Asda equal pay claims get a green light

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Asda equal pay claims get a green light

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Asda’s female shop-floor workers are able to compare themselves to their male colleagues in the distribution centres for the purposes of an equal pay claim.

The equal pay claims relate to the fact that a number of female workers in Asda’s stores learned that male operatives in the retailer’s distribution centres were paid higher hourly rates. The female employees argued that their jobs were comparable with those in the distribution centres such that there should not be a pay disparity. Asda, on the other hand, argued that the two kinds of job could not be compared for equal pay purposes, in part because terms and conditions for each arm of the business came from different sources.

The employment tribunal held that the retail employees were entitled to compare themselves with employees in the distribution centres. It found that there was a single source for the terms and conditions applicable in retail and distribution. Whilst they were separate operations, the Executive Board had control and oversight over both of them. The terms and conditions under which the retail staff worked were broadly similar to those applicable to distribution staff, and that sufficed to found an equal pay claim.

This case is still very much in its early stages; however, it is helpful to know that workers in different operations within the same large company can be comparators in an equal pay sense. Given the size of the potential award at stake (estimated to be in excess of £100 million), much hinges on this preliminary decision and Asda may choose to appeal.

Brierley and others v Asda Stores ET/2406372/2008

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Further decision on Northern Ireland ‘gay cake’ case

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Further decision on Northern Ireland ‘gay cake’ case

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A Christian bakery’s refusal to bake a cake bearing a message in favour of legalising same-sex marriage was discriminatory.

Mr Lee went to the Ashers Baking Company in Northern Ireland, which was run by the McArthurs, who were devout Christians. Mr Lee ordered a cake bearing the message “Support Gay Marriage”. The McArthurs refused the order on the basis of their Christian beliefs in marriage. Mr Lee brought a discrimination claim against the bakery.

The Court of Appeal in Northern Ireland held that Mr Lee had been discriminated against. Whilst the religious beliefs of those providing a service are protected, they do not permit the bakery to choose which services it offered to the gay community. The Court of Appeal held that, were that the case, the potential for abuse would be substantial.

An interesting point about this case is that the Court of Appeal determined that Mr Lee had suffered associative rather than direct discrimination. That is to say that, rather than the bakery refusing Mr Lee’s order because he was gay (which he was), they refused the order because of his association with pro-gay views. As the Court of Appeal noted, “many heterosexual people support gay marriage and some gay people oppose gay marriage”.

Lee v McArthur and Ashers Baking Company Ltd [2016] NICA 39

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Being a whistleblowing champion

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Being a whistleblowing champion

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The last decade has not been a halcyon one for financial services. The collapse of Lehman Brothers and PPI misselling are two scandals that have contributed to one of the most turbulent periods in the industry’s history.

It is not only the public and politicians who were aghast at these events. Those close to the FCA say that that the regulator was astonished at the lack of individuals raising concerns about these matters before they erupted into highly publicised scandals.

It would be churlish to suggest that these scandals could have been averted by individuals “blowing the whistle” – but had employees close to the heart of these matters had been able to provide the regulator with valuable intelligence, the effect of the scandals may well have been mitigated.

It is to address exactly that problem that the FCA has introduced the Senior Managers Regime, which takes effect on 7 September 2016. Every deposit taker (banks, building societies and credit unions) with £250m or more in assets must implement a raft of changes designed to encourage accountability. Insurance firms are also affected. In a comment lifted straight from the pages of Game of Thrones, the FCA say that the new regime is not designed to achieve “heads on sticks”. That said, if processes are not implemented properly, the buck stops with the Senior Managers who have been appointed by the firms, with the 300-odd words each have agreed as their “Statement of Responsibilities” being the principles they will be held to if things go wrong. Even if the Senior Managers Regime does not directly apply to your firm, it indicates the good practice principles that the FCA want the financial services industry to live by.

