NOVEMBER 2011
Employers and their Human Resources advisers face constant difficulties in trying to avoid the potential pitfalls posed by current employment law. This bulletin aims to address, in a practical way, some issues commonly dealt with by Human Resources departments and to give realistic guidance on how to reduce the risk of employment related litigation in these areas.
LEGAL UPDATE
Tribunal reform
On 3 October 2011, the Chancellor of the Exchequer announced that the continuous employment qualification period for the right to claim unfair dismissal in the Employment Tribunal will increase from one year to two years. This change is proposed to be effective from 6 April 2012. The Chancellor also announced that he intends to introduce a system of fees in the Employment Tribunal, including for lodging a claim. A consultation on Tribunal fees is expected to start by the end of November.
Agency workers
The Agency Workers Regulations 2010 came into force on 1 October 2011. This means that agency workers, being those supplied by a temporary work agency to work temporarily for and under the supervision and direction of an end user/hirer, (commonly referred to as “temps”) will enjoy new legal rights.
National minimum wage
New national minimum wages rates took effect from 1 October 2011. These are £6.08 for workers over 21 (from £5.93), £4.98 for workers aged between 18 and 20 (from £4.93) and £3.68 for workers who are 16 and 17 (from £3.64).
FAQ’S
Q: One of my receptionists wants to wear a poppy at work. This is contrary to our uniform policy. She says her right to wear it is protected in law by the Equality Act. Is this right?
There has been a very recent Employment Tribunal case called Lisk v Shield Guardian Co Limited (2011) which has considered this issue. Mr Lisk claimed that his employer’s refusal to allow him to wear a poppy at work was discriminatory as it contravened his belief that “we should pay our respects to those who have given their lives for us by wearing a poppy from All Souls Day on 2 November to Remembrance Day”.
As you may know, the Equality Act 2010 protects employees from being discriminated against because of their religion or belief (being “any religious or philosophical belief” with further definition of that given in case law). The question for the Tribunal was, therefore, whether Mr Lisk’s belief that a poppy should be worn as a mark of respect was sufficient to amount to a “belief” for the purposes of the Equality Act 2010.
The Tribunal considered the issue and decided that Mr Lisk’s belief was not protected by the Equality Act 2010. It held that there was no “philosophical belief” underpinning his choice to wear a poppy as the characteristics of his belief did not have the necessary cogency, cohesion and importance that is required and was therefore simply too narrow to be considered as being a philosophical belief protected by the Act.
It should be noted that Employment Tribunal decisions are, strictly speaking, not binding authorities but they can be indicative of the way a Tribunal would decide issues (in the absence of any perceived error by the Tribunal) and therefore the same approach could be adopted by other Tribunal's dealing with the same issue. It is doubtful that your receptionist could successfully claim that not allowing her to wear her poppy at work is discriminatory, and you have a recent Tribunal decision to support you if you decide not to allow it. Bear in mind that some organisations relax their uniform policy for the wearing of poppies.
Q: My IT support assistant is trying to claim that he is an employee but his contract clearly states that he is self-employed. Do I have anything to worry about?
Possibly yes. A number of factors are considered (by the Courts or by HMRC) in deciding legally whether a person is employed or self-employed. These include whether they are required to provide a personal service, whether there is an obligation on an employer to provide work and an obligation on the person to accept that work and whether there is control by the employer over the individual. There may also be other factors that demonstrate that an individual is employed.
Generally, the express written terms of the contract will be relevant when assessing an individual’s employment status. For example, one term which often indicates that an individual is self-employed is a clause for them to provide a substitute where they are unable to perform the work themselves. Another term is a statement confirming that the employer has no obligation to offer the individual ongoing work and the individual has no obligation to accept it (known, in law, as a lack of “mutuality of obligation”).
That said, written contractual terms are not conclusive evidence of self-employment and may be disregarded if they do not reflect the reality of the situation. The recent Supreme Court decision of Autoclenz v Belcher & Others (2011) considered this very issue.
Autoclenz Limited engaged a number of individuals as car valeters and issued them contracts that described them as self-employed. Terms were included in the contract which allowed the valeters to provide a substitute and the contract specifically stated that there was no mutuality of obligation. However, in practice, the relationship between Autoclenz and the valeters was more akin to that of an employer and employee. Although the terms stated that the valeters could provide a substitute, none of the valeters ever availed themselves of the right to send a substitute. Further, despite stating that there was no mutuality of obligation, the employer did require the valeters to turn up for work every day and to notify them in advance if they could not. There were also other factors which pointed towards them being employees. For example, the valeters had to wear the company uniform, were provided by Autoclenz with all the necessary cleaning products and were paid through a complicated method whereby Autoclenz provided the data necessary for the valeters to submit their invoices.
The Supreme Court found that despite the written contractual terms, the valeters were not self-employed and instead were employees of Autoclenz. The Court stated that the central question to consider was the true agreement as to the actual arrangement between the parties. To assess whether written terms accurately represent what was actually agreed, all relevant evidence should be taken into account.
