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Be careful when quoting from the Bible …

In the recent decision of Trayhorn v. The Secretary of State for Justice the Employment Appeal Tribunal (EAT) held that a prison had not indirectly discriminated against a chaplain who was disciplined for quoting Bible passages condemning homosexuality.
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Be careful when quoting from the Bible …

Tribunal fees are unlawful: extension of time granted

Following the Supreme Court's decision in R (on the application of Unison) v. Lord Chancellor (Unison) there was speculation as to whether there would be an influx of applications requesting an extension of time on the basis that, if it were not for the illegal fees, the cases would have been brought in time. The first of these cases has now been brought.
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Tribunal fees are unlawful: extension of time granted

Add 10 per cent to discrimination compensation awards?

From April 2013, as a result of the Court of Appeal case Simmons v. Castle, there was a 10 per cent increase in general damages for non-monetary losses. This was the Court of Appeal’s implementation of one of the Jackson reforms, namely the recommendation from Lord Justice Jackson that there should be such an uplift in order to help claimants meet the additional costs and risks as a result of his other recommendation to abolish recoverability of conditional fee agreement success fees and after-the-event insurance premiums.

Up until De Souza v. Vinci Construction (UK) Ltd it was not clear whether such an uplift should apply to employment tribunal cases, given that the rationale for the uplift does not apply in the Employment Tribunal. However, employers should take note that the Court of Appeal yesterday decided in De Souza that such an uplift should indeed apply in the Employment Tribunal. The Court noted that s124(6) of the Equality Act 2010 requires that compensation awarded in the County Court and the Tribunals should be consistent. Therefore, compensation for employment discrimination should be the same as that which could be awarded for a non-employment discrimination claim (e.g. discrimination in an educational context) in the County Court.

The Court of Appeal provided some guidance in De Souza as to how the uplift should be applied. Unfortunately it does not appear that it is always as simple as adding 10 per cent. Notably the court stated that in relation to psychiatric injury, the current Judicial College Guidelines already incorporate the 10 per cent uplift, so there would be no change in this regard. However, in relation to injury to feelings the position is more complicated. The Vento bands of compensation for injury to feelings could have a 10 per cent uplift applied to them. However, we will not have any certainty until new bands are published (the Court of Appeal suggested that the President of the Employment Appeal Tribunal publish guidance setting out new bands for clarity, given that the bands were recently updated to reflect inflationary changes).

Add 10 per cent to discrimination compensation awards?

Gig economy: Couriers delivering emergency blood are workers

In March 2017, five cyclists, motorcyclists and van drivers who carry emergency blood to hospitals and samples to laboratories launched a claim challenging their self-employed status, backed by the Independent Workers Union of Great Britain (IWGB).

Last week The Doctors Laboratory (TDL) conceded that these five couriers are in fact workers, however notably did not confirm whether they would repay holiday pay owed to the workers. This concession of worker status follows a similar concession by eCourier, which recently admitted to wrongly classifying couriers as self-employed contractors rather than workers.

This is the latest development in the increasing number of gig economy employment status cases. The recent moves by eCourier and TDL in conceding worker status show the momentum that is gathering behind such cases and that companies are now seemingly prepared to pre-empt a tribunal ruling of worker status. The general secretary of IWGB, Jason Moyer-Lee, went as far as saying that it shows that “worker status is an inevitability in the gig economy”. Interestingly IWGB is going to continue its case against TDL and will argue that the couriers are in fact employees, not just workers, in an attempt to secure them the guaranteed additional benefits (such as protection against unfair dismissal) that such a classification would bring.

Gig economy: Couriers delivering emergency blood are workers

Filtering rules for criminal record checks: Two convictions do not always make a pattern of offending

The Rehabilitation of Offenders Act 1974 provides that criminal convictions, cautions, warnings and reprimands in respect of certain offences are deemed to be “spent” after specified periods of time. Spent cautions and convictions will generally not need to be disclosed. However, a person applying for an excepted post (including work with children or vulnerable adults) may be asked whether they have any unspent convictions and cautions. In addition, excepted posts qualify for checking through the Disclosure and Barring Service (DBS) by means of a standard or enhanced DBS certificate.