The FCA’s desire to reform and implement a culture shift is clear. The regulator wants to see the days of whistleblowers suffering personally for speaking out (whether through marginalisation, dismissal, or the tried and tested method of zero bonuses) – consigned to the same scrapheap as smoking in the workplace. It is on that basis that the FCA require firms to appoint a “whistleblowers’ champion” to ensure that staff know that they can raise their concerns internally or approach the regulators directly and not suffer as a consequence.

What is whistleblowing?

The types of disclosures that the FCA want whistleblowers’ champions to be concerned with are wide ranging. They will include concerns about breaches of regulatory rules, failures to comply with the firm’s policies or procedures, or any behaviour that harms or is likely to harm the firm’s reputation or financial wellbeing. This is actually a wider definition of “whistleblowing” than under the Public Interest Disclosure Act.

Accordingly, the matters falling under a whistleblowers’ champion’s remit could range from a complaint from a senior colleague that a major pension fund lacks liquidity to meet its long-term liabilities, to a summer intern complaining that their lunch expenses have not been paid. Whilst this wide approach to allow disclosure on all types of topic sounds alarming, the FCA have been keen to emphasise that everyday differences of opinion or customer complaints do not need to be escalated through the whistleblowing arrangements – your firm will already have well-established procedures to deal with these.

I’ve been appointed as a whistleblowers’ champion – what should I expect?

You will be relieved to know that it is not your job to judge whether a particular whistleblowing disclosure is genuine or not. Your responsibility is to ensure and oversee the “integrity, independence and effectiveness” of your firm’s procedures for whistleblowing. You will be the figurehead that whistleblowers look to for protection – as it is your job to ensure that there are procedures in place to ensure individual complainants are protected from detrimental treatment.

No-one will expect you to change your job description to describe yourself as the “whistleblowers’ champion”, but make no mistake, this is a heavy responsibility. The FCA recognises this, saying that it will only be heavy-hitters like non-executive directors who can become the whistleblowers’ champion, and only Senior Managers need apply.

What practical steps can I take to ensure compliance?

If you work in a large firm, you won’t be required to be open to direct approaches from would-be whistleblowers – but think carefully about turning anyone away who approaches you with a concern. Of course, you will delegate much of your day-to-day whistleblowers’ champion functions to trusted colleagues. But retain oversight over those who you delegate to – whether that is through regular catch-up meetings with them or formalising the arrangements by establishing a direct reporting line over them.
If you work in a smaller firm, you’ll be expected to take a more “hands-on” role – not only receiving disclosures personally, but tracking their progress and reporting back to whistleblowers where appropriate.
You should regularly check on internal processes to make sure that all colleagues’ disclosures are being handled properly. Work closely with business units to implement the new regime. Make sure that colleagues are aware of the FCA’s own Intelligence Department (a.k.a. the FCA whistleblowing hotline) – whistle@fca.org.uk.
Consider becoming a “mystery shopper”. The FCA are likely to be impressed if you issue a test complaint as an anonymous member of staff to stress-check that the procedures are being implemented effectively.
Watch out for whistleblowers being treated badly. Your duty will be to ensure there are proper procedures in place that to deal with all such types of disclosures from all types of person (including secondees, interns, volunteers, contractors, customers, agency staff, suppliers and even employees of competitors). If you find out that a whistleblower has been marginalised, you will be required to find out why. Every year you should consider asking why zero bonuses have been awarded to staff and taking steps to investigate that this is not because they have made a complaint.
Get authority and a budget. The FCA will expect you to take legal advice where appropriate. The likelihood is that if you are concerned about a whistleblowing matter in your firm, the FCA would not be satisfied with you only speaking to your firm’s in-house General Counsel. So make sure that you have sufficient authority to be able to quickly take independent legal advice, without needing to seek approval from layer after layer of management.
Protect yourself. Make notes. In your fast-paced role you may not be used to this practice, but in order to show that you’ve discharged your duties, you’ll need evidence. Keep a diary of the steps you take in your new role.
Be prepared for annual inspections. Your firm will be required to prepare a yearly report for the board on how its whistleblowing procedures have operated that year. So your performance in the role will be annually monitored. What’s more, you’ll b entitled to oversee the preparation of that report as part of your role as the whistleblowers’ champion.
Keep learning and arranging training. Not only will it be your responsibility to oversee the provision of training for your firm’s UK-based employees and their managers, the FCA will expect you to undertake the necessary training courses to stay up-to-date on whistle-blowing developments. Informative training sessions are regularly delivered by lawyers and the whistleblowing charity, Public Concern at Work. Make sure that you plug any gaps in your knowledge to show that you are able to discharge your duties.
Monitor what happens to departing employees. Ask to see samples of the severance agreements your firm enters into with departing employees. While you won’t be required to oversee every one of these, you should ensure that your firm does not have a practice of putting gagging clauses in these agreements to prevent former employees from blowing the whistle after they leave. You will need to monitor that your firm is complying with its duty to inform the FCA if it loses an Employment Tribunal hearing for victimising a whistleblower. Consider if any lessons can be learned from the findings of an Employment Tribunal claim.
Be ready to challenge. You’re now entering a phase of your career where rather than nodding along to management’s suggestions, you’ll have a duty to question and, even, challenge and change your firm’s practices.

