Articles | Employment bulletin February 2013

Every month the employment group considers the latest employment issues that affect both employers and employees.

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Ian Machray

Ian Machray

Save the dates!

Continuing our successful series of breakfast briefings, we wanted to let you have the dates of some other events we will be holding this year:

  • Tuesday 19 March – The art of performance management (Louise Smyth);
  • Tuesday 18 June – "Staff behaving badly" - disciplinary and grievance update (Rachel Tozer); and
  • Tuesday 8 October – Protecting your business from employees, past and present (Jacqueline McDermott).

We will, as usual, be serving coffee and croissants from 8.00am for an 8.30am start at our offices.

We are also linking up with Corporate Health (Occupational Healthcare Specialists) to run a workshop on Drugs and Alcohol in the Workplace - a topic clearly dear to Metropolitan Police Commissioner, Sir Bernard Hogan-Howe's heart. Last week he called for mandatory drug testing to be introduced into work places across the UK, in an effort to curb demand for illegal substances. Will this be the start of a cultural change bringing UK workplaces closer to our American counterparts?

Date: 11 April

Venue: Corporate Health's offices: The Buckingham Centre, 30 Bradford Road, Slough SL1 4PG

If you would like to attend any of the above events, please email Sarah Walker.

 

Religious discrimination? Breach of human rights?

Religious discrimination hit the headlines again last month when the European Court of Human Rights considered a number of cases involving religious conscience. Ms Eweida had claimed against BA and Ms Chaplin had claimed against an NHS Trust, in both cases because their employers had refused to allow them to wear visible crosses at work. Ms Ladele had brought a case against Islington Borough for requiring her to conduct civil partnership ceremonies contrary to her Christian beliefs; and finally Mr McFarlane had claimed against Relate for dismissing him for refusing to provide psycho-sexual counselling to gay and bisexual couples as well as straight couples, when his religious beliefs considered gay sexual activity to be sinful and not something he could endorse.

Ms Eweida's case had generated such adverse publicity for BA that it had changed its uniform policy following consultation with unions. Following this change in policy, staff were permitted to wear crosses and Stars of David, in addition to turbans, Karas (Sikh bangles) and hijabs which were already permitted under the old uniform policy. However, BA had refused to pay Ms Eweida from when she was sent home for breaching the old policy by refusing to conceal her cross to when she returned to work visibly wearing her cross under the new policy, as they had offered her alternative non-customer facing work to which the uniform policy did not apply.

These various claims for religious discrimination in the UK courts had failed, generally speaking because the courts accepted that their employers were able to justify their rules. The claimants all complained that their right to manifest their religions under the European Convention on Human Rights had been breached. The European Court agreed in Ms Eweida's case - a fair balance was not struck between the fundamental right to manifest religious belief and BA's corporate image (although in the event it was a hollow victory in financial terms as the European Court decided she had not suffered financial loss because she had refused the offer of paid non-uniform work). However, in Ms Chaplin's case the NHS Trust's concerns about health and safety and clinical safety were considered to be substantially more important and so the interference with Ms Chaplin's right to wear a visible cross was not a breach of her human rights.

Ms Ladele's and Mr McFarlane's cases involved conflicting fundamental human rights - religious freedom and non-discrimination on the grounds of sexual orientation. The European Court found no breach of Ms Ladele's or Mr McFarlane's human rights and their claims were dismissed.

Although this decision contains much for employers to be pleased about, they should note a word of warning - the European Court's approach to considering the interference with a fundamental human right was much more focused on the individual's desire to manifest her religion in a particular way than the UK courts' approach of considering how a rule affects people of a particular religion generally. Employers, particularly in the public sector, need to be careful about refusing an employee's request to wear, do or not do something on religious grounds where other people of the same religion do not object.