In 2013 the government amended the filtering rules for criminal record checks to allow offenders with single convictions that are non-violent, non-sexual and non-custodial to have the offence filtered out of a DBS check after 11 years (unless the offender was a minor when they committed the offence, in which case this time period was reduced to five years and six months). However no such provision was introduced for persons with multiple offences, meaning that where an individual has more than one conviction (of any kind) these must be disclosed. Please note that the filtering rules are separate to the rules in relation to spent convictions.

In R (on the application of P and others) v. Secretary of State for Justice and others, the Court of Appeal (the Court) held that these filtering laws are incompatible with human rights legislation as they only benefit single conviction offenders and fail to adequately protect other individuals’ right to a private life.

This case involved an individual suffering from schizophrenia who had multiple cautions for shoplifting as well as a conviction for a bail offence; as a result of these she was unable to get a teaching assistant role. The Court rejected the government’s case that it was clearer to have a ‘no multiple offenders filter’ rule than to spend more time adjusting the filter depending on the circumstances. The judge stated:

“I recognise that where a pattern of offending behaviour is demonstrated, it is entirely legitimate to conclude that such information should be available to potential employers. The difficulty with the bright line, however, is that it is not a necessary inference that two convictions do represent a pattern of offending behaviour; indeed on many occasions they will not.”

The Court went on to say that it should be possible to create a filter that takes into account the nature of any offences as well as the length of time that has passed since any convictions; alternatively a mechanism for review in specific circumstances could be introduced (as is the case with removal from the sex offenders’ list).

As a result of this case there are now calls for the government to reform the criminal records system, although this will, in all likelihood, take a back seat in light of the snap election and Brexit. However if such changes are made it is likely that (1) fewer offences would appear on the criminal records register; (2) individuals would receive a greater degree of protection from minor offences that occurred in the past; and (3) there would be less serious implications in terms of employment prospects for minor re-offending.

Filtering rules for criminal record checks: Two convictions do not always make a pattern of offending

The gig economy: “Free-riding on the welfare state”

Due to the calling of a snap general election, the Work and Pensions Committee has curtailed its inquiry and has now published its report on the gig economy and its use of self-employment. The report is somewhat damning of companies that utilise the gig economy model. The report concludes that:

“Self-employment is neither inherently good nor bad. It can represent entrepreneurial zeal and a highly desirable culture of self-reliance. It can also be deeply negative, allowing companies to evade responsibility for their workers’ wellbeing and increase their profits. It is incumbent on Government to close loopholes that incentivise this behaviour.”

The main points that the report raises are:

1. Welfare safety net

Employee status and its corresponding rights help to protect (1) individuals from personal hardship and (2) the welfare state from incurring costs in relation to such individuals. On the other hand, self-employed individuals do not have such rights and therefore neither they nor the welfare state are protected. The report argues that self-employed status is being used to deprive individuals of their rights in the name of “flexibility”, and in doing so companies are refusing to contribute to society by protecting those individuals and by contributing substantially less by way of National Insurance contributions (NICs). This is a vicious circle as NICs then bring in less revenue to the welfare pot but there is a larger demand for support as a result of such pseudo-self-employment.

2. NICs

Our welfare state is founded on the principle that everyone contributes. In the past, self-employed individuals received less support than employees, which is why their NICs were substantially lower. However, the reality today is that access to the services that NICs fund is substantially the same for both the employed and the self-employed. The report therefore recommends that the new government consider how it can equalise NICs to ensure that the welfare pot is sufficiently funded.

3. Low levels of retirement saving by the self-employed should be tackled

The report argues that the current framework does not do enough to encourage self-employed people to save for retirement, which, in turn, increases the likelihood that they will need to depend on the welfare state in the future. This could lead to a welfare state crisis whereby there are not enough funds to meet demand. The report suggests looking at tax reforms to encourage greater contributions to pensions by the self-employed.

