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Are employers’ bans on headscarves at work discriminatory?

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An employer’s ban on wearing religious symbols at work – headscarves, in particular – may or may not be directly discriminatory depending on the reason for the ban.

The European Court of Justice determined two cases where female employees had been prohibited from wearing their headscarves in the workplace. In the first, Achbita, the employer (G4S in Belgium) had a general policy of religious neutrality at work. Ms Achbita refused to comply with this rule, and was dismissed as a result. In the second, Bougnaoui, the French employer asked Ms Bougnaoui to remove her headscarf whilst at work after a customer complained about it. Ms Bougnaoui was dismissed following her refusal. Both women claimed to have been discriminated against on grounds of their religion.

The Court held that the general ban on religious symbols in Ms Achbita’s case was not directly discriminatory, in that it applied to all staff equally, but could in principle be indirectly discriminatory. What it came down to is whether the ban was justified. The steer from the ECJ was that the ban on all religious symbols may well be justified.

On the other hand, the employer’s decision to dismiss Ms Bougnaoui at the behest of its customer was directly discriminatory. A customer’s instruction not to wear a headscarf could not be considered a genuine occupational requirement, as it was subjective to that customer rather than objectively being a demand of the role in context.

Achbita v G4S Secure Solutions NV (Case C-157/15) & Bougnaoui v Micropole SA (Case C-188/15)

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Contractors may be covered by Gender Pay Gap reporting regulations

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The Gender Pay Gap reporting regulations are now in force, and guidance suggests that contractors’ earnings may need to be covered in the reports.

An employers’ obligation to report on the gender pay gap has been in existence since 6 April 2017, and Acas and the Government Equalities Office have now produced guidance to clarify the extent of that duty.

Of note within that guidance is the additional information on the treatment of casual workers and contractors. It has clarified that those who receive no pay during the relevant reporting period should be excluded from the pay gap calculations, though they should be part of the headcount.

In respect of self-employed contractors, where they are working under a contract to personally do work, the guidance says they should be included in both the headcount and the calculations insofar as relevant pay data is available. In some instances, a contractor’s invoices or schedules of fees may yield that data.

It remains the case that there is no penalty for failure to comply with the Regulations.

Acas and the Government Equalities Office: Managing gender pay reporting

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Proportionality and data subject access requests

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An employer must only conduct a proportionate search, and give a proportionate response, to data subject access requests it receives.

The Court of Appeal was faced with two cases concerning requests for further steps to be taken to comply with data subject access requests. In the first, Ittihadieh, the Claimant put in a DSAR to a right to manage company operating in respect of the building within which he owned a property. The Claimant expressed a concern that the members were “swapping, retaining and otherwise using personal information about him” and indicated that he intended to bring proceedings. The company disclosed 400 redacted documents, including one which referred to a separate file of documents which the company did not disclose.

In the second case, Deer, the Claimant had brought various claims against her former employer, Oxford University. She put in two wide-ranging DSARs; in response, the university disclosed some limited documentation but refused to provide information relating to the litigation. After the Claimant put in a further DSAR, the university eventually did disclose some more documents it had previously withheld. The Claimant, still dissatisfied with the extent of disclosure, applied for an order for further searches to be undertaken relating to 22 people within a specified date range. As the Court granted the order, the university reviewed a further 500,000 documents at a cost of £116,116. Having conducted this review, the university disclosed a further 33 documents.

The Court of Appeal refused to order either company to take further steps in relation to the DSARs. In Ittihadieh’s case, it was held that further searches would be “wholly disproportionate”, and in Deer’s case, that they would serve no useful purpose. It confirmed that data protection legislation was not intended to impose great burdens on data controllers and that a search can still be sufficient even if a controller has not searched high and low for personal data.

Employers faced with a DSAR from an existing or former employee therefore should not feel obliged to carry out an exhaustive search for personal data. If the person making the request then challenges that decision, employers should feel able to defend a little more bullishly against the suggestion that it should carry out overly lengthy or costly investigations.

Ittihadieh v 5-11 Cheyne Gardens RTM Company Ltd & others [2017] EWCA Civ 121

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At what point does a notice sent by post take effect?

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Unless there is an express contractual term stating otherwise, notice of termination of employment sent by post will take effect once the recipient has personally taken delivery of the letter.