That included matters such as how the parties conducted themselves in practice and what their expectations of each other were. The Court made it clear that written contractual terms could be disregarded if they do not reflect the reality of the situation.
Applying this to your situation, although the contract states that the IT support assistant is self-employed, you must consider your true relationship with the assistant before you can determine the likelihood of them being found to be your employee.
Q: One of my cleaners has been off sick for the last few weeks. However, I have since found out that she has been continuing to work at her secretarial job for another employer. Surely, this is gross misconduct and I can dismiss her?
It is an established principle that an employee with two jobs for different employers may be entitled to claim sick pay from one employer while continuing in his or her other job.
The recent case of Perry v Imperial College Healthcare NHS Trust (2010) illustrates this. Ms Perry had two jobs nd worked part-time for two different NHS Trusts in different positions. Her role as a community midwife at Imperial College required her to travel, whereas her other job with Ealing Primary Care Trust was desk-based. Due to a knee condition, she was signed off sick from her work at Imperial College but continued with her clinic-based job at Ealing. When Imperial College found out that she had carried on with her other job, it dismissed Ms Perry on the grounds that she had defrauded Imperial College by receiving sick pay whilst undertaking paid work. It refused to consider a doctor’s certificate which confirmed that while Ms Perry was unfit to do her Imperial College duties, she was fit to continue her Ealing job.
The Employment Appeal Tribunal (“EAT”) held that Imperial College had not been entitled to dismiss Ms Perry. The EAT made it very clear that an employee could claim sick pay while medically incapable for one job, and carry on her other job for which she was still fit.
Although Perry is based on specific facts, it highlights the importance of considering carefully whether the circumstances are such that they warrant dismissal for gross misconduct.
In your scenario, you should first consider whether the employee’s illness is such that it means that she is medically unfit to do her cleaning duties, but not her secretarial ones. By way of example, cleaning tasks will involve much more physical demands so if she has been signed off sick because of a back injury, it is feasible that she may be able to continue in a secretarial role which is desk-based and will not require her to physically exert herself. It may be that you will need to obtain further medical advice in order to determine this.
Secondly, you will want to consider whether there are any other grounds for taking disciplinary action. For example, do her terms of employment prevent her from carrying out another job? Do you believe that she is fabricating her illness in order to fraudulently claim sick pay? Do you suspect that she is carrying out her second job during the hours that she should be working for you? If so, it might be that you need to investigate your suspicions further and commence disciplinary proceedings. However, the appropriate level of sanction will depend on the specific circumstances and will not necessary mean that it would be fair to dismiss her.
Q: One of my employees has requested time off work every Friday as he wants to pray at a mosque. Do I have to agree to this?
The basic rule is that an employer must not have policies, rules or other practices that apply to all, but which have the effect of disadvantaging employees of a particular religion or belief, unless the employer can show that they are objectively justified. Arguably, the practice of requiring an employee to remain at work on a Friday afternoon, could therefore be discriminatory. This is known as “indirect discrimination”. The key question will therefore be whether the practice is justified.
The recent case of Cherfi v G4S Security Services (2010) dealt with this very situation. In this caseMr Cherfi was a Muslim who worked at the company as a security guard. The company required all its security guards to remain on site throughout their shifts. The company therefore refused to give Mr Cherfi permission to leave the site to attend Friday prayers at a local mosque. The company alleged that it would be in danger of financial penalties or even losing the contract with its client if the security guard was not on site throughout the day.
The company also submitted that Mr Cherfi had the option of using a prayer room on site or working on a Saturday or Sunday, rather than a Friday.
The Employment Appeal Tribunal (“EAT”) decided that requiring Mr Cherfi to stay on site throughout his shift was a proportionate means of achieving the company’s operational needs and did not amount to indirect discrimination. The EAT carried out a balancing act between the needs of the employer and the discriminatory effect on Mr Cherfi. It considered the business reasons why the company had refused Mr Cherfi permission to attend the mosque for Friday lunchtime prayers and the impact that this had on Mr Cherfi. It took into account the fact that neither Mr Cherfi nor any other Muslim had been prevented from praying on site and that it was not compulsory that Mr Cherfi worked on a Friday; he could have chosen to work on the weekend instead.
The above case is very fact specific, especially since Mr Cherfi was not required to work on set days (i.e. a Friday) nor was he or any other Muslim employee prevented from praying at the site during working hours.
You will need to consider your employee’s request very carefully when deciding whether to give them the time off every Friday. Is there a compelling need for the employee to be at work during the time that they have requested to pray in the mosque? Can you rearrange their working days so that they are not required to be at work on a Friday? Could you provide them with an alternative prayer area? If you decide to refuse the request, you need to show that your decision was proportionate and reasonable. Note that it is notoriously difficult to justify indirect discrimination so you need to ensure you have very good reasons for refusing the employee’s request.
Alison Downie
Head of Department & Partner
If you would like any further information about the issues raised in this article please contact Alison Downie (adownie@gdlaw.co.uk), or any other member of Goodman Derrick LLP's employment team on 0207 404 0606.
This guide is for general information and interest only and should not be relied upon as providng specifc legal advice.
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