There is no regulatory duty on general staff to blow the whistle or a regulatory duty to investigate whistleblowing disclosures, but the number of disclosures is on the up. The number received by the FCA more than quadrupled between 2009 and 2014 from a total of just 276 in 2009 to 1,376 in 2014. Why the increase? There are a few potential explanations. Perhaps your colleagues are becoming more confident at raising disclosures and challenging where they see wrongdoing. Perhaps your colleagues are using disclosures to the FCA as a negotiating tactic. Either way, the trend is that whistleblowing is on the increase and the FCA want to see more of it.

One thing is for sure as a whistleblowers’ champion – life won’t be a hoot!

Arpita Dutt and Paul McAleavey

As originally published in FT Adviser on 13 September 2016

Discrimination damages for insincere job applications

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Discrimination damages for insincere job applications

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If a person applies for a job only for the purposes of bringing a discrimination claim, rather than genuinely wanting the job, they will not be entitled to compensation under discrimination law.

A German company, R + V Allgemeine Versicherung AG, advertised for graduate trainees in various disciplines, including law. Applicants to the legal roles were required to have passed their qualifications, done an employment option, and/or have medical knowledge.

Mr Kratzer applied for a legal position. He stated that he was a lawyer and former manager with an insurance company. He said he was going to do a course in employment law and, as he had dealt with the death of his father, he had experience of dealing with a large medical law file.

Mr Kratzer’s application was rejected, after which he wrote to the company demanding compensation of €14,000 for age discrimination. The company invited him to an interview, stating that his application had originally been rejected via an automatically generated response. Mr Kratzer declined and brought a claim for damages for age and sex discrimination.

The Court of Justice of the European Union held that Mr Kratzer was not entitled to compensation. Discrimination legislation is intended to protect those who are victims of discrimination whilst they are seeking employment. As Mr Kratzer was neither a victim nor seeking employment, his claim had no basis.

Kratzer v R + V Allgemeine Versicherung AG (C-423/15)

Injury to feelings payment for sexual harassment

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Injury to feelings payment for sexual harassment

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A woman who was sexually harassed by her employer has been awarded £14,000 as compensation for injury to feelings.

Ms Majid was employed by AA Solicitors while she was taking the legal practice course. The firm’s only solicitor, Mr Ali, sexually harassed Ms Majid in a number of ways. This included asking her out, commenting on her figure, talking about putting a bed in the spare office, and touching her in ways that made her feel uncomfortable. Ms Majid was dismissed once she rejected Mr Ali’s advances.