Ms Haywood was employed by an NHS Trust. She was put at risk of redundancy at a consultation meeting, at which point she told the Trust she was due to go on holiday overseas. On 20 April 2011, the Trust sent 3 letters to Ms Haywood giving 12 weeks’ notice of her dismissal. The first was sent by recorded delivery; as Ms Haywood was not home, a slip was left at her house on 21 April. Ms Haywood’s father-in-law collected the letter from the sorting office on 26 April and left it at her house. Ms Haywood read the letter on 27 April, a few hours after her return from her holiday. The second letter was sent by standard post, and it is unclear what happened to it. The third was sent by email to Ms Haywood’s husband by email, which he read on 27 April.

The Trust would have to pay Ms Haywood a higher pension if she was dismissed after her 50th birthday; in order to avoid that, notice of termination must have been effective by 26 April 2011. The Trust argued that it had been.

The Court of Appeal noted that there was no express term in Ms Haywood’s employment contract specifying when notice sent by post would be effective. Where this is true, it held that notice will only take effect once the employee personally takes delivery of it. In Ms Haywood’s case, that meant that her notice was effective from 27 April 2011 (the date she read the hard copy letter; service to her husband’s email address was not valid given that she had not given permission for the Trust to communicate with her using it). The Trust was therefore obliged to pay a higher pension sum.

In light of this decision, employers may want to include in their contracts a provision stating when notices sent by post will be considered effective (2 days after the date of posting, for instance) in order to remove ambiguity.

Newcastle upon Tyne NHS Foundation Trust v Haywood [2017] EWCA Civ 153

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Wrongly advertising an apprenticeship is now an offence

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According to new legislation, it is now an offence for a training provider to use the word ‘apprenticeship’ to refer to an arrangement which is not a statutory apprenticeship.

The stated aim of the provision is to protect the quality of apprenticeships and to prevent lower quality schemes which do not meet the legal requirements from damaging the reputation of apprenticeships which do.

The offence is summary only, so the maximum penalty on conviction is a fine.

The Enterprise Act 2016 (Commencement No. 3) Regulations 2017 (SI 2017/346)

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Poor attitudes to organisational change can be gross misconduct

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An employee’s poor attitude towards organisational changes within their employer’s business could amount to gross misconduct.

Ms Adeshina was the Principal Pharmacist in Wandsworth Prison. Medical service provision at the prison was initially nurse-led, but a decision was taken to move towards a pharmacist-led approach. Ms Adeshina was resistant to this change. A letter was sent to her to institute a disciplinary investigation. Among the allegations in that letter was “failure as Head of Pharmacy Services at HMP Wandsworth to be cooperative and to support and lead the major service change in the Pharmacy Department which has resulted in a negative impact on the new treatment centre”.

The investigation report concluded that the allegations were founded. It described Ms Adeshina’s conduct by reference to 4 categories of gross misconduct set out in its disciplinary policy: bringing the Trust into “disrepute”; “serious insubordination”; “negligence”; and “verbal abuse”. Following a disciplinary hearing, Ms Adeshina was summarily dismissed for gross misconduct.

Ms Adeshina brought a number of claims in the Employment Tribunal. At the Court of Appeal, she argued that her conduct was not capable of amounting to gross misconduct, and could not have justified summary dismissal.

The Court of Appeal held that the employer was entitled to view Ms Adeshina’s conduct, in terms of her poor attitude to the changes to the structure of medical treatment at the prison, as amounting to gross misconduct. It found nothing wrong in the employer saying that Ms Adeshina’s conduct fell into a number of categories listed in its disciplinary policy. In any event, the Court held that a finding that Ms Adeshina had been “ostentatiously disengaged” or “expressing strongly disaffected views” could be evidence of gross misconduct by itself.

Employers can take some degree of reassurance from this case; not only does it confirm that a poor attitude to management decisions can found a dismissal in some circumstances, but it also shows that it is not critical to the fairness of a dismissal to give a consistent label to the misconduct alleged.

Adeshina v St George’s University Hospitals NHS Foundation Trust and others [2017] EWCA Civ 257

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Employers must now pay Immigration Skills Charge

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Employers must now pay an Immigration Skills Charge of up to £1,000 per year for each skilled migrant they employ.

New regulations mean that employers must pay a fee, called the Immigration Skills Charge, for every skilled migrant they sponsor under the Tier 2 (General) or Tier 2 (Intra Company Transfer) categories. The fee per migrant is £1,000 per year for larger companies and a reduced rate of £364 for smaller companies.

It is the employer’s responsibility to pay this fee, and failure to do so will mean that a certificate of sponsorship is invalid.

The Immigration Skills Charge Regulations 2017

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No need to prove reason for disadvantage in indirect discrimination

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In order to successfully establish indirect discrimination, claimants do not have to prove the reason why a practice puts their affected ethnicity, gender, etc. at a particular disadvantage.

