Monday, 1 August 2016

AUGUST EDITION EMPLOYMENT LAW NEWS

My periodic newsletter on all things employment law related that I think you should be aware of.
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Hello  dear readers ,

It does seem a little early to be having a "round-up" of employment news,  we usually expect this in the December issue, but, there is such a lot happening this year, that there will be another 5 next month,  and it's only August!  I do prefer to try and keep the December issue a little more light hearted if possible.    The Muslim headscarf item,   I'm not just rehashing an old story, there has been a development, that completely reverses the opinion in the news item in June.  It is quite a read, but does go into some depth and takes the contrary view to the Advocate General.

            Read on for details, and, as always, call me or mail me if you have any concerns or need more information about this edition's content.

Kind regards,     Paul 
 

First The News:
 
Is it unlawful to ban a Muslim employee from wearing her Islamic headscarf when in contact with clients? 


Yes, advises the CJEU's Advocate General in the French case of Bougnaoui v Micropole SA.

Ms Bougnaoui was employed by Micropole SA as a design engineer. She was a practising Muslim and wore an Islamic headscarf (hijab) at work and when she visited clients. The headscarf covered her head but left her face exposed. Following a complaint from a client, who requested that there should be "no veil next time", Ms Bougnaoui was asked not to wear her headscarf when visiting clients. She refused to do so and was subsequently dismissed.

The French Labour Tribunal dismissed Ms Bougnaoui's claim for discrimination based on her religious beliefs and held that the dismissal was well founded on the basis of a "genuine and serious reason". This decision was upheld on appeal.

The matter was then referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling on whether Micropole's policy requiring an employee to remove her hijab when in contact with clients was a "genuine and determining occupational requirement" under Article 4(1) of the Equal Treatment Directive (2000/78/EC).

Advocate General Sharpston concluded that Ms Bougnaoui's dismissal for wearing a hijab when in contact with customers of the employer's business, in contravention of a direct instruction and a client's religious neutrality principle constituted unlawful direct discrimination on the grounds of religion or belief. Further, the Advocate General stated that the prohibition on direct discrimination extends to manifestations of religion or belief (that is to say, the fact that Ms Bougnaoui wore a headscarf) and it was clear that she had been treated less favourably on the ground of her religion than a comparator would have been treated in a comparable situation.

 

My comment:   Regular readers (bless you)  will recall this piece from a couple of months ago, which said the exact opposite, it just shows you the mercurial state of our employment laws, when tied in with the EU!  

read the full piece on my blog page
 
 
 
Newsflash:  
Five important employment law cases in 2016… and five more to come

So far in 2016, there have been notable employment law cases on: holiday pay; childcare vouchers; social media at work; fraudulent sick leave; and reasonable adjustments for disabled people.
1. Commission in holiday payLock and another v British Gas Trading Ltd (No.2) (EAT)
This Employment Appeal Tribunal (EAT) decision is the latest in a long line of cases on how employers should calculate holiday pay.
The EAT agreed with the employment tribunal that the Working Time Regulations 1998 can be interpreted to require employers to include a worker’s commission payments in the calculation of his or her holiday pay.
The case went to the Court of Appeal and was heard on 11 July 2016. The Court of Appeal judgment is awaited.

2. Childcare vouchers during maternity leave

Peninsula Business Services Ltd v Donaldson (EAT)
HM Revenue & Customs (HMRC) advice has traditionally been that it is unlawful for an employer to make the suspension of childcare vouchers scheme membership during maternity leave a prerequisite of joining.
Official HMRC guidance stated that “non-cash benefits, such as childcare vouchers that can be used only by the employee and are not transferable…must continue to be provided during ordinary maternity leave and additional maternity leave”.
Peninsula’s childcare vouchers scheme was the subject of a legal challenge because its scheme requires employees to agree to suspend their membership during maternity leave.
An employment tribunal decision that Peninsula’s childcare vouchers scheme was discriminatory was overturned by the EAT. The EAT found that employers that make deductions from an employee’s salary in return for childcare vouchers do not have to continue to provide the vouchers during maternity leave.

