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Belief in the Labour Party equivalent to religious belief

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In Olivier v Department for Work and Pensions, the Tribunal found a strong commitment to a political party amounts to as much of a protected belief for the purposes of bringing a discrimination claim as a religious belief.

Mr Olivier worked for the DWP and was subject to its standards of behaviour, which set out the parameters to which civil servants can engage in political activity. He was dismissed for gross misconduct when following his election as a Labour councillor, he had a letter published in a local newspaper criticising the government’s tax and benefit policies. He subsequently brought a philosophical belief discrimination claim.

Before the case could proceed, Mr Olivier had to prove that he held philosophical beliefs of sufficient gravity to entitle him to the protection of the Equality Act. To do so, he had to show that his affiliation with the Labour Party was not mere political activity but a genuine belief in a political party, which amounted to democratic socialism. The tribunal accepted Mr Olivier’s arguments on the basis that: (i) his belief was genuinely held and not simply an opinion; and (ii) it influenced how he conducted his life in that he lived for the Labour Party and had supported its aims, values and causes for over 30 years.

In the run up to the 2015 general election next year, employers should note that whilst politically active workers cannot bring a discrimination claim on the basis of mere party support, they potentially can if their political views amount to strong genuine beliefs in a doctrine.

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The proportionality test in discrimination

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The Court of Appeal said that the concept that ‘not working on a Sunday is not core to Christian belief’ is irrelevant for Tribunals working out whether a Christian’s belief that she should not be required to work on Sundays for faith reasons should be granted.

Ms Mba was a care assistant at a children’s home run by a Council. She brought an indirect religious discrimination claim when the council required her to work on Sundays. The Court of Appeal agreed that the council’s requirement for Ms Mba to work some Sunday shifts was a proportionate means of achieving a legitimate aim (i.e. the needs of the children’s home).

The Court of Appeal was asked to find “whether, in carrying out the proportionality exercise, the Tribunal was entitled to give weight to its finding that Mrs Mba’s belief that Sunday should be a day of rest and worship “is not a core component of the Christian faith”. The Court found that the Tribunal was not because human rights law does not require a test of group disadvantage. As such, the Tribunal should only have focused on Ms Mba’s religious freedom when weighing up proportionality. However, what employers need to take away from this decision is that notwithstanding this error, the decision to require Ms Mba to work on Sundays was still proportionate as the council’s needs in managing a children’s home meant there was no reasonable alternative.

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Dismissing sick employees for long term absenteeism is okay if a reasonable employer would do the same

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The Scottish Courts found that it is potentially reasonable to dismiss a long term absentee employee for ill health even though Occupational Health indicated a potential return within the next couple of months.

The employee worked for Dundee council for 35 years when he was dismissed for ill health. In the year preceding his dismissal, he was off sick for 272 days with stress and depression. The council regularly sought medical reports from Occupational Health relating to his prognosis. The final report relied on by the council indicated that the employee would likely return to work within one to three months. However, when the council met with the employee who said that he did not think he was getting any better. As such, the council dismissed him because they could not see a ‘light at the end of the tunnel’. The employee brought a claim for unfair dismissal seeking reinstatement.

The Scottish courts remitted the case back to the Tribunal due to procedural failings. However, they gave some guidance on dismissing long term absent employees:

The question was whether any reasonable employer would have waited longer before dismissing the employee and if so, how much longer. The size of the employer, availability and cost of temporary staff, administrative and Occupational Health costs and whether the employee has exhausted his sick pay are all relevant factors;
Employees’ own opinions of their likely return to work should be taken into account;
Employers should obtain medical opinions but bear in mind that the decision to dismiss should be decided by the employer, not Occupational Health therefore it is not necessary to pursue detailed medical examinations; and
Length of service is not automatically relevant although it can help assess the employee’s nature in deciding whether he is likely to return to work as soon as he is able.

This decision gives some guidance to employees on how to make the tricky decisions regarding when employees go on long term sick absence. Helpfully enough, the decision confirms that an organisation’s management, organisational and commercial needs can be taken into account.

