FJG Employ....

One man's theology is another man's belly laugh

A recent case has come to the attention of national newspapers and highlights the chasm that resides in between the Tribunal decisions based on religious discrimination re: Christianity and the decisions based on, well, just about any other religion.

 

Celestina Mba raised a claim against Merton Council because they denied her the right to have Sundays off work so that she could recognise the Sabbath.  This is the most recent case claiming religious discrimination whose outcome have not gone in Christianity's favour.   It may well be that when tested in the Tribunal Christianity is not as rigid as the Tribunal 'needs' it to be.  It does not require followers to do anything specific at a definitive time, like praying- some churches even offer services on a Saturday evening for example.  It is therefore difficult to prove discrimination if a religion is this flexible.

Below are some other cases that mirror this decision.

 

Gary McFarlane, a former elder in a church in Bristol, lost his fight at the Employment Appeal Tribunal (EAT) in London to prove discrimination by the relationship charity Relate in 2009.  Mr McFarlane lost his job after refusing to provide sex therapy to gay couples.

 

Nadia Eweida, lost her appeal against a ruling which cleared British Airways of discrimination by stopping her wearing a cross visibly at work.

Hannah Adewole complained that wearing trousers goes against her religious beliefs.

Mrs Adewole, 45, cited a command in the Bible that women should not wear men's clothing, and claimed she was banned from wearing scrub dresses in theatre.  It was even pointed out in her claim that Muslim midwives are allowed to vary official uniform with their own hijabs and tops.  This did not help her and she lost her claim.

Steven Preddy and Martyn Hall  are a gay couple who brought a successful claim against the Christian owners of a Cornwall B&B for refusing to let them share a bed.

 

And even more recently, Christians and politicians reacted with dismay after a judge overturned centuries of custom by outlawing a town hall in Devon from putting prayers on the formal agenda.

When these decisions are looked at in the light of the outcome of Cherfi v G4S Security Services Ltd, where a Muslim employee was allowed to work different hours so that he could attend the Finsbury Park Mosque, it seems sad that Tribunals are forgetting the Christian heritage of Britain.  However,  it does show that in its place we have some excellent legal brains.

We're going through changes ... (part 2)

Hello! Welcome back!  Here are some more changes to employment law that are going ahead in 2012.

There is to be auto enrolment into pensions from October 2012.  New laws coming into effect in October will require employers to automatically enrol eligible jobholders into a pension scheme and pay mandatory minimum contributions. This scheme is being staggered over four years from 1 October 2012, with employers separated into bands according to the number of employees they have. Larger employers will be starting first and the initial wave of employers will be able to voluntarily start auto-enrolment as early as July 2012, should they wish.  If you want more information on this and they types of schemes available we suggest you discuss this with a financial advisor or accountant as we are unable to offer this advice. We can, however, draft you a policy for your staff handbook, and update your contracts to highlight this extra legislative obligation.

As always the national minimum wage will be looked at in due course and the usual knock on effect of how and if that changes apply. This is due in October 2012.

Further potential changes also include a serious look into the Working Time Regulations 1998.  Changes to the Regulations could include clarification of when leave which cannot be taken due to absence on maternity, adoption, parental and/or paternity leave can be carried over to the next leave year.  There was a raft of case law on the subject of holiday last year and it is about time it was formally addressed to delineate exactly where employers stand.

Some other matters under discussion include:

• Financial penalties of up to £5,000 for employers that lose at Tribunal.
• Extension of the Acas Pre-Claim Conciliation scheme. Claimants will potentially be required to submit details of their dispute to Acas before filing a claim. Acas will have a duty to conciliate rather than a power.
• Compromise Agreements to be simplified and to be renamed "Settlement Agreements".
• Consultation on a Rapid Resolution Scheme which could potentially provide quicker and cheaper determination of low value straightforward claims.
• It has been suggested that the whistleblowing rules should be amended so that disclosures about breaches of employment contracts are no longer covered.
• The Government intends to consult on the introduction of "protected conversations" which will potentially allow an employer and employee to have frank and open discussions before disputes escalate.
• The Government will be seeking views on a proposal to introduce "compensated no-fault dismissal" for companies with ten or fewer employees.

The new focus does seem to be mediation and discussion rather than litigation which is good, but we are very interested, in particular, to see how "protected conversations" will play out! 

We're Going Through Changes... (Part 1)

It is about time we let you know what employment law changes are coming up this year.  It is a big set of changes for 2012 after the reforms that were discussed and decided late last year.

 

As always the compensation limits have been looked at and have been given a slight adjustment.  The amount for a statutory week's pay (used to calculate redundancy and the basic award in unfair dismissal claims) rises from £400 to £430. In addition, the maximum compensatory award is increasing from £68,400 to £72,300.  Don't worry, very few claims actually reach these dizzy heights!