The European Court would, we expect, approve of a recent EAT decision in another religious discrimination case. The employee worked in a children's home. Her contract required her to work on Sundays which her employer eventually sought to enforce. She was a practising Christian who held a religious belief that Sunday should be a day of rest and refused to work on Sundays, for which she was disciplined. The EAT accepted that the employer needed to have an appropriate mix of gender and seniority of staff on each shift, the children needed continuity of care (so temporary staff were not appropriate), all staff needed to be treated fairly and should not have to cover more Sundays so she could have the day off, and the service had to be provided cost-effectively in the face of budget constraints. In these circumstances, the employer could justify its requirement that all of its care workers work on some Sundays. However, it's important to bear in mind that this case does not mean that Christians can always be forced to work on Sundays (despite comments to this effect in some newspapers).

Oops - was that a promise?

It is common for employers to have an Employee Handbook setting out various workplace policies. Such policies are generally not meant to be contractual. However, a recent case serves as a reminder as to just how costly making unintended promises to staff can be.

The Handbook contained a redundancy policy that included a detailed section about enhanced redundancy payments which had been agreed with a works advisory council (on which employees were represented). The enhanced payments were not mentioned in the contracts of employment, but the employer confirmed twice in letters to all staff that the redundancy policy would apply until it was renegotiated. A group of employees were subsequently made redundant while the policy was in place but not paid the enhanced payments. They claimed breach of contract.

The EAT pointed out that the promise in the Handbook could create a contractual obligation. It also found that the letters gave the employees a reasonable expectation that they would receive the enhanced redundancy payments. The employer had historically followed the policy and on this basis the EAT concluded that the policy was contractual.

Employers need to be mindful of how they treat what they consider to be non-contractual policies. If they lead employees to have a reasonable expectation of a payment, they are likely to find themselves legally bound to pay it.

 

Proposed TUPE reforms

As we mentioned in our October e-bulletin, the Government had said that it would consult on proposed changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). The consultation has now opened and is seeking views on the Government's proposals.

The most significant proposal is to abolish the "service provision change" part of TUPE i.e. where TUPE applies in contracting in or out situations and changes from one contractor to another. If this section is repealed the law would go back to the situation where some service provision changes will be caught by TUPE but not all - an ambiguity that TUPE 2006 sought to do away with.

Other proposals include:

  • Repealing the requirement to provide "employee liability information" - i.e. details of the employees who would transfer under TUPE. Practically speaking this would make little difference in a business sale situation where such information will be provided as part of the due diligence process but it will not assist those tendering for contracts which would still be caught by TUPE even if the service provision change section was abolished.
  • Making it slightly easier to vary terms and conditions of employment and slightly restricting the situations in which dismissals will be automatically unfair. The Government is highly constrained by the European Directive as to how far it can go in these respects.
  • Allowing the buyer/new contractor to consult about redundancies before the transfer date. This often happens in practice but can leave the new employer open to claims so this would be a useful and helpful change.
  • Allowing micro businesses to inform and consult directly with their employees rather than through representatives. Again this reflects what often happens but it's unfortunate that the Government is proposing limiting this to employers with 10 or fewer employees.

The consultation closes on 11 April.

End of employment proposals confirmed

We also mentioned in our October e-bulletin that the Government was consulting about changes which would affect the end of the employment relationship. The Government has now confirmed that:

  • It will limit the unfair dismissal compensatory award to the lower of 12 months' salary or the statutory cap (currently £74,200). It's anticipated that this will come into force this summer.
  • Pre-termination settlement offers will be off-the-record as far as unfair dismissal claims are concerned and a new Code of Practice will be introduced.

The Government is also consulting about a new early conciliation process for all tribunal claims. This would require employees to seek settlement via ACAS before they would be allowed to submit a tribunal claim. The consultation closes on 15 February.

 

Sick employees

The Government has announced help for employers dealing with long term sickness absences:

  • Introducing, in 2014, a health and work assessment and advisory service by occupational health professionals for employees who have been on sick leave for four weeks.
  • Publishing revised "fit note" guidance for GPs, to highlight the importance of assessing an employee's health ability to carry out work in general rather than a specific role.
  • Abolishing the statutory sick pay record-keeping obligations so that employers can keep records in a manner that is better suited to them.
  • Considering in the next budget whether costs incurred by employers in keeping sick employees at work (such as rehabilitation) should attract tax relief.

 

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