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How important are occupational health reports?

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In Gallop v Newport City Council, the Court of Appeal found that employers cannot necessarily say they did not know that an employee was disabled even though Occupational Health had diagnosed the employee as not disabled.

Mr Gallop worked for the Council, and over the course of a few years was signed off work for stress. He was referred to Occupational Health on several occasions, who concluded that although Mr Gallop had stress related symptoms, he had no signs of clinical depression. Mr Gallop lodged a grievance that the Council had not taken sufficient steps to ensure his health and safety at work, which was rejected by the council on the basis that they had removed some of his duties and arranged a phased return to work. Mr Gallop was later dismissed for bullying and brought a claim for failure to make reasonable adjustments for his disability. The council argued that it had not failed in its duty to provide reasonable adjustments because Occupational Health had advised that Mr Gallop was not disabled.

The Court of Appeal found that the council could not deny knowledge of Mr Gallop’s disability by unquestioningly adopting OH’s advice. The case has been remitted back to the Tribunal to determine whether the council had actual or constructive knowledge of Mr Gallop’s disability.

While employers may find determining disability tricky and want to rely on an Occupational Health medical report, they must remember they cannot outsource its responsibilities.

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Agency workers loophole

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The Employment Appeal Tribunal has said that agency workers on open ended contracts with companies are not covered by the Agency Workers Regulations 2010 because they are not ‘temporary’.

Under the regulations, organisations are obliged to provide agency workers with the same basic working and employments rights as permanent employees once they have met the qualifying period of 12 weeks’ service. However, the case of Morgan v Ideal Cleaning Services Ltd has now opened a loophole for employers in that only agency workers with contracts of a definite duration (whether short term or not) are covered. Any agency workers who have contracts with no fixed end dates will not qualify for protection on the basis that they are quasi-permanent, not temporary.

Whilst this is good news for employers facing challenges over agency worker status, pay and conditions or who want flexible staff with no risk attached, there is some uncertainty in that there will be instances where agency workers assignments blur the lines between temporary and permanent/open ended. To manage this problem, employers should ensure that assignments are not formally time limited. Although, Tribunals will likely look at the reality of the situation rather than what the contractual documents say, this safeguard will hopefully add credibility to an employer’s case and help resolve the matter without going to Tribunal. In any event, it is likely Parliament will step in to fill this loophole as it leaves some agency workers unprotected.

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Proposed TUPE amendments

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Parliament has amended the TUPE regulations, which are in force in respect of transfers occurring on or after 31 January 2014.

In brief, the changes include:

A new employer (with the old employer’s agreement) can elect to consult about large scale redundancies pre-transfer of the work force;
For a service provision change (e.g. outsourcing) to be covered by TUPE, the activities carried out by a new organisation must now be ‘fundamentally the same’ as those carried out by the old organisation;
Any purported variation of a contract of employment that is transferred under TUPE or the dismissal of an employee will still be automatically unfair if the ‘sole or principal reason’ for the variation or dismissal is the transfer. However if the sole or principal reason for the variation or dismissal is an economic, technical or organisational reason entailing changes in the workforce which expressly includes redundancies caused by relocations, then this is not unfair and a variation of terms may be valid;
Where a transferring employee’s contract of employment includes a collective agreement clause (i.e. where contract terms are updated as a result of negotiations between an employer and a trade union); any changes to collective terms agreed post-transfer without the new organisation’s approval will not automatically transfer;
The outgoing employer now has to provide “employee liability information” at least 28 days (rather than 14) before the transfer from and including 1 May 2014; and
Small businesses with less than 10 employers will be able to consult directly with employees (instead of representatives) affected by a TUPE transfer occurring on or after 31 July 2014.

These changes are intended to benefit employers. For example, the effect of (4) means that employers who inherit staff under TUPE from the public sector will have certainty over transferring employees salary costs when tendering for service contracts.

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