3. Monitoring employees’ social media

Barbulescu v Romania (ECHR)
In this Romanian case, the European Court of Human Rights (ECHR) examined the scope of employees’ right to a private life in relation to social media activity.
An engineer who was dismissed for using Yahoo Messenger to chat with his family, as well as professional contacts, challenged his employer’s actions as a breach of the European Convention on Human Rights.
However, the ECHR held that the employer’s actions were justified because it was seeking to verify that the employee was using his work computer and social media account for work purposes only.
This case will now go to the ECHR’s Grand Chamber. The hearing is scheduled to take place on 30 November 2016.

4. Misconduct dismissal for “pulling a sickie”

Metroline West Ltd v Ajaj; Ajaj v Metroline West Ltd (EAT)
This case provides a valuable recap for employers that suspect that an employee is faking illness.
The EAT affirmed that an employee who makes up, or exaggerates the effects of, an injury or illness to take fraudulent sick leave is fundamentally breaching the implied term of trust and confidence and can be dismissed for misconduct.
This case reiterates for employers that “pulling a sickie” is a misconduct, rather than a capability, issue. This means that a dismissal for fraudulent sick leave must be based on reasonable grounds, following a reasonable investigation.

5. Reasonable adjustments for disabled people

Carreras v United First Partners Research (EAT)
When considering the duty to make reasonable adjustments, employers need to pay particular attention to disabled workers’ hours of work.
In this case, the disabled employee believed that he was disadvantaged because there was an expectation in his workplace that employees work late, even though there was no strict requirement to do so.
In upholding the reasonable adjustments claim, the EAT held that working late does not have to be presented as an instruction to cause a disadvantage.
In practice, workplaces can put pressure on employees to conform, even if there is no written rule or direct management instruction.

My comment:  As ever,   my thanks to Personnel Today for the source material,  and next month part two of the piece ,  5 more cases we expect to hear in 2016   see them at

read full details on my blog page 

 

 

Download of employee pay rates,  NMW, "living wage" and other benefit entitlements:


Additionally:
In you need further in depth help working out what exactly counts as minimum wage,  the DBIS has produced this 55 page guide,

"Calculating the minimum wage"     
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Health& Safety Myths

A light hearted look at some of the idiotic things we hear.
MYTH:  
Supermarket cafe refused to sell customer a packet of fruit bread for health and safety reasons as he didn’t want it toasted before taking it home.

Panel opinion

There is nothing in health and safety at work legislation that prevents the sale of fruit bread nor should there have been a food labelling issue here. It is a pity that a “health and safety” excuse was used to refuse such a simple request. This appears to be a case of poor staff training resulting in a very disappointed customer.

MYTH  
 
A dog was not allowed in to a hire car for ‘health and safety reasons’. The owner was also told that the garage concerned does not like dog hairs in courtesy/hire vehicles.

Panel opinion

Health and safety at work legislation does not prohibit the carriage of pet dogs in vehicles used for domestic use. The company has taken a decision to exclude carriage of dogs in courtesy/hire cars for cleanliness reasons. The company should be transparent about the real reason for inclusion of the clause in their contracts rather than use the catch all excuse of ‘health and safety’.
 
 


Issue

Enquirer called into a high street store to purchase some lunch and asked if they had any plastic knives and forks for sale. The assistant said yes they had forks but due to Health & Safety were not allowed to provide plastic knives.

Panel decision

Health and safety at work regulations do not prohibit the provision of plastic knives to customers. Clearly, knives and forks used for eating carry a small risk in the same way that any sharp object does, however it is absurd to suggest that we should not use them. By citing health and safety as the reason for not providing plastic knives, the company trivialises real health and safety risks in the workplace. The real reason for their decision should be explained instead of hiding behind health and safety.

 The information contained in these pages is an HR overview and not intended to be comprehensive legal advice, always seek specific qualified advice before taking any action that could lead to litigation.   Equally, were we have provided links to external web pages, we are not responsible for the content of other sites.

Is it unlawful to ban a Muslim employee from wearing her Islamic headscarf when in contact with clients?


Yes, advises the CJEU's Advocate General in the French case of Bougnaoui v Micropole SA.

Ms Bougnaoui was employed by Micropole SA as a design engineer. She was a practising Muslim and wore an Islamic headscarf (hijab) at work and when she visited clients. The headscarf covered her head but left her face exposed. Following a complaint from a client, who requested that there should be "no veil next time", Ms Bougnaoui was asked not to wear her headscarf when visiting clients. She refused to do so and was subsequently dismissed.

