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Legal Briefings - Employment Law Bulletins

Friday 26 May 2017

Employment Law Bulletin May 2017

Indirect Discrimination

Considering that the concept of indirect discrimination was introduced in the mid-1970s, you might have thought that the main issues would have all been sorted out by now. But in two joined cases the Supreme Court has had to set the Court of Appeal right on a couple of key points.

In Essop v Home Office civil servants were required to pass a written test in order to qualify for promotion. An impact assessment revealed that Black and Minority Ethnic (BME) staff were significantly less likely to pass the test than others – although there was no indication as to why that was. A group of them brought an indirect race discrimination claim on the basis that the requirement to pass the test placed BME staff at a particular disadvantage and that the requirement could not be justified as a proportionate means of achieving a legitimate aim. The Court of Appeal held, however, that in order to show that the individual Claimants suffered the same disadvantage as the group of BME staff as a whole, it was necessary to show why BME staff were more likely to fail and that the individual Claimants had failed the test for the same reason.

In Naeem v Ministry of Justice the issue was the pay of prison chaplains. Muslim chaplains, on average, earned less than Christian chaplains. This was because their pay scale was based on length of service and Muslim chaplains – who had only been recruited since 2002 – tended to have shorter service than their Christian counterparts. The Court of Appeal rejected claims of indirect discrimination based on religion or belief on the basis that it was clear that the reason – length of service – that Muslim chaplains were placed at a disadvantage was nothing to do with their religion.

Tuesday 25 April 2017

Employment Law Bulletin April 2017

Religious Dress in the Workplace

Whatever you might have read elsewhere, the Court of Justice for the European Union has categorically not ruled that employers are allowed to ban the wearing of Islamic headscarves in the workplace. But what the Court does say in the case of Achbita v G4S Secure Solutions NV is controversial enough. The employer was a contracting company operating in Belgium and Ms Achbita was employed as a receptionist working for its clients. She is a Muslim, but for three years complied with an unwritten rule that employees should not wear visible signs of their religious, philosophical or political beliefs in the workplace. Back in 2006, however, she informed her employer that she would be coming into work wearing a headscarf. The employer adopted the formerly unwritten rule into its workplace regulations and dismissed her.

Thursday 16 March 2017

Employment Law Bulletin March 2017

New Trade Union Act

The major provisions of the Trade Union Act 2016 came into force on 1 March, 2017. This means that from now on industrial action ballots will only be lawful if at least 50 per cent of those being balloted cast a vote. Where the majority of those being balloted are engaged in ‘important public services’ then there is an additional requirement that at least 40 per cent of those entitled to vote, vote ‘yes’. That means that if there are 100 union members (let’s keep the maths simple), then a 26-25 vote in favour of industrial action will be sufficient in most cases but a 40-10 vote (or better) will be needed in cases involving those key services.

Tuesday 31 January 2017

Employment Law Bulletin January 2017

Is Work-Related Stress a Disability?

Stress is one of the most common cause of absence for workers and stress-related employee illness is a very significant issue for many employers.  But does “stress” count as a disability for the purposes of the discrimination legislation?

As the recent case of Herry v Dudley Metropolitan Borough Council illustrated, the answer is “not necessarily”.

Mr Herry brought a large number of allegations of race and disability discrimination against his employer. He claimed two disabilities: dyslexia and stress – conditions that many employers will recognise as being both common and difficult to assess in practice. The employment tribunal dismissed the claims and imposed a heavy costs award against Mr Herry as he had repeatedly been warned that his claim had no reasonable prospect of success.  The disability discrimination claims were rejected as he had failed to show that either his dyslexia or his stress had “a substantial adverse effect on his ability to carry out day-to-day activities” – this is one of the key requirements for a condition to qualify as a disability under the relevant legislation.

Mr Herry appealed – unsuccessfully – to the Employment Appeal Tribunal (EAT).  The EAT noted that the Mr Herry’s stress was “very largely the result of unhappiness about what he perceived to be unfair treatment of him” rather than an illness that would qualify as a disability. It also said that “unhappiness with a decision or a colleague, or a tendency to nurse grievances or a refusal to compromise, are not of themselves mental impairments”.

Tuesday 22 November 2016

Employment Law Bulletin November 2016

Rocky Times Ahead For The Gig Economy?

There has been a lot of attention in the media recently about the so-called gig economy, that is, the method of working in which temporary positions are common and organisations contract with independent workers for short-term engagements, as opposed to the traditional employment model. Two recent news items have highlighted the considerable unrest and legal uncertainty in this sector.

App-based taxi provider Uber hit the headlines at the end of October when an employment tribunal held that two of its drivers were not self-employed contractors as Uber claimed, but were ‘workers’. This meant they are entitled to the national minimum wage, paid annual leave and whistleblower protection. Uber’s arguments that it is merely a technology platform as opposed to a transport provider and that its drivers are self-employed contractors offering their services to passengers via the Uber app were rejected comprehensively.

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