Articles | Employment bulletin March 2017

This month we cover bans on religious clothing and symbols, a key development on holiday pay, data subject access requests and further guidance on employment status.

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David Clay

David Clay

Learn how to handle HR issues with confidence

FSP Workshop – Our essential employment law guide

 

Learn how to handle HR issues with confidence

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Are you confident that you, and your managers, have the knowledge to effectively and safely handle workplace issues? Is a failure to effectively manage employees holding back your business?

 

Our one day workshop provides practical training for directors, managers and HR professionals, whether they are new to the role or simply looking to update their knowledge, on dealing with the most common workplace issues.

 

Small groups (a maximum of 8 people) will learn our tips and tricks for dealing with issues in a pragmatic way to minimise the risk of business disruption and litigation. There will be group discussion of real-life case studies derived from our extensive experience.

 

Topics to be covered will include:

 

  • Dealing with disciplinary and grievance investigations, hearings and appeals 
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  • Our top tips on avoiding tribunal litigation

 

The workshops will be held at our recently refurbished offices in central Reading for just £495 plus VAT per attendee. A two-course lunch and an extensive set of helpful notes as a reference tool will be provided.

 

To register your interest please contact Ian Machray at ian.machray@fsp-law.com or on 0118 951 6225 and we will liaise with you to find the next suitable date.

Headscarf ban not directly discriminatory

When can you justify a ban on religious symbols at work?

Headscarf ban not directly discriminatory

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In a case referred to the European Court of Justice (ECJ) by the Belgian courts, Samira Achbita, a Muslim receptionist for G4S, was dismissed for refusing to remove her headscarf at work. The company had a rule prohibiting employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace.

 

The ECJ found that G4S’ rule did not constitute direct discrimination on grounds of religion or belief as all employees, not just Muslims, were required to dress neutrally at work. There was no evidence that the rule was applied differently to Ms Achbita.

 

However, the ECJ noted that it was possible that such a rule could constitute indirect discrimination if persons of a particular religion, such as Muslim women, were put at a particular disadvantage (even though the policy applied equally to all employees). Such indirect discrimination can only be justified if the policy has a legitimate aim and the policy is a proportionate and necessary means of achieving that aim.

 

The ECJ commented that a policy to ensure political, philosophical and religious neutrality in its customer relations would be a legitimate aim, but any ban on visible signs of religious beliefs must also be appropriate and necessary for achieving that aim.

 

In these particular circumstances, the ECJ felt it was important to know whether the policy only applied to customer-facing employees and, if so, whether it was possible and reasonable for Ms Achbita to have been offered an alternative non-customer facing post.

 

Employers will certainly be pleased to note that their employees’ freedom to manifest their religious beliefs does not automatically trump their own freedom to conduct their business and uphold their corporate image. Despite what the extensive press coverage of this case might suggest, the ECJ’s decision does not change the established legal position. Any decision to ban headscarves (or other visible religious symbols) must be carefully considered, as whether such action can be objectively justified will turn on the specific circumstances.

Holiday Pay and Commission 

The waiting game is over 

Holiday Pay and Commission

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Earlier this month the Supreme Court confirmed that it would refuse to hear an appeal in the holiday pay case of Lock v British Gas, bringing to an end one of the most high profile and longest running employment law cases of recent times.

 

As regular readers may recall, this case is about whether holiday pay must include a sum to reflect commission that an employee would have earned had he or she not taken holiday. Mr Lock earned approximately 60% of his pay through commission but his holiday pay was calculated by reference to his basic salary only.

 

After the European Court of Justice clarified that the EU Working Time Directive requires holiday pay to reflect a worker’s normal pay, the Employment Tribunal (ET), Employment Appeal Tribunal (EAT) and Court of Appeal all agreed that the Working Time Regulations could be interpreted as requiring holiday pay to take account of commission (though only in respect of the 4 weeks’ holiday which UK workers derive from the EU Working Time Directive).

 

However, as we reported in October 2016, the Court of Appeal narrowed the scope of the previous ET and EAT rulings by stating that its decision only applied to results-based commission. It also declined to provide any guidance on how employers should calculate the commission element of holiday pay in practice. The Supreme Court’s refusal to allow an appeal means the Court of Appeal’s decision still stands and is unlikely to be overturned any time soon.