The majority of Ms Majid’s claims for sexual harassment were upheld. The Employment Tribunal awarded Ms Majid a modest sum for lost earnings, £14,000 for injury to feelings and £4,000 in aggravated damages.

The award in this case is notable, as it is likely significantly more than Ms Majid earned in the 6 weeks or so she was working at the firm.

AA Solicitors Ltd (t/a AA Solicitors) and another v Majid [2016] UKEAT 0217/15

Privacy Shield – employers’ data protection duties

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Now that the European Commission has adopted the Privacy Shield (which replaces “Safe Harbour”), there are steps which US companies will need to take to ensure that they comply with data protection law when transferring data from the EU and EU companies need to take if transferring data to the US.

Since the old system, the ‘Safe Harbour’ regime, was found to be invalid by the Court of Justice of the European Union, the Privacy Shield has been approved to replace it. It requires companies based in the US to self-certify their compliance to the framework. The US Department of Commerce is now accepting certification requests.

After that point, companies will need to self-certify on an annual basis, publish a privacy policy on their websites, have a procedure for responding to complaints within 45 days and comply with the various Privacy Shield principles (which are very similar to our own under the Data Protection Act). The US Department of Commerce will monitor companies to ensure that all requirements are met.

EU companies need to ensure that any company in the US to whom they send data is appropriately signed up.

Headteacher dismissed for relationship with sex offender

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Headteacher dismissed for relationship with sex offender

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A headteacher’s decision not to inform her school of her non-romantic relationship with a convicted sex offer was a fair basis for dismissal.

A was appointed as a headteacher of a primary school in 2009 having 23 years’ unblemished service in teaching. She had a long-standing relationship with a man, IS, which, whilst not romantic, was more than simply financial – they holidayed together and jointly owned a house in which IS lived and A occasionally stayed. In 2010, IS was convicted of making indecent images of children and was restricted from contact with children.

A sought advice from various sources, including police and governors at another school, regarding whether she should disclose her relationship with IS. She understood from those she spoke to that it would not be necessary.

The school later learned of A’s relationship with IS and of his conviction. It suspended A and, after investigating, dismissed her for gross misconduct on the basis that the failure to disclose conflicted with her safeguarding duties and had put children at risk. The school also relied on A’s refusal to accept that she was in error in not disclosing her relationship. A’s appeal against the decision was dismissed.

The Court of Appeal held that the school’s decision to dismiss A was within the range of reasonable responses to the situation. Given that A was a headteacher with safeguarding responsibilities, she should have realised that she had a duty to inform the school of her association with IS. The fact that A failed to report it, and then failed to acknowledge her error, made her dismissal reasonable. The Court of Appeal noted that the school did not point to exactly what risks were posed to the children by A’s association with IS, but held that this was not necessary because it was easy to imagine the potential issues.

The judgment made clear that dismissal due to an association with someone like IS would not inevitably lead to dismissal in every case. The key here seemed to be A’s reaction to the situation. However, it is not clear from this case in which circumstances teachers would be justified in not disclosing this kind of information.

A v B and another [2016] EWCA Civ 766

When are whistleblowers protected from dismissal?

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When are whistleblowers protected from dismissal?

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A dismissal can be automatically unfair even in circumstances where the decision-maker was unaware that the employee had blown the whistle.

Ms Jhuti worked for Royal Mail from September 2013. Soon after she started working there, she accompanied a colleague to a customer meeting and suspected that some of the things said in that meeting breached Royal Mail’s rules and regulatory requirements. Ms Jhuti raised her concerns with her line manager, Mr Widmer, but was told that she had misunderstood the rules and was advised to retract her allegation. She reluctantly did so.

Mr Widmer began setting Ms Jhuti unattainable performance targets and required her to attend frequent supervision meetings. After putting in several complaints to HR, Ms Jhuti went on sick leave and raised a grievance.