The Supreme Court has considered two cases concerning indirect discrimination. The first, Essop, concerned the Home Office’s Core Skills Assessment test, which had to be completed successfully in order to progress past a certain level of seniority. The Claimants were a group of employees from black and minority ethnic backgrounds over the age of 35; on the basis of statistical evidence, they argued that they as a group were less likely to pass the test, and were therefore at a particular disadvantage.

The second, Naeem, concerned the Prison Service’s pay structure, which contained a scale based in large part on length of service. The Prison Service had only begun employing non-Christian chaplains in 2002 (prior to that, they had been engaged on a sessional basis). Mr Naeem, a Muslim chaplain who began his employment in 2004, argued that the length of service criterion therefore put Muslim chaplains at a particular disadvantage.

Considering these cases, the Supreme Court held that there is no need for Claimants to prove the reason why a particular practice puts a group at a particular disadvantage. It was therefore not a problem that the Claimants in Essop had not done so. What was instead necessary was to show that the disadvantage was caused by the practice (as opposed to something unconnected, such as not turning up for the test), and the statistics the Claimants had put forward in relation to test results for black and minority ethnic staff over the age of 35 were evidence of that. The “context factor” for the disadvantage could involve all sorts of things, including genetics (such as a height requirement), social norms, or traditional employment practices.

The Supreme Court also held that the “context factor”, which, in Naeem, was the shorter average length of service of Muslim chaplains, need not be related to the protected characteristic. By analogy, it reasoned that there is nothing peculiar to being a woman which explains why they usually take a larger share of caring responsibilities.

These clarifications are helpful to Claimants seeking to establish indirect discrimination. However, the Supreme Court also emphasised that an employer will still always have the opportunity to show that its practice was justified, and therefore not discriminatory. This was the outcome in Naeem, as it was legitimate and proportionate for the Prison Service to reward longer service with higher pay.

Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017] UKSC 27

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British Gas refused permission to appeal on holiday pay case

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British Gas has been refused permission to appeal to the Supreme Court over a decision that holiday pay must include results-based commission.

Mr Lock was employed by British Gas. Although he received a basic salary, 60% of his overall remuneration comprised commission on sales achieved. However, his holiday pay was calculated solely by reference to his basic pay, and was therefore considerably less than his usual pay. As a result of this, Mr Lock brought a claim against his employer.

The European Court of Justice, Employment Appeal Tribunal and Court of Appeal all ruled that statutory holiday payments must include a representative proportion of the results-based commission Mr Lock would normally receive.

The Supreme Court’s refusal means that it is now set in stone that employers must factor such pay elements into the 4 weeks’ statutory holiday; however, as the underlying right originates from European law, it is unclear at this stage whether there will be any revisions post-Brexit.

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Employer given £2 in damages for misuse of confidential information

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An employer who had sought £15 million in damages for misuse of its confidential information has been awarded only £2 for its former employees’ breaches of their confidentiality duties.

Marathon Asset Management LLP is an asset management firm and one of its founders, Mr Seddon, left to set up a competing business, taking with him a number of Marathon’s staff. Among those staff was Mr Bridgeman. Marathon brought a claim in the High Court against Mr Seddon and Mr Bridgeman alleging that they had taken its confidential information before they left the firm.

Mr Bridgeman admitted that he had copied a large number of Marathon’s confidential documents on to a USB stick before he left, and that he retained them for some time. He conceded that, in doing so, he was in breach of contract. Some of the documents Mr Bridgeman had downloaded to his USB stick were accessible to him because Mr Seddon had previously moved them to a shared drive.

All parties agreed that Mr Seddon had not used any confidential information. Mr Bridgeman had used a small number of documents, but that use had not caused Marathon any significant loss.

Marathon argued that it should be entitled to damages of £15 million, representing the value of the confidential information taken. Marathon assessed that this sum would have been a reasonable charge for releasing the ex-employees from their duties of confidentiality.

The High Court recognised that both Mr Seddon and Mr Bridgeman had been in breach of their duties of confidentiality and their contracts. However, those breaches had not caused Marathon any loss, and there was nothing to show that either Mr Seddon or Mr Bridgeman had made any gain. Therefore, the High Court held that there was no justification for anything more than nominal damages of £2. This equated to £1 per defendant.

This case illustrates that it is not the risk of loss which matters, but the actual loss suffered. An inability to quantify the amount of loss is not necessarily a problem, but being unable to show any loss at all most likely will be.

Marathon Asset Management LLP and another v Seddon and another [2017] EWHC 300 (Comm)

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