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Legal Briefings - MH Employment Update

Friday 8 September 2017

Employment Law Bulletin September 2017

Back in 2013 the coalition government introduced Employment Tribunal fees. For the first time, it became necessary for individuals to pay an ‘issue fee’ (to issue a claim) and a ‘hearing fee’ (if the case went to trial). It could cost an individual £1,200 per claim in fees alone to take their employer to a trial at a Tribunal.

UNISON (the union) immediately challenged the introduction of Employment Tribunal fees in court because fees impeded their members’ ability to enforce their rights as employees. Indeed, following the introduction of fees, the number of claims brought by individuals dropped by around 70%. The government won in the High Court and the Court of Appeal but UNISON won in the Supreme Court.

The Supreme Court said that by introducing fees, the government had acted in a way which went beyond the powers granted to it by Parliament. It said that access to justice is fundamental to the rule of law; if laws protecting employees cannot be enforced, the laws are meaningless and become “dead letter”. It said by introducing fees, the government had prevented access to justice in a disproportionate way. The Supreme Court ruled that the requirement to pay fees was void ab initio – as if it had never existed.

The Ministry of Justice will now have to repay fees that it has received to date (said to total around £30m).

Tuesday 25 July 2017

Employment Law Bulletin July 2017

Disability Discrimination

Under s.15 of the Equality Act 2010, it is discrimination for an employer to treat a disabled employee unfavourably because of ‘something’ arising in consequence of his or her disability – unless that unfavourable treatment is justified as a proportionate means of achieving a legitimate aim. For example, an employee who is dismissed because of his or her absence can claim discrimination on the basis that the absence is something that arises in consequence of his or her disability.

In Charlesworth v Dransfields Engineering Services Ltd the employee was a branch manager who was absent for a period of three months while being treated for cancer (which is deemed to be a disability under the Equality Act). While he was absent the employer discovered that the business could be restructured so as to delete the post of branch manager and save costs. When Mr Charlesworth returned to work, therefore, he was told that his post was potentially redundant and, after a period of consultation and consideration of alternatives, he was dismissed.

The Tribunal found that the dismissal was fair and rejected his claim for disability discrimination. While there was no doubt that Mr Charlesworth’s absence from work had provided the employer with the opportunity to assess his role and discover that the business could be run just as effectively without him, that did not mean that he was dismissed ‘because of’ his absence.

Tuesday 27 June 2017

Employment Law Bulletin June 2017

Calculating a Day’s Pay

If someone earns an annual salary – how do you work out a ‘day’s pay’? You might think that this would be a straightforward question – but far from it. Most employment law deals with a week’s pay or – in the case of paid annual leave under the Working Time Regulations – a proportion of a week. To think about a day’s pay you have to refer to the Apportionment Act 1870 – and even then, the answer is not entirely clear.

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.

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