Refusal to permit a 5-week holiday was not religious discrimination

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Refusal to permit a 5-week holiday was not religious discrimination

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The refusal of a Catholic employee’s 5-week holiday to attend religious festivals was not indirect religious discrimination.

Mr Gareddu was a practicing Roman Catholic originating from Sardinia. He worked as an engineer for the London Underground. Mr Gareddu was contractually entitled to 38 days’ holiday per year inclusive of bank holidays, and in the past he had been permitted to take 5-week long holidays in summer to return to Sardinia.

A new manager was allocated to Mr Gareddu from March 2013. The new manager told Mr Gareddu that he would not be permitted to take 5 consecutive weeks’ annual leave again in the following year, and that a limit of 15 consecutive days would apply in future. Though Mr Gareddu’s 2014 break was permitted to go ahead because it was pre-booked, his request for 5 weeks’ leave in 2015 was rejected.

Mr Gareddu challenged that refusal on the basis that it was indirectly discriminatory on the basis of his religion. He argued that he utilised the 5-week holiday to attend 17 or 18 ancient Roman Catholic festivals in Sardinia held in and around August each year, and that London Underground’s 3-week limit therefore put him at a particular disadvantage compared to those without the same religious beliefs.

The Employment Appeal Tribunal rejected Mr Gareddu’s argument and agreed with the Employment Tribunal’s decision that he had not been discriminated against. Evidence elicited at trial showed that Mr Gareddu had not attended any festivals whilst in Sardinia in 2014 due to injury, and in 2013 had only attended 9 of the 17 or 18 festivals he stated were important to his beliefs. The EAT accepted that it was not a problem for Mr Gareddu to have mixed motivations for taking the 5-week holiday, so the benefit of seeing his family did not defeat his claim; however, the notion that he was required to attend the full regimen of festivals each year did not appear to be a genuine reason for his holidays.

In this case, had the need to attend the festivals been found to be a genuine reason for the need to take an extended holiday, the disadvantage to Mr Gareddu may have been made out. However, it may then have been possible for London Underground to assert that their decision was justified as a proportionate means of achieving a legitimate aim.

Gareddu v London Underground Ltd UKEAT/0086/16

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When does workplace stress amount to a disability?

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When does workplace stress amount to a disability?

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Work-related stress which is the product of unhappiness with a particular situation may not of itself amount to a disability.

Mr Herry was employed as a design and technology teacher and part-time youth worker. From May 2010, Mr Herry was signed off work regularly and as of June 2011, he was signed off work entirely. Whilst the earlier absences were attributed to physical injuries, later GP certificates all referred to work-related stress.

He brought Employment Tribunal proceedings against Hillcrest School and Dudley Metropolitan Council relating to 90 allegations over a 4 year period. Among them were allegations that Mr Herry had been discriminated against on grounds of his disabilities, which he claimed were dyslexia and stress/depression.

The Employment Tribunal had made adjustments to take into account Mr Herry’s dyslexia, but found that he was not disabled at the time to which his allegations related. Neither his dyslexia nor his stress had substantial adverse effects on his ability to carry out day-to-day activities. The Tribunal took the view that Mr Herry’s stress was “very largely a result of his unhappiness about what he perceives to have been unfair treatment of him, and to that extent is clearly a reaction to life events”.

The Employment Appeal Tribunal similarly dismissed Mr Herry’s disability discrimination claims. The Tribunal’s decision to make adjustments had no bearing on whether either condition was a disability given how different long-running litigation is to Mr Herry’s ordinary professional life. Also, medical evidence from the relevant time showed Mr Herry was taking no medication for his stress and Occupational Health had ruled him fit to work.

The EAT ruled that, on the facts, stress caused by being unhappy with a decision or colleague was not a mental impairment; Mr Herry could not therefore be disabled. This follows an earlier case, which ruled that tribunals should take particular care before finding that a mental impairment exists if the only manifestation of work-related stress was an unwillingness to return to work until an issue is resolved to the employee’s satisfaction. This is a helpful decision for employers faced with the all-too-common problem of a prolonged employee absence prompted by the onset of a disciplinary or grievance process.

Herry v Dudley Metropolitan Council and Governing Body of Hillcrest School UKEAT/0100/16 & UKEAT/0101/16

Teacher’s dismissal for showing horror film to pupils was discriminatory

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Teacher’s dismissal for showing horror film to pupils was discriminatory

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An employer’s decision to dismiss a disabled employee for gross misconduct which was seemingly unrelated to the disability amounted to discrimination arising from disability.

Mr Grosset was Head of English at a school operated by the City of York Council. He suffered with cystic fibrosis, which the Council agreed amounted to a disability. As a result of his condition, Mr Grosset had to spend up to 3 hours a day doing gruelling physical exercise to clear his lungs.