The above changes are already in place, as they came in on 01 February 2012.  From April 2012 however, there are more increases that employers need to be aware of: statutory sick pay will increase from £81.60 to £85.85 per week and statutory maternity, paternity and adoption pay will also increase from £128.73 to £135.45 per week.  Although these are claimed back from the government employers will need to think about their cash flow and also should you offer an enhanced scheme you may need to consider raising that too so that your enhancement remains as attractive.

A really interesting amendment that comes in this year is the extension of the qualifying period from one year to two. This will come into force on 06 April 2012 and seems to be as cut and dry as, 'hired on 5th April?- you will have unfair dismissal rights in 1 year.  Hired on 6th?  That will take you 2 years to gain any rights more that whistle blowing or discrimination.'  This is how it is suggested it will happen, as always in law time, and spurious claims, will tell.

Finally, for this instalment, there are some changes that will affect the Tribunals and the mechanics of bringing a claim.  Although infrequently invoked a Tribunal can order a Claimant to make a payment into court of up to £500.  This is known as a  deposit order and  can be forfeited if the Claimant loses the case. It has been suggested that this figure will increase to £1,000 in April 2012 in order to deter vexatious litigants.

Still on the theme of paying, in 2012/13 it has been suggested that claims will now need to be paid for. There are 2 options being discussed at present;

1.  An issue fee and a hearing fee, the amount of which would depend on the nature of the claim. For example, in an individual unfair dismissal claim, the claimant would have to pay an issue fee of £200 and a hearing fee of £1,000.

or

2.  An issue fee only, the amount of which will depend on what the claimant states their claim to be worth. For example an individual unfair dismissal claim worth less than £30,000 would cost £500 to issue and one worth more would cost £1,750.

This is, I'm sure, to weed out vexatious litigants but it could also deter genuine claimants.  Of course though, flip the coin and you could see individuals clinging on harder to a claim.  Advisors will find it harder to persuade them to withdraw with no payment as they will not wish to be left out of pocket by having to cover any Tribunal fees themselves.

Anyone who can walk to the welfare office can walk to work

A recent and quite intriguing case concerned a Claimant who was employed by the local authority and, completely legally, was in receipt of benefits. 

 

As a result of the hard work of the Claimant, the local authority (in the capacity of the employer) gave him a bonus. Smiles all round.  Unfortunately the Claimant did not tell the local authority (it its capacity as dispenser of benefits) that he had received a bonus from them when acting as the employer and therefore the Claimant was technically committing benefit fraud. Uh Oh.

 

In its (now third I think) capacity, as a prosecuting authority, the local authority brought criminal proceedings against the Claimant in his capacity as a local resident.  This was with regard to his claims for housing benefit and council tax benefit, which he was wrongly claiming in light of the bonus.  Still with me so far?  Lovely. 

 

Concurrently, the local authority, wearing the employer hat once more, gave the Claimant a final written warning to last for 2 years for making false claims for benefits. 

 

The Claimant alleged that the decision to prosecute him and not to impose an administrative penalty instead in addition to the length of the warning he received amounted to acts of race discrimination. 

 

It was held that the alleged acts of discrimination by the local authority in its capacity as a prosecuting authority in prosecuting him rather than imposing an administrative penalty instead could not amount to acts of discrimination in the employment field.  Further the Employment Tribunal had no jurisdiction to even consider them.

 

Told you it was intriguing.

Go for Gold!

Two very important events are happening this year;

 

1) The Olympics comes to London; and

2) Fisher Jones Greenwood comes to London!

 

FJG are opening a Fleet Street office from the start of February and it has caused some excitement in the Essex offices.  We are all very happy and proud of our new addition but some of us are apprehensive about how event No. 1 will affect our new commuting arrangements and opportunities for holiday requests.

 

No doubt there will be unusually high requests for holidays this summer, either to watch the games, avoid them or to help take part if your employees have volunteered to be 'Games Makers'. The balance will be a tricky one to effect to ensure no one feels hard done by, discriminated against, or misses out on any pre booked tickets.

 

It is worth considering now what policies and contractual obligations you already have in place and seeing where gaps can be filled or clarified with some extra policies.  However, beware issuing a statement regarding 'first come first served' for holiday requests as you may find yourself inundated on the first day and potential claims of inequality from part time worker who were not in that day.  There could always be a 'draw' in which employees have an even chance to take holidays.  If this seems too flippant managers will need to ascertain what the requirements of each department are and see what options they have. Could you provide a room with the games on and let employees take flexible lunches to coincide with the events they would like to watch?

 

The volunteering for 'Games Makers' will be the subject of new ACAS guidance which, if relevant to your business, will make for helpful reading.  At present, and in the absence of this, you will need to decide if the employee is taking annual leave or unpaid leave.  Be aware that this could set a precedent.  You should have a clear process in mind for grating this leave and if you do not have one already should consider placing a policy reflecting this in your staff handbook.