Gordons Legal Employment Update – 16 December 2016

This week’s E-brief is going to be our last for 2016, so we would like to take this opportunity to wish you Merry Christmas and a Happy New Year.  We look forward to continuing to share our E-brief with you in 2017. 

Ministers of Religion and Same Sex Marriage

The Employment Appeal Tribunal (EAT) in Revd Pemberton v Bishop of Southwell & Nottingham, determined that the Bishop was entitled to rely on the exemption in Schedule 9 of the Equality Act 2010 (the Act) when refusing to grant a practising licence to Revd Pemberton due to him having entered into a same-sex marriage. The exemption in Schedule 9 permits qualifications bodies to apply a requirement not to be in a same sex marriage if the requirement is applied “so as to comply with the doctrine of the religion” and if the employment in question is “for the purposes of an organised religion”.

By way of background, an extra parochial ministry licence allows a priest to perform services as a minister outside of their parish or in an institution.  It is a relevant qualification for the purposes of discrimination by a qualifications body under the Act.

In this case, the EAT upheld the Employment Tribunal decision that the Bishop was a qualifications body for the meaning of the Act.  So this, on the face of it, was discriminatory as the decision not to grant the licence was “because of” Revd Pemberton’s sexual orientation. However, the EAT confirmed that the Bishop was able to rely on the Schedule 9 exemption as the purpose of the employment was of course for an organised religion and the action taken by the body was indeed to comply with the doctrines of that religion. The EAT held that the doctrines of the Church of England, i.e. the requirement not to have entered into a same-sex marriage, had been applied to the Claimant.

The EAT has granted permission to appeal to the Court of Appeal, if an application should be made.

Comment:  This case raises important questions about the rights of religious organisations to determine who may or may not represent them and does effectively allow them to discriminate in these circumstances. It will be interesting to see the Court of Appeal’s decision if a further appeal is made, but in our view it is unlikely that the EAT’s Judgment will be overturned given Schedule 9 does appear to fit squarely with the issues in this case.

Claims in the Employment Tribunal on the Increase……but not to worry too much!

The Employment Tribunal’s quarterly statistics for the period July to September 2016 have been released this week, which show that there were 4,349 single claims (an increase of 2% when compared to the same period in 2015) and there were 27,196 multiple claims (an increase of 45% when compared to the same period in 2015).  Whilst the increase in multiple claims seems alarming at first glance, we understand that this is due to a multiple airline case relating to the jurisdiction of the Working Time Directive).

With regard to fee remission, only 23% of claimants were awarded either a full or partial fee remission of the issue fee, with 65% of claimants paying the issue fee outright.  It appears that for the remaining 12% of cases the claim was not taken any further (assumedly due to the unaffordability of the issue fee or the complexity of the remission process).

Comment: Whilst there has been a slight increase in the numbers of claims being brought,  the figures are still significantly lower than the days when there was no fee for issuing proceedings.  The remission statistics make quite interesting reading, with two thirds of claimants choosing to pay the issue fee outright, which suggests that fees are still likely to be the main factor that is putting off prospective claimants from issuing tribunal proceedings.

Review into auto enrolment

To date, almost 7 million people have been enrolled by more than 293,000 employers and on the back of its success, the Government have announced its plan to commence a review into auto enrolment.

The main focus of the review will include:

• How the growing numbers of self-employed people can be helped to save for their retirement;
• The needs of those not currently benefiting from automatic enrolment;
• The automatic enrolment thresholds including the trigger and qualifying earnings band and the age criteria to start automatic enrolment;
• The level of charge cap; and
• Statutory requirement for the statutory review of the alternative requirements for defined benefits schemes and the certification requirements for money purchase schemes.

The review aims to ensure that automatic enrolment continues to meet the needs of the individual saver. The report is aimed to be published towards the end of 2017.

Employers being offered support for mandatory gender pay gap reporting

The Government Equalities Office (GEO) has published a response to its consultation on the issue of Mandatory Gender Pay Gap Reporting.

Many respondents to the consultation indicated that greater clarity is required in certain areas and as you will be aware from last week’s update the draft regulations have now been updated.  The GEO has also reiterated that it will, where necessary, publish user-friendly guidance and provide support to employers including:

• “A campaign of myth-busting UK-wide events and multimedia guidance to help employers calculate their gender pay gap, gender bonus gap and the numbers of men and women at different pay quartiles.
• Targeted support for smaller employers, and those in sectors that are least advanced on gender equality.
• Share best practice of exemplars through Think, Act, Report, and a report on the trailblazing action many businesses are taking to tackle the pay gap was published in February.”

Revised draft code on picketing

The Department for Business, Energy & Industrial Strategy has published a revised draft code on picketing to bring it in line with the Trade Union Act 2016.

It makes it a legal requirement that:

• Trade unions appoint a picket supervisor and provide them with a letter stating that the picketing is approved by the union;
• The picket supervisor must either attend the picket line or be readily contactable by the union and the police and be able to attend at short notice; and
• The picket supervisor must be readily identifiable in their role as such and be familiar with the Code.

The code offers practical advice on picketing that can take place during a trade dispute, and outlines the various laws that apply to picketing as well as providing guidance which, if followed, ensures that the picketing is lawful.

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.