Articles | Employment bulletin June 2015

This month we look at whether disciplinary proceedings must be suspended to resolve a grievance, the ban on exclusivity clauses in zero-hours contracts and discriminatory uniform requirements.

Contact

Address
1 London Street,
Reading,
RG1 4PN

Telephone
+44 (0)118 951 6200

Email
enquiry@fsp-law.com

David Clay

David Clay

Disciplinary vs Grievance

Do you have to suspend a disciplinary procedure to resolve a grievance?

Disciplinary vs Grievance

read more...


Many employers will have experienced an employee raising a grievance during an ongoing disciplinary process.  The grievance will often relate to events leading up to the disciplinary, or to the handling of the disciplinary procedure itself.  In this scenario, employers are often unsure whether they should press ahead with the disciplinary or deal with the grievance first.

The ACAS code of practice on disciplinary and grievance procedures states that an employer may suspend a disciplinary process to deal with a grievance, or may deal with a disciplinary matter and a grievance concurrently where they are related.  This wording offers little practical help to employers.  However, a recent case in the Employment Appeal Tribunal (EAT) provides some assistance.

The case involved Ms Jinadu, a bus driver, and her employer, Docklands Buses.  Despite a public complaint about her poor driving and CCTV footage capturing her failings, Ms Jinadu repeatedly refused to attend a driving assessment at Dockland’s in-house training centre.  This attitude incensed Dockland’s Operating Manager, and Ms Jinadu was subsequently invited to a disciplinary hearing.  During the disciplinary process, Ms Jinadu made a number of allegations relating to certain managers, including the Operating Manager.  In spite of this, Docklands continued with the disciplinary process and dismissed Ms Jinadu for gross misconduct.

Ms Jinadu brought a claim for unfair dismissal, arguing (amongst other things) that the dismissal was unfair because the disciplinary procedure should have been suspended until her grievances had been resolved.  The EAT rejected this argument outright in a single sentence (although it did find in Ms Jinadu’s favour for other unrelated reasons).

The decision on this point is encouraging for employers as it confirms that there is no ‘default’ requirement to suspend disciplinary proceedings pending the resolution of a grievance in order for a subsequent dismissal to be deemed fair.  However, it should not be taken as a green light to carry on with a disciplinary process regardless of circumstances, as each case will turn on its own facts.  Employers should continue to exercise caution, especially where the grievance is not directly related to the disciplinary proceedings and cannot easily be addressed as part of the same investigative process.

Important employment changes coming into force

Exclusivity clauses finally banned & increased fines for failure to pay minimum wage

Important employment changes coming into force

read more...


In July 2014 we reported on the government’s plans to ban exclusivity clauses from zero hours contracts.  The effect of an exclusivity clause is that a worker is not permitted to work for another employer.  While often included in contracts for permanent employees, the use of exclusivity clauses in zero hours contracts has proved highly controversial as workers are tied-in to one employer without any guarantee that they will be offered sufficient work to support their normal living costs.

The government has finally, with effect from 26 May 2015, acted to outlaw the use of exclusivity clauses, making them unenforceable in all zero hours contracts.  The promised anti-avoidance measures to prevent employers exploiting legal loopholes (such as guaranteeing a small level of work or income so contracts are not affected by the exclusivity ban) are still awaited.  All employers should now review their casual worker and zero hours contracts to ensure compliance with the new provisions.

At the same time, the government have also increased the fines that can be imposed on employers that fail to pay the National Minimum Wage.  Whereas previously the maximum penalty was set at £20,000 per notice to the employer, it now stands at £20,000 per employee paid below the requisite wage.  The change could prove very costly for any defaulting employer who is found to have a number of employees paid under the National Minimum Wage.

Is your dress code discriminatory?

Employer cites ‘health and safety’ to restrict religious dress

Is your dress code discriminatory?

read more...


Broadly speaking, an employer will be liable for indirect discrimination where it has a practice or policy which places employees with a certain religious belief (or other protected characteristic) at a particular disadvantage, which cannot be justified. A recent case before the Employment Appeal Tribunal (EAT) considered whether an employer’s restrictions on workplace dress were discriminatory.

The claimant in the case, Ms Begum, applied for an apprenticeship at a children’s nursery and was invited to attend a half-day trial.  Ms Begum, a Sunni Muslim, wore a flowing, ankle-length jilbab to the trial.  She performed well and was later offered the job at interview.  During the course of that interview she was told that she could not wear clothing that may present a tripping hazard and was asked whether she could wear a shorter jilbab for work.  The nursery expected Ms Begum to begin work soon afterwards, but never heard from her again.  Ms Begum brought claims against the nursery, arguing that its clothing policy amounted to indirect religious discrimination.

The EAT upheld the Employment Tribunal’s finding that the policy of requiring staff not to wear clothing that could present a tripping hazard did not place Muslim women at a disadvantage.  Ms Begum and any other Muslim staff were permitted to wear ankle-length or shorter jilbabs, which were deemed not to pose a hazard.  The nursery had never suggested to Ms Begum that an ankle-length jilbab was not acceptable. Even if the dress code was discriminatory, it was held that it would have been justified as it was proportionate to the legitimate aim of safeguarding the health and safety of staff and children.

While highly fact-sensitive, this decision suggests that there is some flexibility for employers to establish sensible rules on clothing and uniforms where the working environment gives rise to particular health and safety concerns.  Making observations about clothing at interview did not give rise to a detriment in this case, but employers should generally steer clear of enquiries which touch upon religious belief.  Inappropriate questioning could still give rise to a discrimination claim.

What counts as ‘working time’?

...and do your employees get enough rest?

What counts as ‘working time’?

read more...


The Working Time Regulations 1998 (the Regulations) impose a number of limits on a person’s working hours, including the requirement for 11 hours of consecutive rest in any 24 hour period.  ‘Working time’ is defined by a three strand test, all of which must be satisfied to claim the rights provided for in the Regulations.  The employee must be (a) working; (b) at the employer’s disposal and (c) carrying out his activities or duties.  The Employment Appeal Tribunal (EAT) has recently considered the application of this test in practice.

Mr Morgan, a trade union shop steward, and Mr Edwards, an employee health and safety representative, were employed by Encirc Ltd in a glass manufacturing unit. Both employees attended a union representatives meeting during the working day before starting night shifts only 6 hours later.  They each brought a claim for breach of the Regulations on the grounds that they had not been given the requisite time to rest.

The EAT had to consider whether attendance at the meetings was ‘working time’ for the purposes of the Regulations.  It was accepted by all parties that the employees were working, but Encirc argued that the employees were not at its disposal or carrying out its activities or duties.

The EAT disagreed.  It clarified that being at an employer’s disposal did not mean being at the employer’s direction and control.  It was enough that Encirc had required the employees to be in a certain place at a certain time ready to carry out work that was, at least in part, for Encirc’s benefit.  The activities or duties did not have to be contractual duties; it was sufficient that they arose from the employment relationship.  Accordingly, the time spent at the meetings was ‘working time’ and the 11 hour rest break applied.

This decision shows that tribunals are prepared to adopt a broad approach to what qualifies as ‘working time’.  However, the specific impact of the judgment may be limited.  The employees were union representatives (not just mere members), the meetings were at a place set by the employer and the trade union was formally recognised by the employer.  Where different facts apply, tribunals may reach alternative conclusions.  The decision also has no bearing on employers’ separate obligations to allow time off and pay for attendance at such meetings.