Another manager, Ms Vickers, was appointed to examine Ms Jhuti’s case but was unaware of her disclosures. Mr Widmer mentioned to Ms Vickers that Ms Jhuti had previously made allegations, but that she had then withdrawn them. Ms Vickers accepted this and, as Ms Jhuti was on sick leave, did not probe any further. Ms Vickers terminated Ms Jhuti’s employment for poor performance.

Ms Jhuti brought a claim for automatically unfair dismissal on the basis of her whistleblowing disclosures.

The Employment Appeal Tribunal upheld Ms Jhuti’s claim on the basis that it did not matter whether Ms Vickers, the dismissing officer, knew of Ms Jhuti’s protected disclosures when she made her decision. The EAT stated that where one person who is unaware of the true situation is manipulated by another person at managerial level, and that manager does have the true facts, the employer can be held responsible for the ultimate decision.

This case tries to circumvent the problem whereby employers could escape liability for whistleblowing dismissals by putting an unwitting manager in the role of dismissing officer.

Royal Mail Group Limited v Jhuti UKEAT/0020/16

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Headscarf ban was direct discrimination

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Headscarf ban was direct discrimination

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A French employer’s ban on employees wearing religious signs (in this case, a female, Muslim employee wearing a headscarf) was directly discriminatory on grounds of religion.

Micropole in France hired Ms Bougnaoui, a Muslim woman, to work as a design engineer. When doing so, Micropole emphasised that Ms Bougnaoui’s role would be customer-facing so that she would not be able to wear her headscarf at all times. Later, a customer complained to Micropole that Ms Bougnaoui had been wearing her headscarf and the company stated that they did not want her to wear it in future. Ms Bougnaoui refused and Micropole dismissed her. Ms Bougnaoui brought a claim for religious discrimination.

Advocate General Sharpston gave her opinion that a ban on employees wearing religious symbols or clothing when in contact with customers constitutes direct discrimination on grounds of religion. The opinion found that Ms Bougnaoui had been dismissed because of her manifestation of her religion, and the right to manifest one’s religion is protected within the religious discrimination legislation.

Advocate General Sharpston rejected the argument that there was a genuine occupational requirement for the ban to be in place as nothing suggested that Ms Bougnaoui’s performance was affected by her choice to wear her headscarf. Whilst Micropole may have a financial interest in terms of its relations with its customers, it could not justify discrimination.

This decision conflicts with the recent opinion of Advocate General Kokott in Achbita, which found a very similar policy against wearing religious symbols to be lawful. Both cases will go to the Court of Justice of the European Union for determination, at which point the Court can clarify the position.

Bougnaoui and another v Micropole SA (Case C-188/15)

Byron: Illegal working and employers’ duties

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Byron: Illegal working and employers’ duties

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Migrant workers and swarms of locusts may sound like warnings from a Leave campaign flyer, but they were factors present in one of the most controversial employment law stories of recent years.

The Byron burger restaurant chain is embroiled in allegations that it duped a large number of its kitchen staff into attending what it said would be a training session, which turned out to be a covert and jointly arranged event with the UK Border Agency.

Rather than being trained on the dangers of undercooked burgers, 35 of the kitchen staff were arrested by immigration officials on suspicion of working illegally. The arrests are said to have taken place with Byron’s ‘full co-operation’.

Fair reason and process

Employers have competing legal obligations to prevent illegal working whilst also maintaining the trust and confidence of their employees. These obligations can generally co-exist peacefully but can clash where an employer suspects that employees are working illegally.

Byron should have carried out document checks on those employees before they started employment. This is to establish the employer’s defence under the Immigration, Asylum and Nationality Act 2006 to avoid potentially unlimited fines or even a prison sentence (which can be applied as a sanction if an employer knows, or as a result of changes introduced on 12 July 2016, has reasonable cause to believe, that an employee is working illegally).

If the employees had two or more years of service, Byron would have needed a fair reason and to follow a fair process in dismissing them (provided they could show that the illegality involved here did not remove their unfair dismissal rights).

