Articles | Employment bulletin January 2014

Happy New Year from FSP’s employment team! In our first bulletin of 2014, we look at changes expected this year and reflect on significant cases from the end of last year.

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Ian Machray

Ian Machray

Breakfast Briefing

14 January 2014 - Breakfast briefing

Ian Machray will be discussing the key changes anticipated in employment law in 2014 such as:

  • TUPE changes coming in this month;
  • new requirement to seek to conciliate claims before issue;
  • financial penalties on employers who lose tribunal claims;
  • extension of flexible working rights;
  • new health and work assessment advisory service;
  • planned outlawing of caste discrimination.

Time permitting; Ian will briefly mention key cases on appeal and matters under consultation.

Croissants will be served at 8.00am for an 8.30am start at our office.  If you have not already booked your place, please email Sarah Walker.

Religious Discrimination and Sunday Working

Some working environments, such as children’s care homes, need staff coverage 24/7.  Unsurprisingly, employers responsible for such businesses usually reserve themselves considerable flexibility over working hours in the contracts of employment.  Against this background, conflicts arise if employees refuse to work on Sundays on the basis of their religious beliefs.

In a recent case, a care assistant refused to work on Sundays as she has a deep and sincere belief that Sunday is a day of worship and she is forbidden to work on Sundays by the Fourth Commandment.  The Council required her to work on Sundays in accordance with her contractual obligations.  She was disciplined and then resigned alleging religious discrimination.

This case is a good example of the confusion in the current state of the law particularly the inter-relationship between the Equality Act and the European Convention on Human Rights (“ECHR”).  The Equality Act leads tribunals to consider whether there is a form of “group disadvantage” with the particular belief being a “core component” of the relevant religion; whereas the ECHR focuses simply on whether the employer can justify not accommodating the particular employee’s religious beliefs. 

From a practical perspective, most cases are actually decided on the question of justification (ie in this case whether the requirement to work on Sundays was a proportionate way of achieving the legitimate aim of ensuring proper care for the children).  This case reminded us that supportive action from an employer such as not requiring the assistant to work on Sundays for the first 2 years of her employment and then agreeing to arrange her Sunday shifts so that she could go to church are not actually relevant to justification.  The fundamental point was that there was no viable or practicable alternative way of running the care home effectively and therefore the assistant was not discriminated against because of her religious beliefs.

ACAS Code: companions at disciplinary hearings

You may remember that we reported last August that the EAT had concluded that the ACAS Code of Practice gave incorrect guidance about an employee’s right to be accompanied at disciplinary/grievance meetings and particularly their choice of companion.

ACAS has launched a consultation on their proposed changes to relevant sections of their Code.  The proposals retain the ‘good practice point’ that workers should have some regard to the effect that their choice of companion will have on the disciplinary or grievance process itself, whilst at the same time allowing them the freedom to choose whoever they like as a companion (provided they fall within one of the defined categories of colleague and trade union representative/official).  The effect is to discourage, rather than prevent, workers from requesting colleagues based a long way away and colleagues who may have a conflict of interest.

Clawing back training and recruitment costs 

Where employers incur costs training their employees they often seek to require repayment of those costs if the employee leaves within a short period of time of the training.  Questions can arise as to whether such claw back or repayment clauses are enforceable as genuine pre-estimates of loss to the employer or unenforceable as penalty clauses.

In a recent case an employee relocated from Poland to Britain to work for her employer as a care worker.  Her employer paid recruitment fees and for her flights. Her contract stipulated that these costs would be repayable in full if she resigned or was dismissed for gross misconduct within the first 6 months.  She was dismissed after 12 weeks and deductions to cover these costs were made from her pay.  She claimed they were unlawful deductions as a penalty.  She lost.

Repayment clause may be enforceable.  The relevant question is whether, at the time the contract was signed (not when the employee left), the purpose of the repayment clause was, objectively speaking, to predict the loss that the employer would suffer or to penalise the employee.  Although the tribunal will not expect employers to specify exactly the same figure that they would recover if they sued for breach of contract, a repayment clause should not refer to a fixed sum which is “extravagantly wide of that mark”. 

It is common practice to see a sliding scale of the proportion of the costs that have to be repaid over time which reflects the benefit to the employer of the employee working during that period.  We therefore recommend including a sliding scale and most importantly recording the reasoning for the specified figure and why that reflects the likely loss to the business.

Protection for political beliefs?

Several years ago the EAT confirmed that belief in climate change could be a philosophical belief protected by the Equality Act.  To date employees have been unsuccessful in seeking to persuade Tribunals that political belief should also be considered a philosophical belief worthy of protection.  However, a tribunal has now accepted that Labour party member’s belief in “democratic socialism” should be considered a philosophical belief.

The employee worked for the Department of Work and Pensions as a benefit advisor in a job centre.  He stood as a councillor without having obtained management approval to such political activity in accordance with DWP procedures.  He was dismissed for gross misconduct.  He claimed unfair dismissal and discrimination because of his beliefs.  The tribunal was keen to point out that merely being a member of a political party will not be sufficient.  The employee in this case had strong belief in Labour’s core values which influenced the way he conducted his life.

How to decide if an employee is disabled

Employers are encouraged to take appropriate medical advice when seeking to establish if an employee is disabled, but should they then wholly rely on the advice? 

The employee in a recent case was off work initially with work-related stress; at the time the occupational health adviser concluded that there were no signs of clinical depression.  On the other hand, the employee told his employer that his GP had diagnosed him as suffering from depression (which was subsequent noted on his fit notes).  After almost a year of absence, during which time he was treated with anti-depressants, the occupational health (OH) physician stated, without explanation, that he did not think that the employee was disabled.

The courts concluded that the employee was disabled.  The question was whether the employer knew of the disability (as the duty to make reasonable adjustments only arises when the employer has knowledge of the disability).  The Court of Appeal (CA) concluded that the employer could not unquestioningly adopt the OH unreasoned opinion.  The CA was highly dismissive of the OH’s view, stating that the opinion was “worthless” as it did not comment on the 4 elements which make up the definition of disability.  The employer has to make its own decision as to whether or not the employee is disabled.  Employers should therefore ask detailed practical questions of medical advisers so that they can use the answers to reach their own conclusions.