Gordons Legal Employment Update – 10 February 2017

Refusal to allow employee a 5 week holiday not religious discrimination

(Gareddu v London Underground)

Mr Gareddu was a Quality Engineer on the London Underground. He was a Roman Catholic originally from Sardinia. Between 2009 and 2013 management had allowed him to take the majority of his holiday entitlement in a single 5 week block over the summer to enable him to return to Sardinia to attend religious festivals with his family.  A new manager then came in and refused his request for a 5 week holiday, saying that he could not take more than 15 consecutive days.

Mr Gareddu brought an indirect religious discrimination claim saying that attending religious festivals in Sardinia was part of his religious belief.  The Tribunal took into account that Mr Gareddu had said in his witness statement that he attended the same 17 festivals each year during this period and each one was very dear to him and had a deep religious significance.  It later emerged in evidence at the hearing that he had not attended all of these every year and in 2013 had only attended 9 of the 17.  The Tribunal therefore had doubts over the credibility of his evidence in Tribunal. The Employment Tribunal rejected his discrimination claim on the basis that his asserted religious belief was not made in good faith.  A conclusion was made that his motive for wanting that particular 5 week period off work related to family arrangements rather than his religious beliefs.

Mr Gareddu appealed against the Tribunal’s decision but the appeal was unsuccessful.

Comment: This case was specific to its facts and does not change the general position that if an employee requests annual leave for a genuine religious occasion, employers should seek to accommodate that request provided they have sufficient holiday entitlement and it is reasonable for them to be absent during the requested period. If the holiday would cause significant operational difficulties refusal of the request may be justified.

Employment Tribunal fees

The Ministry of Justice (MoJ) has finally published the governmental ‘Review of the introduction of fees in the Employment Tribunals’ (the “Review”). In summary, the Review concludes that the introduction of fees has broadly met its objectives:

• Between £8.5m and £9m is being contributed annually to the tribunal system by those who use the system (transferring a portion away from non-using tax payers).
• More people are using the ACAS free conciliation service than were previously bringing claims and using the voluntary ACAS service combined.
• The use of the ACAS conciliation service has been effective in helping resolve disputes (without the need to then go to tribunal). Where conciliation has not worked, many people have gone on to issue proceedings in the ETs according to the Review.

As a consequence of these objectives being met, the government plans to keep the existing fee structure and fee level as they are. The statement in the foreword of the Review that it is ‘hardly surprising that charging for something that was previously free would reduce demand’ is somewhat undisputable. However, the central argument that the reduction of tribunal applications is not a problem, and that there is ‘nothing to suggest [that those who have chosen not to bring claims to the ET] have been prevented from doing so’, has been widely criticised.

The TUC, Law Gazette and other union bodies have been at the forefront of the condemnation arguing that the significant 70% drop in tribunal claims should be enough evidence in itself. Other analysts have pointed to the direct contradiction of the House of Commons Justice Committee’s report on Employment Tribunal Fees which criticised the access to justice consequences of charging individuals to bring a claim. They also highlighted the estimated figure of 3,000-8,000 people who had failed conciliation and did not have the means to bring a claim at all.

In response to some admitted ‘failings’ in the fee system, the Review has recommended a series of changes to employment tribunals; most notably to the current remission scheme. Coupled with a number of other developments, dealt with below, there could be some scope to suggest that tribunal claims may begin to become more accessible in the future.

Unison Judicial Review Challenge – Supreme Court

Finally, and separate to the Review, Unison’s judicial review application against the fees has been accepted by the Supreme Court. This is despite rejection from the High Court and the Court of Appeal to bring such a claim as there was insufficient evidence to do so. The Supreme Court’s website describes the basis of the judicial review application to be:

“Whether the Fees Order imposing fees in the Employment Tribunal and Employment Appeals Tribunal breached the EU principle of effectiveness, and whether it was indirectly discriminatory.”

The Supreme Court will hear the case on 27 and 28 March 2017 and the outcome will be eagerly awaited. A decision by the UK’s top court that the fees are disproportionate means of restricting access to justice could open the tribunal floodgates wide open.