The French Labour Tribunal dismissed Ms Bougnaoui's claim for discrimination based on her religious beliefs and held that the dismissal was well founded on the basis of a "genuine and serious reason". This decision was upheld on appeal.

The matter was then referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling on whether Micropole's policy requiring an employee to remove her hijab when in contact with clients was a "genuine and determining occupational requirement" under Article 4(1) of the Equal Treatment Directive (2000/78/EC).

Advocate General Sharpston concluded that Ms Bougnaoui's dismissal for wearing a hijab when in contact with customers of the employer's business, in contravention of a direct instruction and a client's religious neutrality principle constituted unlawful direct discrimination on the grounds of religion or belief. Further, the Advocate General stated that the prohibition on direct discrimination extends to manifestations of religion or belief (that is to say, the fact that Ms Bougnaoui wore a headscarf) and it was clear that she had been treated less favourably on the ground of her religion than a comparator would have been treated in a comparable situation.

The Advocate General added that discrimination would only be lawful if based on an "occupational requirement", which must be "genuine" and limited to matters which are absolutely necessary in order to undertake the professional activity in question. For example, it would be proportionate to exclude, for health and safety reasons, a Sikh employee who insisted on wearing a turban for religious reasons from working in a post that required the wearing of protective headgear.

The decision is in sharp contract to the opinion of Advocate General Kokott in Achbita v G4S Secure Solutions NV [2016] (Case C-157/15), which concluded that prohibiting the wearing of a headscarf can be justified by an employer's general policy of neutrality and where the ban applied consistently to all visible signs of religious or philosophical beliefs.

Readers will be aware that the Advocate General's opinion is merely an opinion and is not binding on the CJEU, which could reach a different conclusion.


MY COMMENT :  Regular readers will recall my article on this in JUNE,     which said the exact opposite, do remember that was the opinion of Advocate General,   and not binding,    this report is of an actual finding.
read more the excellent Daniel Barnett site  ,  and my thanks for their well written item.

Five important employment law cases in 2016… and five more to come


We round up five significant employment law decisions that have been made so far this year, and look at five more important judgments expected before the end of 2016.

Top five employment law cases in 2016

So far in 2016, there have been notable employment law cases on: holiday pay; childcare vouchers; social media at work; fraudulent sick leave; and reasonable adjustments for disabled people.

1. Commission in holiday pay

Lock and another v British Gas Trading Ltd (No.2) (EAT)
This Employment Appeal Tribunal (EAT) decision is the latest in a long line of cases on how employers should calculate holiday pay.
The EAT agreed with the employment tribunal that the Working Time Regulations 1998 can be interpreted to require employers to include a worker’s commission payments in the calculation of his or her holiday pay.
The case went to the Court of Appeal and was heard on 11 July 2016. The Court of Appeal judgment is awaited.

2. Childcare vouchers during maternity leave

Peninsula Business Services Ltd v Donaldson (EAT)
HM Revenue & Customs (HMRC) advice has traditionally been that it is unlawful for an employer to make the suspension of childcare vouchers scheme membership during maternity leave a prerequisite of joining.
Official HMRC guidance stated that “non-cash benefits, such as childcare vouchers that can be used only by the employee and are not transferable…must continue to be provided during ordinary maternity leave and additional maternity leave”.
Peninsula’s childcare vouchers scheme was the subject of a legal challenge because its scheme requires employees to agree to suspend their membership during maternity leave.
An employment tribunal decision that Peninsula’s childcare vouchers scheme was discriminatory was overturned by the EAT. The EAT found that employers that make deductions from an employee’s salary in return for childcare vouchers do not have to continue to provide the vouchers during maternity leave.

3. Monitoring employees’ social media

Barbulescu v Romania (ECHR)
In this Romanian case, the European Court of Human Rights (ECHR) examined the scope of employees’ right to a private life in relation to social media activity.
An engineer who was dismissed for using Yahoo Messenger to chat with his family, as well as professional contacts, challenged his employer’s actions as a breach of the European Convention on Human Rights.
However, the ECHR held that the employer’s actions were justified because it was seeking to verify that the employee was using his work computer and social media account for work purposes only.
This case will now go to the ECHR’s Grand Chamber. The hearing is scheduled to take place on 30 November 2016.

