Greetings from the last employment update before the referendum on EU membership. The employment law world may be a very different place on June 24, or it may not, depending on which way the vote goes. If we do vote to leave, then there will be interesting times ahead from an employment law perspective, given how much of our legislation is derived from the EU. Whether this would mean immediately abandoning wholesale great swathes of EU-based law (TUPE? Discrimination legislation? Working Time Regulations?) is doubtful, to say the least, but there would surely be an uncertain time ahead given the opportunities for legislating outside the strictures of the EU and the fact that governments of all hues seem to find it hard to resist changing employment law, given half a chance. We will leave it to you to decide whether this would be a good thing for anyone other than employment lawyers…
Disability and Reasonable Adjustments
The duty to make reasonable adjustments in respect of a disabled employee arises when the employer applies a ‘provision criterion or practice’ (or “PCP”) which puts the employee at a disadvantage when compared with employees who are not disabled. The duty is then to take such steps as it is reasonable to take in order to remove the disadvantage or to prevent it from arising. But how formal does a PCP need to be to qualify for these purposes?
In Carreras v United First Partners Research, the employee worked as an analyst in a high-pressured commercial environment, usually working between 11 and 12 hours a day. After a cycling accident, however, he was unable to work such long hours – suffering from a number of on-going symptoms such as dizziness and tiredness. No special provision was made for him and he eventually left, claiming that the employer had failed to make reasonable adjustments.
The Tribunal found that there was no actual requirement on him to work such long hours – although there was an expectation that he would work late on at least two days in the week. He was concerned that if he did not work late then he would lose his bonus or be made redundant, but the Tribunal held that there was no specific evidence that this would happen and dismissed that part of his claim.
On appeal, the EAT held that the fact that the employee was not coerced or forced into working long hours did not mean that there was no ‘requirement’ for him to do so. In the real-world context of this job it was perfectly possible for the employer’s expectation of the employee’s working hours to amount to a ‘requirement’. The question of reasonable adjustments was accordingly sent back to the Tribunal.
This is not great news for employers, since they may be found to be imposing PCPs – and so be under a duty to make reasonable adjustments – without realising it.
Safeguarding and Discrimination
For those employers in the health, care and education sectors nothing is more important than their duty to safeguard the welfare of children and vulnerable adults. But a highly cautious approach to such issues can bring them into conflict with employment law. In Pendleton v Derbyshire County Council, a teacher with long and unblemished service was dismissed after her husband (who was a headteacher) was convicted of offences involving indecent images of children and taking photographs of children in the changing rooms. The teacher felt that her Christian beliefs required her to remain with her husband provided he had genuinely repented his conduct. However, the school took the view that in refusing to leave her husband, the teacher had undermined trust and confidence and acted contrary to the ethos of the school.
The Tribunal found that the dismissal was unfair. There were no grounds to believe that the teacher posed any risk to children or, indeed, had done anything wrong at all. The Tribunal did, however, reject her discrimination claim, which was based on her assertion that her Christian beliefs meant that requiring her to choose between her marriage and her career amounted to indirect discrimination.
On her appeal, the EAT found that the employer did have a policy of dismissing any employee who elected to stand by their spouse or partner in these (highly unusual) circumstances. It was not an answer to the discrimination claim that many people who were not religious would also be disadvantaged by the policy. The issue was whether people who shared the employee’s religious beliefs were likely to be particularly disadvantaged. Had the right question been asked by the Tribunal, there was only one conclusion that they could have reached. Those for whom leaving their spouse would conflict with their religious beliefs would indeed suffer a particular disadvantage and – since there was no evidence that such a policy was justified – it followed that the indirect discrimination claim should also have succeeded.
The claimants in Hottak v FCO were Afghan nationals employed as civilian interpreters working for the British Armed Services at a British compound in Afghanistan. They claimed that they had been subjected to race discrimination because the benefits they were offered – particularly with regard to their potential resettlement in the UK when their work ended – were less favourable than those offered to their equivalents recruited in Iraq. The key question was whether – as Afghan nationals, recruited and working in Afghanistan – they had any right to the protection of the Equality Act.
The Court of Appeal sad that the issue was the extent to which their employment had a connection with the UK. The claimants argued that they were recruited by the British Armed Services and worked in what was effectively a British enclave. However the Court held that this was not enough. They had not simply been posted to Afghanistan, they lived there and always had done. They had no connection with the UK other than the nationality of their employer and this was not enough to being them within the scope of UK employment law.
In any event they would have struggled to establish a discrimination claim. The less favourable resettlement terms they were offered were not based on nationality but on the very different security situations prevailing in Iraq and Afghanistan, which affected the level of risk to which the employees were exposed and the measures that could realistically be taken to protect them.
While much of our employment law has a European dimension, it is worth noting that different member states have very different systems of industrial relations. For example, the French Government is currently introducing a law which will give individual companies more freedom to reach individual deals with unions without being bound by sector-wide collective agreements and will allow large companies to make redundancies if they can show three successive quarters of falling revenues. Even with these reforms, of course, the French labour market will remain subject to a level of regulation that is simply inconceivable in the UK.
Nevertheless the French unions are not taking the changes lying down. Strikes are taking place on the railways and are likely to spread to the Paris Metro and civil aviation. Oil refineries have been closed down and there is the risk of a nationwide fuel shortage. There is talk of a possible threat to the smooth running of EURO 2016.
We should remember France the next time we read scare stories about union hardliners in the UK. The Trade Union Act (which has now received Royal Assent) was strongly opposed by the trade union movement – although their opposition did little to dent the progress of the Bill and made very few headlines. In France – when a trade union opposes a change in employment law – the whole continent gets to hear of it.