4. Assumption of worker status

The report recommends that the default position should be an assumption of worker status. The onus would then be on employers to provide basic rights and benefits (for example, national minimum wage and paid holiday). If they wanted to argue that individuals were self-employed the burden of proof would rest with them rather than the individuals.

5. Encouraging real self-employment

Job centres focus on getting individuals into employment (rather than self-employment). The report suggests that whilst employment may be suitable for most individuals, more support should be available for helping people launch (or re-launch) self-employed careers. This would avoid stifling genuine entrepreneurs and viable new businesses.

It will be interesting to see how the findings of this report and the findings of the upcoming Taylor review of modern working practices compare. However there seems to be increasing pressure on government to ensure that gig economy workers are afforded at least basic rights. This, along with a growing body of case law from the employment tribunal that is critical of the gig economy model, means that employers utilising such a model should start to look at ways to address these problems before they are forced to.

To read the report in full click here.

The gig economy: “Free-riding on the welfare state”

Multiple choice test = indirect disability discrimination

Multiple choice tests are commonplace in recruitment processes and are a relatively easy way for employers to whittle down numbers, especially where there are large numbers of applicants. However the case below highlights the potential dangers of such tests.

In Government Legal Service v. Brookes the claimant, who has Asperger’s Syndrome, applied to the Government Legal Service (GLS) for the position of trainee solicitor. The first stage in the recruitment process was to sit a situational judgement test (SJT), which asks a series of multiple choice questions and is aimed at testing candidates’ ability to make effective decisions. Candidates need to achieve a certain score to move on to the next stage. Asperger’s tends to result in difficulties in social interaction and non-verbal communication and can cause difficulties in imaginative and counterfactual reasoning in hypothetical scenarios. As a result of this the applicant requested that she be able to provide short narrative answers to the questions in the SJT, rather than have to select from multiple choices. GLS refused this adjustment, stating that the multiple choice layout on a computer was the most cost-effective way of testing candidates and also removed human error from marking. Instead, GLS said that she could take the test without a time limit. The claimant took the test and narrowly missed the score which would have enabled her to proceed to the next stage. She subsequently brought claims of indirect disability discrimination and of failure to make reasonable adjustments.

The Employment Appeals Tribunal (EAT), upholding the Employment Tribunal’s (ET) decision, refused GLS’ appeal and held that the claimant had been subjected to indirect disability discrimination and discrimination because of something arising in consequence of her disability. It also found that GLS had failed to provide reasonable adjustments. The main points that the ET and the EAT made are as follows:

  • The provision, criterion or practice (PCP) of requiring all applicants to take and pass the SJT put people with Asperger’s at a particular disadvantage. It also put the claimant herself at a disadvantage.
  • There was no alternative explanation put forward by GLS as to why the claimant had failed the test.
  • There was a legitimate aim (testing competency of potential trainees); however, as there was a less discriminatory way of achieving the aim (i.e. letting the claimant provide short narrative answers as she had requested), the means of achieving that aim were not proportionate.

The claimant was awarded compensation (the relatively low amount of £860) and the ET recommended that GLS (1) apologise in writing and (2) review its recruitment procedures in relation to people with disabilities. This of course does not account for the impact of the reputational damage caused by the publicity surrounding this case.

This case is a good reminder that, if you are an employer that uses testing in your recruitment process, care needs to be taken to ensure that the method of testing does not disadvantage applicants with disabilities and that reasonable adjustments are considered and implemented wherever possible.

Multiple choice test = indirect disability discrimination

Two-year visa for young Europeans?

Given that, in the UK, more than half a million EU nationals work in the retail, hotel and restaurant trades (accounting for 14 per cent of the workforce), there is real concern as to whether post-Brexit there will be an adequate supply of low-skilled workers to fill these roles. Our previous blog post looked at permanent residence applications as an option for European workers already in the UK. However, the government is now looking at ways to ensure that the supply of low-skilled workers is sustained post-Brexit.

