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Employment Law Newsletter - March 2017


In this issue ...

  Showing all the signs   Let's see what you actually do...  
  Locked up for good?   Who says?  
  Stacking up   What's the damage?  
  It is better to receive than to give  

Showing all the signs

For the time being at least, the UK's employment law is governed by applicable European Union directives and their interpretation by the European Court of Justice (ECJ). So, the recent ruling of the ECJ in Achbita v G4S Secure Solutions/Bougnaoui v Micropole merits some attention, although with some qualifications.

Featuring references from Belgian and French courts respectively, it concerns the extent to which employers' policies, rules or instructions prohibiting the wearing of religious dress or emblems can be lawful. The ECJ said that a blanket ban, applying to all faiths, could not amount to 'direct' religious discrimination – because anybody dismissed or disciplined for breaching it would not be so treated on account of their particular religion.

That was the easier bit. Some religious groups (Achbita and Bougnaoui were both Muslim women seeking to continue wearing a veil or headscarf) can nevertheless argue that a neutrally-expressed ban has a more negative effect on them in practice and, therefore, amounts to 'indirect' religious discrimination. Acknowledging that position, the ECJ went on to explore when and how an employer might be able to justify that differential effect so as to avoid its policy falling foul of the law. The conclusion was that a desire to present religious neutrality to customers is a legitimate aim of organisations and, so, a blanket ban or instruction about not wearing religious signifiers can be justified if it applies only to staff coming into contact with customers.

Sounds easy? Well, it certainly advances the state of understanding on this tricky subject, but here are the qualifications mentioned earlier. First, there will still be a need for employers to consider redeployment to non-customer contact jobs for staff wishing to display religious affiliations (perhaps even to consider other vacancies for a similarly inclined applicant for a customer-facing role?) before resorting to more drastic action. Secondly, there is the domestic law (which still counts for something in all this, as it provides the detailed rules by which any given case is ultimately determined) – both France and Belgium have constitutional provisions promoting secularism, which may have pushed the ECJ some of the way to its ruling on indirect discrimination, whereas the UK does not. Finally, the relationship of the development of discrimination law, whether from an EU or national perspective, and human rights law will almost invariably arise for consideration. From the sands of time, you may recall the 'British Airways dress policy' case, Eweida v United Kingdom, in which the European Court of Human Rights was more defensive than the UK's tribunals and courts of Eweida's Article 9 right to manifest her religious belief.


Locked up for good?

In October 2016, we last mentioned British Gas v Lock, directly, about including averaged commission earnings in the calculation of holiday pay. On appeal, Lock had also encompassed a challenge to the 'judicial rewriting' of the wording of the WTR to accord with the requirements of the Working Time Directive (first legitimised by Bear Scotland v Fulton, a case which has featured in numerous issues since November 2014).

Last October, the news was that the Court of Appeal (CA) had confirmed that commission pay had to be factored in to holiday pay. Now the news is that the Supreme Court has refused British Gas leave to appeal the CA's decision. So, that's it, unless and until, several years down the road, our good friend Brexit causes a change in the applicable law.


Stacking up

There has been a further flurry of features on the current hot topic, employment status, to join those in the November/December 2016, January 2017 and February 2017 issues.

Following the successes of their Uber and City Sprint counterparts, the drivers/couriers of Deliveroo, The Doctors Lab (DL) and DX are seeking separate rulings that they are workers or, in the DL case, employees and entitled to consequent statutory protections.

Mutuality of obligation is some element of commitment or guarantee by the parties towards each other with regard to the future maintenance of the relationship. In Capita Translation v Siauciunas, the Employment Appeal Tribunal (EAT) has ruled that, under the Equality Act, such mutuality, always vital to a contract of employment with an 'employee', is also relevant to deciding if someone is engaged under a contract 'personally to do work' – basically, a 'worker' under certain other pieces of legislation such as the Working Time Regulations.