If continued employment would be breaching the law (such as the 2006 Act), this provides a potentially fair reason for dismissal. Whilst the alleged duping of the employees falls as far away from a fair process as one can imagine (especially since it appears the employees had no idea an outcome of the ‘training day’ could be dismissal), their redress is limited. Byron would no doubt say that it still would have dismissed the employees in any event by following a fair process, as its relationships with the staff were fatally wounded by the fact the law would have prevented their continued employment.

Byron had a legal duty to each of the employees not to act in such a way that was calculated or likely to destroy or seriously damage mutual trust and confidence without reasonable and proper cause. Sadly for those employees, whose experience that day puts any bad day at the office in perspective, Byron’s seeking to prevent illegal working may amount to ‘proper cause’.

Discrimination claims

Employers must tread carefully when complying with requests for compliance from the Border Agency. Targeting staff of a particular nationality could expose an employer to discrimination claims for which compensation is uncapped. Byron reportedly called all kitchen staff to the ‘training day’, which will help deflect claims that this was an act of discrimination on the grounds of nationality.

While the defence of illegality is generally fatal to an illegal worker’s claim, the Supreme Court’s decision in Hounga v Allen [2014] UKSC 47 suggested that in extreme circumstances where employees are being abused or ill treated, the defence of illegality does not necessarily bar an illegal worker from bringing a discrimination claim.

However, it is not only Theresa May’s announcement that ‘Brexit means Brexit’ that spells bad news for migrants hoping to work in the UK. In June 2016, the Supreme Court distinguished discrimination on the grounds of immigration status (as lawful) from discrimination on the basis of nationality (which is unlawful) in Taiwo v Olaigbe and another [2016] UK SC 31.

Migrant workers seeking to bring discrimination claims would need to show that the discrimination was on the grounds of a characteristic protected by the Equality Act, such as nationality. For the Byron staff, this would have been difficult as there are citizens of their nations (including Brazil and Egypt) who are legally in the UK.

For Byron, the damage is likely to be more reputational than legal. After the scandal, a group of protestors released live locusts into two of its central London restaurants. The burger chain may also have harmed its relationships with their existing employees, whose trust may have been lessened by the scandal.

This article by Paul McAleavey was originally published on 16 August 2016 in the Solicitors’ Journal.

Overcoming the secrecy behind pay inequality

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Overcoming the secrecy behind pay inequality

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Last week Massachusetts become the first US state to take steps to ban employers from asking applicants about their current salary during the interview process. This legislation is being introduced to tackle the gender pay gap within the state. At present, women in Massachusetts are paid 82 cents for every dollar earned by their male counterparts. Given that women traditionally earn less than men, women are arguably likely to start off on lower salaries. Companies therefore seek to benefit from this imbalance by asking about current salary levels – let’s face it, what company would pay more than they need to in order to get their chosen candidate?

The law, which is due to take effect on 1 July 2018, also provides that companies can no longer ban employees from discussing their salaries. Whilst it is unlikely that HR will tell women in Massachusetts how much ‘John from accounts’ is earning in comparison to themselves given confidentiality and data protection issues, it is hoped that permitting frank discussions between employees will lead to women feeling more empowered to push for pay rises.

So what is the position in the UK?

Well, gender pay equality is still a real issue. Despite the introduction of the Equal Pay Act 46 years ago, women on average earn just over 19% less than men. To put this in stark terms, the Fawcett Society (a charity which campaigns for gender equality and women’s rights) estimates that this year, women will effectively stop earning relative to men on 10 November 2016.

The UK does have a raft of equality laws, but nothing so far to prevent employers from asking candidates about current salaries.

However, whilst companies can request that employees keep their salaries confidential, section 77 of the Equality Act 2010 makes pay secrecy clauses in contracts of employment unenforceable to the extent that it prevents an employee from finding out whether or to what extent there is a connection between pay and a particular protected characteristic, e.g. to find out if pay is connected to his/her gender, age, race, sexual orientation or disability.

