Employment Update 14 June 2011
Welcome to our fortnightly round-up of what's happening in employment law.
Refusal for time off to attend mosque
The Employment Appeal Tribunal (EAT) has upheld the decision of an employment tribunal that an employer's refusal to allow an employee to leave a client's site to attend mosque on Friday lunchtimes did not constitute indirect religious discrimination. The tribunal had undertaken the necessary balancing act and concluded that the requirement for the employee to remain on site was objectively justified on the basis of the operational needs of the business.
In Cherfi v G4S Security Services Limited, Mr Cherfi was a security guard who used to leave work every Friday lunchtime to attend prayers at the local mosque. In October 2008, however, Mr Cherfi was informed that it would no longer be possible for him to attend Friday prayers because the employer's client required, as part of its contract with the employer, all security guards to remain on site for the full duration of the day.
Mr Cherfi was given access to the prayer room at the client's site. The employer also informed him that his contract of employment could be amended to a Monday to Thursday pattern with the option to work on Saturday or Sunday instead of Friday. Mr Cherfi was not prepared to work on a Saturday or Sunday and subsequently took Fridays either as sick leave, authorised annual leave or authorised unpaid leave.
Mr Cherfi claimed that the employer had indirectly discriminated against him on the grounds of his religion by requiring him to remain at his place of work on Friday lunchtimes. This placed him at a disadvantage as a practising Muslim. The employment tribunal dismissed the claim and confirmed that the requirement was justified. Penalties could be imposed under the terms of the employer's contract with the client if security guards were not on site for the entire shift. The employer could only run its business properly and on a sound financial basis by engaging security guards working on shifts of at least eight hours. There was evidence that if the client's demands were not met, the contract would be lost. It was also not practicable to bring in another guard to cover Mr Cherfi's lunchtime absences. Mr Cherfi was offered alternative options and he was not bullied or pressurised into working on Saturday or Sunday. In the circumstances, the requirement was a proportionate means of achieving a legitimate aim, which was meeting the operational needs of the employer's business.
The EAT upheld the tribunal's decision. It held that the tribunal did look at both halves of the equation and do the necessary balancing act, looking both at Mr Cherfi's position and the employer's position. Interestingly, the EAT also commented that this case was not simply an instance of a cost consideration alone being used to justify the practice. Even if it were, the EAT would have taken "as correct" the comments made in the recent case of Woodcock v Cumbria Primary Care Trust, which cast doubt on the view that cost alone can never justify indirect discrimination.
UK Government ordered to confirm position in Christian discrimination cases
As reported in The Telegraph, the European Court of Human Rights (ECHR) has ordered the UK Government to present formal statements in four high-profile religious discrimination cases.
The cases, including Eweida v British Airways, where an employee was barred from wearing a cross around her neck, have been selected by the ECHR as being of legal significance which require further examination. The other cases include Lillian Ladele who was disciplined for refusing to conduct civil partnership ceremonies; Gary McFarlane who was disciplined for refusing to provide counselling to same-sex homosexual couples and Shirley Chaplin, a nurse, who was not permitted to wear a cross on a necklace at work.
Agency workers guidance - revisions
The Department for Business, Innovation and Skills has amended the guidance on the Agency Workers Regulations 2010, published on 6 May 2011.
Following further representations, it has revised the chapter on "Pay between Assignments" to make the provisions and requirements clearer, particularly in relation to treatment of annual leave. Other minor amendments have been made to improve the guidance and the guidance for agency supply teachers has removed. This is due to be extended and will be published shortly. Separate guidance for agency workers should also be available shortly.
Widespread industrial action to come?
The Business Secretary, Vince Cable, has warned unions this week that widespread industrial action over spending cuts could lead to tighter strike legislation.
At the GMB union's annual conference in Brighton, Mr Cable said there was currently no compelling reason to reform strike laws. However, he also noted that, "should the position change, and should strikes impose serious damage to our economic and social fabric, the pressure on us to act will ratchet up. That is something which both you, and certainly I, would wish to avoid".
Following Mr Cable’s speech, the Chartered Institute of Personnel and Development (CIPD) urged Government to build public sector leadership and management skills and improve communication and consultation to help stave off the worst effects of strike action to come.
Mike Emmott, CIPD employee relations adviser, said “Trade unions have the power to disrupt only if employees trust them more than they trust management. The fundamental need is not to ‘manage the trade unions,’ it is to manage the employment relationship and communicate the case for change…Unions, Government, frontline workers and public alike have far more to gain from a strategy focused on building trust and avoiding conflict. The real action is far from the booing and heckling in the conference hall – it is in the front-line engagement between managers and employees and in the presumably mature conversations taking place quietly between ministers and unions."
Low Pay Commission remit
The Low Pay Commission (LPC) will continue to monitor, evaluate and review the National Minimum Wage and its impact, and review the levels of each of the different minimum wage rates.
As part of its remit, the Government has asked the independent body to pay particular attention to:
- Youth employment - including those in apprenticeships and internships
- Possibilities for simplification of the current regulations
- The best way to give businesses greater clarity on future levels of the NMW
The LPC will report to the Prime Minister and the Secretary of State for Business, Innovation and Skills by the end of February 2012.
Red Tape Challenge - Equality Act 2010
Lynne Featherstone, the Equalities Minister, has explained why the new Equality Act 2010 features on the Red Tape Challenge website, which was launched earlier this year to reduce the burden of regulations and to tackle red tape.
In response to concerns that the Government is considering abolishing the Act, she has confirmed that, as the website now makes clear, a particular regulation being featured on the Red Tape Challenge should not be read as implying any intention on the part of the Government to remove that regulation. The Government is, instead, seeking views on how the Act is working in practice and whether it could be simplified, better implemented, or if certain provisions should be dropped or amended, or whether it should be kept exactly as it is. The Red Tape Challenge will focus on the Equalities theme from 9 June until 30 June.