A new Head Teacher was appointed who brought in various new initiatives at the school, leading to an increase in Mr Grosset’s workload. Given the time he had to spend exercising, the additional workload proved very stressful to Mr Grosset, and the stress in turn exacerbated his cystic fibrosis.

During this period, Mr Grosset showed ‘Halloween’, a violent horror film with a certificate of 18, to a group of vulnerable 15 and 16 year olds. The Council suspended Mr Grosset pending an investigation into potential gross misconduct. When interviewed, Mr Grosset agreed that he had made an error of judgment but explained that he had been under significant stress, contributed to by his cystic fibrosis. The medical evidence available to the Council at the time did not suggest any link between Mr Grosset’s disability and his decision to show the film. As a result, the Council took the decision to dismiss Mr Grosset.

Mr Grosset brought claims in the Employment Tribunal against the Council, including the allegation that his dismissal amounted to discrimination arising from his disability.

Medical evidence produced during the course of proceedings suggested that there may be a medical link between Mr Grosset’s behaviour and his disability. On that basis, the Employment Tribunal and the EAT found that the dismissal amounted to discrimination arising from disability. By contrast with the law on reasonable adjustments, it was held that discrimination of this nature only requires that the employer knows of the employee’s disability – it is not necessary for the employer to have knowledge of the specific consequences of the disability. Therefore, although it was reasonable for the Council to determine that the misconduct was not connected to Mr Grosset’s disability given the evidence it had at the time, the later evidence can still be relied on to show that the dismissal was discriminatory and was not objectively justified.

This is a rather scary case for employers, as the Council’s decision to dismiss Mr Grosset on the basis of the information it had at the time seems reasonable at first glance (and indeed, Mr Grosset’s unfair dismissal claim failed on that basis). The Council is seeking permission to appeal to the Court of Appeal; in the meantime, the best thing for employers to do in such a situation is to seek independent medical evidence before making a decision as to a disciplinary sanction.

City of York Council v Grosset UKEAT/00151/16

Dorchester Hotel has ‘grooming list’ for female staff

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Dorchester Hotel has ‘grooming list’ for female staff

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The Dorchester Hotel gives its female staff a ‘grooming list’ to ensure that they meet certain standards of appearance whilst at work.

According to the list, female staff cannot come to work with oily skin, bitten nails, bad breath or body odour. It requires women to shave their legs, even if wearing tights, and recommends regular manicures and a full face of makeup.

Sam Smethers, CEO of the Fawcett Society, called the policy ‘unacceptable’, stating that: “Employers should concentrate on what enables people to do a good job and what drives productivity. This is 2016, not 1970; we need to see an end to this kind of objectification of women”.

Besides this, there are arguments that any such policy may be discriminatory. If a grooming policy is applied only to women (which the Dorchester denies), it could arguably be directly discriminatory on grounds of sex. Even if a policy is applied across the board, it could be indirectly discriminatory if it puts women at a particular disadvantage. One imagines that any such policy would theoretically seek to enforce different but similarly stringent levels of conformity, but that in practice this would mean that requirements to shave legs, wear makeup and get manicures will only apply to women and the equivalent rules for men are likely to be less intrusive.

In addition, some medical conditions can have physical effects such as excess hair growth, body odour or oily skin. If such a condition amounts to a disability, the Dorchester could be discriminating against an employee on those grounds if it punishes them for violation of the grooming policy.

Discrimination and sickness absence policies

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Discrimination and sickness absence policies

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In order to defend the use of a sickness absence policy in a claim for discrimination arising from disability, the employer must be go beyond justifying having a policy and its terms in a generic sense and be able to justify the specific application of the policy in a particular case.

Mr Buchanan was a police officer suffering with post-traumatic stress disorder, which constituted a disability. The police force managed his long-term sickness absence under the statutory ‘Unsatisfactory Performance Procedure’. The policy had a three-stage procedure for managing absence and included the issuing of ‘improvement notices’. As Mr Buchanan’s PTSD was ongoing, he was unable to meet the return-to-work dates set in the improvement notices given to him. He complained that the way in which the policy was being applied amounted to discrimination arising from disability.

The Employment Appeal Tribunal held that the police force had to justify not simply the existence of the policy itself, but also the way in which it applied the policy to Mr Buchanan. Were it that only the policy itself needed to be justified, discrimination arising from disability claims relating to sickness absence would be much harder to win; employers generally have legitimate interests in implementing absence management policies. Rather, there were several points in which Mr Buchanan’s superiors had to make decisions as to how the policy would apply to him. It was those decisions which required scrutiny.

This decision is a helpful reminder for employers facing problems with sickness absence. One cannot simply rely on the existence of an attendance management policy and apply it in a mechanical fashion to justify actions taken against someone on sick leave. Instead, an employer should, at each stage, be thinking about whether particular decisions taken can be objectively justified. Whether this is the case will depend on several factors, such as whether the standard timeline set by the policy can be fairly adhered to in the light of the employee’s disability.