Comment: Although there have been scathing comments made by various organisations (i.e. the TUC, Unison and the Law Society) there is no doubting that a more widely publicised and available remission scheme will open up access to more users. In particular, the newly introduced ‘Help with Fees’ scheme will open up the remission process to the majority of full-time workers on the National Living Wage. The Low Pay Commission predicted in 2016 that this could be up to 2.2m people.

Such changes may also bring the majority of the 3,000-8,000 persons who could not afford the tribunal fees back into contention as well as deterring others from the ACAS conciliation service altogether. However, on the whole, the biggest risk to tribunal applications increasing again may well be the Unison judicial review case. The Supreme Court’s decision at the end of March may well be a substantial turning point in the ever-raging argument of tribunal fees.

Disability discrimination and unfair dismissal remedy

In the case of Nicola Sinclair v Bishop of Llandaff Church in Wales High School, the head teacher gave the Claimant an ultimatum to either accept a settlement or be put through capability proceedings. Three months after resigning, the Claimant was sectioned under the Mental Health Act and was hospitalised with bipolar disorder. The Claimant subsequently brought a claim for constructive dismissal and disability discrimination.  At the hearing last year, the ET ruled that the Claimant had been constructively dismissed after being forced to resign.  The ET found that some of the Respondent’s practice caused the Claimant to suffer discrimination due to her disability and it had failed to make reasonable adjustments to assist her to continue to do her job.

At the remedy hearing, the ET awarded the Claimant a total of £346,175.  The ET held that it had to consider what would have happened if a supportive programme had been put in place by the Respondent.  The ET held that had the Respondent handled the Claimant’s performance management with assistance and sensitivity, she may well have been able to sustain a long career with performance at an adequate level.

Comment:  This case is a useful reminder that the potential costs involved in unfair dismissal and discrimination cases. Compensation for discrimination is potentially unlimited, whereas compensation for unfair dismissal is subject to the statutory cap. The award in this case consisted of a basic award, loss of earnings, notice pay, future loss of earnings, injury to feelings, personal injury and pension loss.

Legal Updates

Online form for workers to report NMW complaints

The government have published an online form for individuals to report information and concerns about:

• The national minimum wage (NMW)
• Employment agencies
• Gangmasters; and
• Working hours.

The online form will enable easy access for employees to report breaches of the NMW and Working Time Regulations 1998. It will allow the worker to refer the matter to the Health & Safety Executive which can then bring a claim against the employer on their behalf. The online complaint form can be viewed here.

Brexit White Paper

Following on from last week’s Brexit article, there are a number of specifically employment-related issues contained within the twelve ‘Negotiating Principles’ of the Brexit White Paper. The following will be under direct scrutiny during negotiations:

1. Control of immigration

2. Rights for EU nationals in Britain, and British nationals in the EU

3. Protect workers’ rights

The White Paper has since been passed through the House of Commons with 494 votes to 122.

Uber Lodge Notice of Appeal

Unsurprisingly, Uber have appealed the Employment Tribunal decision that ruled its drivers were workers rather than self-employed contractors. After consideration of the tribunal’s judgment, it is important to stress that the Uber case is very fact-specific largely due to the unique nature of the taxi-provider’s technology. However, as always, there are other disputed issues at play (such as the interpretation and calculation of hours under the Working Time Regulations) that may have far-reaching implications elsewhere.

Comment: The Notice of Appeal makes an interesting read, with Uber’s counter-arguments to the original decision fairly illuminating. Of particular note is Uber’s argument against the finding that the relevant hours (for the purposes of the National Minimum Wage Regulations) were the hours spent within the driver’s territory with the Uber App switched on. Uber contend that this will lead to the absurd consequence that Uber would be liable to pay the NMW to drivers whilst they had the App switched on in their territory even if those drivers were refusing all the trips offered to them. This perhaps provides contradiction to the facts provided at the original tribunal whereby drivers were reprimanded for failure to accept jobs consecutively.

It will be interesting to see how much involvement the EAT has in these types of facts in the case. After all, any judgment the EAT provides will set a precedent (whereas ET judgments are not binding). If Uber drivers are declared workers then the change to their tax status may give rise to potential heavy HMRC involvement. Very likely, this case, with all of its complexities and the potential for huge financial and tax ramifications, will be disputed all the way to the Supreme Court.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.