obligation, the most common way being the use of the limitation or exclusion clauses, which, if effective, serve to do what they say, limit or reduce the damages that must be paid.

 

Given the effects of exclusion clauses, they regularly come under the judicial microscope. The most common arguments put forward as to why an exclusion clause should be held invalid are, for example: (i) the clause is unreasonable, (ii) the exclusion was not incorporated into the contract (for example no notice of its existence was given where the exclusion clause was contained in a separate document), (iii) the clause was unclear or ambiguous, or, (iv) the clause does not cover the loss being claimed.

 

Whilst companies often fear that exclusion clauses will be struck out as being unreasonable, that is not necessarily so. Indeed, recent decisions of the courts show that the judiciary are, to quote a recent case, “increasingly willing to recognize that parties to commercial contracts are entitled to apportion the risk of loss as they see fit” (i.e. if the injured party accepted the exclusion clause, they are stuck with it).

 

Whilst there are no guarantees in litigation, if the words are clear and there is no alternative meaning, the court should, all things being equal, give effect to the clause. Put another way, the courts should respect that if the parties agreed, in the contract, to limit or even exclude potentially very significant liabilities, the court should not interfere with that bargain, even where that causes significant prejudice to the innocent party. The fact that the clause is in standard terms and conditions and the innocent party did not see it, is unlikely to be of assistance, even if those terms and conditions are several pages long. You should never sign anything you are not prepared to agree to, and the pitfalls can be serious in circumstances where there is a valid exclusion clause.

 

Those wanting to rely on exclusion clauses should make sure that their intentions are clearly expressed in the contract (i.e. make sure they are drafted by a lawyer and cover all aspects of your business). Before entering into a contract, all parties should make sure they know what they are signing. Further, if you want to make sure your terms of business apply, make sure you trade on those terms, not those of your seller/ buyer (you would be amazed how often a party fails to ensure that this happens – there is a plethora of case law on the issue collectively known as the “battle of the forms”).

 

If you don't like a limitation or exclusion clause, renegotiate or go elsewhere, otherwise you could end up with little more than a pyrrhic victory.