Buchanan v The Commissioner of Police of the Metropolis UKEAT/0112/16/RN

EasyJet roster was discriminatory towards breastfeeding mothers

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EasyJet roster was discriminatory towards breastfeeding mothers

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EasyJet’s roster system, which could require cabin crew to work shifts of over 8 hours, was indirectly discriminatory on grounds of sex. This was because it put breastfeeding women at a particular disadvantage without justification.

The two claimants were crew members for easyJet and were breastfeeding after returning from maternity leave. EasyJet’s roster system contained a provision whereby staff could be asked to work for longer than 8 hours continuously. The claimants made flexible working requests; they asked not to work shifts of longer than 8 hours in order to manage the time between opportunities to express milk.

EasyJet refused the requests, pointing to the need for it to manage its flying schedule and avoid flight delays. In response, the claimants went to their GPs and were given fitness to work certificates confirming an increased risk of mastitis if they could not express milk. The certificates recommended that the claimants should not work shifts of over 8 hours.

The claimants seemingly took periods of sickness absence and unpaid leave before they were moved to temporary ground duties. They brought claims of indirect sex discrimination against the airline.

The Employment Tribunal held that the claimants had been indirectly discriminated against on grounds of their sex. The provision whereby crew members could be required to work shifts of longer than 8 hours put women at a particular disadvantage, such that the claimants would either have to work the roster and be unable to express milk or lose out financially by missing shifts.

The tribunal noted that easyJet could not point to any examples where the airline had suffered difficulties from giving a crew member a bespoke roster. Additionally, the claimants did have medical evidence supporting the risks to their health posed by the longer shifts.

As a result, it ordered that the claimants be compensated for their lost wages and given £8,750 and £12,500 respectively for injury to feelings. The tribunal recommended that EasyJet write off any periods of absence and credit back any annual leave the claimants took in that period.

This is a reminder to employers that their obligations to employees who are mothers do not end when they return from maternity leave. More generally, it reinforces that employers arguing that a disadvantageous measure is justified will need to have some degree of evidence to support their positions.

McFarlane and another v EasyJet Airline Company Ltd ET/1401496/15 & ET/3401933/15

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

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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“Overqualified” or too old for the job?

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“Overqualified” or too old for the job?

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It’s common knowledge that some employers try to recruit in their own image (whether lawful or not). Job advertisements and person specifications can be used to pinpoint particular demographics, and in particular, certain age groups. Advertising for a candidate who is active, energetic and computer-savvy? Chances are, you’re looking to hire someone young.

An employer’s decision to say in clear terms that they want someone with “youthful enthusiasm” (McCoy v James McGregor & Sons Limited 00237/07IT) or a “younger, entrepreneurial profile” (Beck v Canadian Imperial Bank of Commerce ET/2328832/08) will at the least raise a presumption that the employer has directly discriminated on the basis of age.

A less obvious way in which age discrimination can creep into recruitment is via the imposition of experience requirements. Asking for someone with at least 10 years’ experience will probably exclude candidates in their 20s. Equally, saying that candidates should have 5 years’ experience or less will make it more difficult for older candidates to comply. Such requirements are likely to be indirectly discriminatory on age grounds unless they are objectively justified.

An example of a non-discriminatory experience requirement can be found in Jones Care UK Clinical Services Ltd ET/3302973/2015. Mr Jones (who was 51) had applied for the role of marketing services executive, which reported into the marketing services manager. The person specification asked for at least 2 years’ experience and a relevant degree. The company decided that Mr Jones would not be the best candidate and offered the job to someone else (who was aged 29). Mr Jones claimed he had been discriminated against on grounds of his age. The company denied this, stating that his age played no part in the selection process and that his responses in interview suggested that his skills were beyond what was needed. His expectations were also higher than the constraints of the role could permit.

The employment tribunal dismissed the claim, finding that Mr Jones’ “previous senior roles, high-level qualifications and extensive experience might unbalance the marketing team and undermine other team members whose qualifications and experience were of a much lesser order”. It also found that there was a risk of Mr Jones becoming frustrated in the role, particularly given the lack of scope for career progression.

On the other hand, in Rainbow v Milton Keynes Council 1200104/2007, a role which specified that it “would suit candidates in the first five years of their career” was discriminatory. The tribunal had no problem finding that the requirement put older applicants at a particular disadvantage, given that applicants in their 60s (Ms Rainbow included) were more likely to have lots of experience. The employer’s reason for wanting someone younger – which was that they were cheaper to employ – was not sufficient justification.

Essentially, the safer course for employers is to only ask for what you need from a candidate. Where a quality (or particular level of experience) is necessary and relevant to whether a candidate can do the job properly, you are entitled to ask for it. However, if you find yourself writing the words like “younger”, “older” or “youthful” in your job advertisement, the best advice will always be… don’t.

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

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)