4. Misconduct dismissal for “pulling a sickie”

Metroline West Ltd v Ajaj; Ajaj v Metroline West Ltd (EAT)
This case provides a valuable recap for employers that suspect that an employee is faking illness.
The EAT affirmed that an employee who makes up, or exaggerates the effects of, an injury or illness to take fraudulent sick leave is fundamentally breaching the implied term of trust and confidence and can be dismissed for misconduct.
This case reiterates for employers that “pulling a sickie” is a misconduct, rather than a capability, issue. This means that a dismissal for fraudulent sick leave must be based on reasonable grounds, following a reasonable investigation.

5. Reasonable adjustments for disabled people

Carreras v United First Partners Research (EAT)
When considering the duty to make reasonable adjustments, employers need to pay particular attention to disabled workers’ hours of work.
In this case, the disabled employee believed that he was disadvantaged because there was an expectation in his workplace that employees work late, even though there was no strict requirement to do so.
In upholding the reasonable adjustments claim, the EAT held that working late does not have to be presented as an instruction to cause a disadvantage.
In practice, workplaces can put pressure on employees to conform, even if there is no written rule or direct management instruction.

My comment:  As ever,   my thanks to Personnel Today for the source material,  and next month part two of the piece ,  5 more cases we expect to hear in 2016   see them at

PULLING A SICKIE JUST GOT MORE DANGEROUS

Pulling a sickie just got more dangerous - Lydia Banerjee on Ajaj v Metroline West Ltd.

For many the idea of ‘pulling a sickie’ is neither shocking nor worthy of news. A sore head from the night before, tickets to an exciting event, even a sense of entitlement to some sick days each year are familiar rationales offered as employees put on their best ‘sick voice’ and croak their apologies down the phone to their employer.
Employees beware.    
The EAT in Ajaj v Metroline West Ltd (UKEAT/0185/15/RN) has found "An employee "pulls a sickie” is representing that he is unable to attend work by reason of sickness. If that person is not sick, that seems to me to amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship”. In other words ‘pulling a sickie’ is potential grounds for gross misconduct.
In the case in question Mr Ajaj claimed to have experienced a fall at work resulting in a prolonged period of absence. Over the course of the absence management process the employer grew suspicious of Mr Ajaj’s claims in relation to the extent of his injuries and arranged for covert recordings of him to take place. In the recordings Mr Ajaj’s movements and actions seemed to contradict the account that he was giving to both his employer and occupational health. Metroline West Ltd decided that Mr Ajaj’s actions amounted to potential gross misconduct and commenced disciplinary proceedings.
The EAT supported Metroline West Ltd’s decision to dismiss Mr Ajaj for gross misconduct based on the findings of the Tribunal that the company genuinely believed that Mr Ajaj had (i) obtained or claimed sick pay by fraudulently representing to be sick when he was not; (ii) misrepresenting his ability to attend work at review meetings and with the occupational health doctor and (iii) exaggerated his condition or deliberately attempted to defraud the company with a claim of injury at work that was exaggerated. The Tribunal also concluded that these matters related to conduct giving a potentially fair reason for dismissal. From this point the Tribunal moved into error substituting their view for that of the employer and giving rise to the issues in the appeal.
The facts of the case may not be a classic "pulling a sickie” scenario but the view of Mrs Justice Simler in the EAT will be repeated by many an employer and employees ought to be wary.
That said before employers begin dismissing employees whom they suspect have been "pulling a sickie” it is worth remembering that the legal test for unfair dismissal has not changed. An employer will still need to satisfy the requirements of BHS v Burchell [1978] IRLR 379.
Covert recording will not be an appropriate step for many businesses but an employer will need to show that they have reasonable grounds for believing the employee to be guilty of the misconduct alleged following a reasonable investigation. Simply thinking someone didn’t sound ill on the phone is unlikely to be enough. Facebook posts, status updates and ‘check-in’ at various locations may well be part of the picture of where and how an employee spends their sick day. Employers will need to make sure that their social media policies are up to date and allow for this sort of information to be accessed and relied upon.
If a business has a particular problem with employees taking sick days improperly then it might be argued that there is a culture of tolerance towards such conduct. In this situation an employer may need to consider communicating a new approach to sickness absence prior to taking action against employees. To do otherwise risks any dismissal being outwith the band of reasonable responses.


So the health warning of Ajaj v Metroline West Ltd is for both employers and employees.
Metroline West Ltd were represented at the EAT by Adam Solomon of Littleton Chambers.