Section 77 also makes it unlawful to victimise an employee for making or seeking disclosures about this connection between pay and gender or other protected characteristic.

So, if a woman asks her male colleagues about how much they are paid because she is concerned that she is being paid less for carrying out the same or similar work, it would be unlawful for the employer to sanction her in any way for asking the question.

In addition, the government has recently published the draft Equality Act 2010 (Gender Pay Gap Information) Regulations 2016 to attempt to redress the gender pay gap issue. This will require companies with over 250 employees to publish information about pay and bonuses on a yearly basis, with the first reports due in April 2018.

The upcoming gender pay reporting duties oblige companies to publish:

overall gender pay gaps, showing the mean and median pay for both sexes;
the number of men and women in each of the 4 pay bands (lowest to highest salaries) to show how pay differs at different levels of seniority; and
information on pay gaps relating to bonuses and the proportion of males/females who received a bonus.

However, before we can all start rejoicing, the draft Regulations do not contain any enforcement provisions or sanctions. It seems, therefore, that the government is relying upon negative publicity to drive companies with a large gender pay gap to reduce this. Whilst it might be preferable to give women enforceable rights, the publicity approach may not be as toothless as it seems. In a government consultation on this, 84% of women aged between 16 and 30 said they would consider a company’s gender pay gap when applying for a job and 80% would compare data across companies when applying.

It is hoped that these measures, not only in the UK but also across the pond, will redress this seemingly worldwide issue at a faster rate. This may not be difficult in practice given that Frances O’Grady, General Secretary of the TUC, has estimated that in the UK it will take another 47 years to reduce the gap at the current rate of progress.

Samantha Prosser, Solicitor

What to expect in equality law

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What to expect in equality law

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Equality Law is an area which can change rapidly. Below is a summary of some of the bigger changes expected in the coming months and years.

Equal Pay

A class-action claim has been brought by Asda’s female shop floor staff, who argue that their pay should be the same as male workers in the company’s distribution centres. The claim is expected to be heard by the Employment Tribunal this year, at which point it would need to consider whether the claimants and their male colleagues do work of equal value. Whilst this claim is not the only one of its type given that Sainsbury’s staff have already brought a similar claim, a win could encourage yet more supermarket workers to seek legal redress.

In large firms with over 250 staff (Sainsbury’s and Asda included), data will need to be published regarding the gender pay gap. Whilst companies’ first reports are not due until April 2018, employers would be wise to review their pay practices now and ensure that they are able to comply with reporting requirements.

Discrimination at work

The Court of Justice of the European Union has heard cases on whether an employer’s decision to prohibit female Muslim staff from wearing headscarves at work amounts to religious discrimination (Bougnaoui v Micropole Univers and Achbita v G4S Secure Solutions).

The Advocate General’s view in Achbita was surprising, finding that outward symbols of religion could effectively be ‘left at the door’, such that a policy prohibiting them did not discriminate. It will be interesting to see if the CJEU follows this decision (either in Achbita or in Bougnaoui).

Discrimination in services

The well-publicised ‘gay cake’ case, Ashers Baking Co v Lee, will go before the courts again. The bakery has appealed against the judgment that it discriminated against a potential customer by refusing on religious grounds to bake a cake bearing a pro-gay marriage message. Whilst the Northern Irish courts’ decisions do not bind courts and Tribunals in England, the decision will still be persuasive when faced with similar cases.

In England, the Supreme Court must consider the rights of wheelchair users on buses. An appeal has been instituted against the Court of Appeal’s decision that it was not disability discrimination for a bus company to ask – but not to require – that other passengers move to make room for a wheelchair user.

Family-friendly rights

It may only have been in place for a year, but the government is expected to be simplifying the rules on shared parental leave in the near future. A consultation will also be launched into whether the rules should permit leave to be split with grandparents as well as between the parents.