If you think that decision seems to be muddying the waters between 'employees' and 'workers', you may be seeing the judicial anticipation of a forthcoming legislative dismantling of the distinction. Certainly, the Business, Energy and Industrial Strategy Select Committee inquiry into the future world of work has recently received submissions from the Employment Lawyers Association and other expert organisations which unanimously advocate that very solution to the unsatisfactory current complexity.

But we are where we are. So, Acas has published brief new guidance on understanding 'new gig economy working'. It is here. And, for a binary world where the intermediate status of 'worker' has never existed anyway, HMRC has issued a 'tool' to help make the choice between 'employed' and 'self-employed' for income tax purposes. It can be found here.


Let's see what you actually do...

TUPE, a hot topic of times gone by, has not appeared in this newsletter for some time. But it has surfaced now. Tees, Esk & Wear Valleys NHS v Harland is about the existence (or not) of a 'service provision change', specifically whether there was an 'organised grouping of employees' still dedicated to the function or service being transferred.

In 2005, a contract was set up for the specialist care of an individual (X) and a group of carers was put together for that purpose. Ten years later, the contract was re-tendered and awarded to another contractor. In the intervening period, X's needs had altered and, so, the group had taken on caring work for others. The EAT ruled that this meant the group no longer had X's care as its 'principal' or dominant purpose, with the result that there could be no SPC allowing the transfer of the members' employments to the new contractor.


Who says?

In Peninsula Business Services v Baker, the claimant asserted that the covert surveillance of him organised by his manager amounted to harassment on the basis of his disability. He had dyslexia, which the employer's occupational health adviser had previously said might amount to a disability under the Equality Act.

The employment tribunal took this as enough, finding in favour of the claimant because 'he may well have been disabled'. But the EAT reversed the decision, ruling that, as the claimant neither definitely had a disability nor was perceived by his employer as definitely having one, the surveillance could not amount to disability harassment.


What's the damage?

When you have claimed £15,000,000 in damages, an award of £14,999,998 less would be a bit disappointing. But £2 was all the wronged employer got in Marathon Asset Management v Seddon, a case about breaching the duty of confidence. The High Court's point was pretty straightforward. While there was no doubt that two ex-employees had breached their duty in copying and retaining their former employer's confidential files, there was no loss resulting from the very limited use (by one of them only) of the data. So it dismissed the employer's contention that, even without its having suffered loss, the two defendants should pay damages equivalent to the estimated commercial value of the information.


It is better to receive than to give

Few contracts of employment go so far as to specify whether notice of termination runs from when it is issued, when it is actually delivered or read, or when it should or is deemed to have been received in the normal course of things. And that point can be important, both for satisfying qualification and limitation periods associated with statutory rights like unfair dismissal and, as in Newcastle upon Tyne NHS Foundation Trust v Haywood, for determining whether a redundant employee is aged 50 on termination so as to qualify for a more generous pension.

So the CA's decision in that case is worth noting. Haywood, already on sick leave following a redundancy consultation meeting, took annual leave and went abroad from 19th to 27th April. On 20th April, the Trust, which knew that she was going abroad although not the precise dates of the holiday, sent her notice of redundancy by letter and by e-mail to her husband's e-mail address. The CA decided that the three months' notice due to her did not start to run until she returned from holiday to find the letter (her spouse's e-mail not being an authorised channel for communicating notice, although he did not open up his e-mail account until 27th April anyway).


Just a quick reminder that Collinson Grant does a lot more than advise clients in all sorts of organisations about the complexities, constraints and opportunities presented by employment law. Our consultants also provide support regularly on: employee relations, reward, restructuring, recruitment, leadership and HR strategy. And we have well-honed skills in operations: managing and reducing costs, organisational design, process improvement, procurement and managerial controls. Do ask if you would like to know more.


If you would like to discuss this or any other issue facing your organisation please speak to your usual contact at Collinson Grant or Peter Howarth on 0161 703 5600

Although care has been taken in the preparation of this Newsletter, Collinson Grant cannot accept responsibility for errors, omissions or advice given. Readers should note that only Acts of Parliament and Statutory Instruments have the force of law and only the courts can authoritatively interpret the law.