 

Employers who were waiting for the Supreme Court to provide a more helpful judgment will now need to take stock of their approach to holiday pay in light of their potential exposure to claims. While the mechanics of calculating holiday payments remains uncertain, the current body of case law has now clearly established employers’ responsibility to ensure holiday pay reflects sums normally received on top of basic salary, including both results-based commission and overtime.

 

Unfortunately, this remains a complex area. Please contact Ian Machray at ian.machray@fsp-law.com or on 0118 951 6225 to have a free initial discussion on your arrangements and any questions you may have.

Do employees have a right to all personal data held by their employer?

How to manage extensive subject access requests

Do employees have a right to all personal data held by their employer?

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Individuals are entitled to know what personal data is held about them by organisations, including their employer. This can be formally requested by a subject access request (“SAR”). If a company fails to adequately comply with an SAR a court has discretion to order the company to take further steps. The Court of Appeal recently considered two cases involving how, and when, this discretion should be used.

 

Mr Ittihadieh had various proprietary interests in a block of flats. Following disputes with the properties’ right-to-manage company and other residents, he made an SAR requesting copies of all documents held by the company, its directors and company secretary.

 

Dr Deer was an ex-employee of Oxford University and had brought a series of claims against them over a period of 8 years. She made two extensive SARs relating to her claims, requesting emails and documents from and to named individuals.

 

In both cases the organisation released some documents but refused to provide full disclosure. The Court of Appeal decided not to exercise its discretion to order either organisation to take further steps to comply. It confirmed that the obligation to search for personal data is limited to a reasonable and proportionate search. Whilst a refusal to respond at all is unacceptable an organisation can reasonably limit the scope of its efforts even if it potentially means not every piece of personal data would be retrieved.

 

The court must also decide if any action is appropriate by balancing the individual’s data access rights against the interests of the organisation. The court may consider:

 

  • whether there is a more appropriate route to obtain the information; 
  • the nature and gravity of the failure; 
  • the reason for the request; 
  • whether the request is an abuse of process, e.g. whether the intention was to obtain copies of documents rather than personal data;
  • the value of the personal data to the individual; and
  • if the individual has previously received the data.


The key point is that when you receive an SAR you do not necessarily have to provide every single document within the scope of the request. You should think carefully, and take legal advice, about what might be a reasonable and proportionate search process in the specific circumstances.

Latest employment status ruling

Translating the law

Latest employment status ruling

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Whether or not individuals are employees, workers or self-employed is currently one of the hottest topics in employment law. As employment status is intrinsically connected to an individual’s legal rights, all employers must bear it in mind in their treatment of their staff, as is highlighted by a recent case in the Employment Appeal Tribunal (EAT).

 

An interpreter, Mr Siauciunas, provided services (to the court service) on an assignment by assignment basis under a framework agreement with Capita Translation. Mr Siauciunas brought a claim against Capita for discrimination on grounds of his race and religious beliefs. This claim relied on him being an employee for the purposes of the Equality Act, which affords protection from discrimination to individuals who are employed “under a contract of employment…or a contract personally to do work”.

 

An employment tribunal (ET) held that Mr Siauciunas was an employee for the purposes of the Equality Act as he was obliged to perform work personally. It determined that consideration of whether ‘mutuality of obligations’ existed between the parties (i.e. the extent to which Capita was obliged to provide work and Mr Siauciunas was obliged to perform work when offered) during the periods in-between assignments was not a relevant factor.

 

Capita appealed the ruling and the EAT allowed the appeal. In reaching its decision the EAT echoed comments in recent employment status cases (such as the Court of Appeal decision in Pimlico Plumbers – read more) that there is no one factor that determines the question of employment status and that it is necessary to adopt a more “holistic” approach, including consideration of mutuality of obligations.

 

The EAT’s decision will be welcomed by employers, as it indicates that claimants will have to do more than simply show an obligation to perform work personally to benefit from anti-discrimination legislation. However, all decisions on employment status will remain fact specific.

 

In practice, employers should seek to avoid arguments over employment status in the context of discrimination by implementing effective equal opportunities policies and training to help ensure the treatment of staff is not tainted by discriminatory reasons.