The government is currently considering a two-year fixed visa for young Europeans who want to work in the UK in certain low-skilled sectors (nicknamed the “barista visa”), a proposal put forward by crossbench peer and Migration Watch UK chair, Lord Green. Applicants for such a visa would not be able to claim benefits or bring dependants into the UK. This would be similar to the youth mobility scheme which allows young people from certain countries (for example, Canada and Australia) to come to the UK to work for up to 24 months. If this were to be implemented, the government would be looking for reciprocal arrangemets in Europe for the UK’s young people.

Whether or not the government implements such a visa programme remains to be seen. However, it is good to see that there is growing momentum in working out what the post-Brexit immigration system could look like.

Two-year visa for young Europeans?

Cartel crackdown – £100,000 reward for whistleblowers

The new “Cracking Down on Cartels” campaign is targeting businesses which agree to not compete with each other in order to keep prices high, thereby cheating their customers. The purpose of this is to ensure there is healthy competition between businesses and that customers are treated fairly when it comes to pricing.

The Competition and Markets Authority (CMA), which is running this campaign, hope that the reward of up to £100,000 and the promise of anonymity will encourage whistleblowers to step forward and report any illegal activity that they have witnessed.

Research undertaken by the CMA  shows that less than a quarter of businesses feel that they know competition law well. Given that businesses who are found to be guilty of being part of such cartels can be fined up to 10 per cent of their annual turnover and the individuals involved can face up to five years’ imprisonment as well as a 10-year disqualification from director roles, it is important that businesses get to grips with competition law to avoid such penalties.

Whether the rewards offered will in fact encourage whistleblowers to come forward remains to be seen. However given that s18 of the Enterprise and Regulatory Reform Act 2013 removed the good faith requirement from the definition of a qualifying disclosure, it will be interesting to see whether this, coupled with the reward, will lead to an increase in dubious whistleblowing reports.

Cartel crackdown – £100,000 reward for whistleblowers

The European Court of Justice (ECJ) and the banning of headscarves in the workplace

Two highly anticipated cases involving the legality of banning headscarves in the workplace were decided by the ECJ this week.

Achbita and anor v. G4S Secure Solutions NV (Case C-157/15) involved a company that provided security, guarding and reception services. The employee handbook stated that employees were not permitted to wear any religious, political or philosophical symbols while on duty. An employee, after three years of working for the company, decided that she wanted to start wearing a headscarf. The employee was eventually dismissed for refusing to remove the headscarf.

Bougnaoui and anor v. Micropole SA (Case C-188/15) involved an IT engineer who was told by her employer that she would not be able to wear her headscarf at all times. There was not, however, a blanket prohibition on the wearing of visible signs of political, philosophical or religious belief. The employee went on a site visit and wore a headscarf. The customer complained to the company about the fact that she had worn a headscarf and requested that she did not do so in the future. The company raised this issue with the employee; however, the employee refused to comply with the customer’s request. She was then dismissed.

The ECJ held:

  • In relation to a blanket prohibition:
    • that a company rule prohibiting the wearing of visible signs of political, philosophical or religious belief without distinction is not directly discriminatory;
    • that such a blanket prohibition may give rise to indirect discrimination but this may be objectively justified by an employer’s policy of neutrality; and
    • that the policy of neutrality was an objective justification only if it applied solely to customer-facing roles.
  • Where there is no blanket prohibition
    • if in response to a customer complaint about the wearing of a headscarf an employer bans the wearing of headscarves, this will be discrimination; and
    • such discrimination will not be capable of being justified on the basis of a “genuine and determining occupational requirement” under Article 4 of the EU Equal Treatment Framework Directive.

There has been much press commentary on these cases. This has included criticism that these cases could cause confusion as to which religious symbols can be worn at work, particularly when the judgment is contrasted with findings in the European Court of Human Rights that allowed the wearing of crosses at work. An additional complexity for the UK is that, with Brexit looming, the status of such case law in the longer term is uncertain. However, what is clear is that these cases highlight the need for companies to carefully consider their approach to the wearing of visible signs of political, philosophical or religious beliefs and the need to ensure that any polices they apply that restrict such wearing are strictly necessary. Clearly a balance needs to be struck between employees’ religious freedoms and legitimate business aims.


The European Court of Justice (ECJ) and the banning of headscarves in the workplace