News & Updates

Employment Law March Briefing

In this edition of our monthly employment law e-briefing we cover

  • Uniforms Policy
  • Recruitment
  • Redundancy
  • Expired disciplinary warnings
  • Sexual orientation discrimination

 


Uniforms Policy
Can an employer dictate whether and the extent to which jewellery may be worn in the work place?  What if the adornment is a cross and the employee is a devout practising Christian? Can an employer prohibit this or is it discriminatory?

A member of British Airways check-in staff who was suspended without pay when she refused to cover up a necklace bearing a cross has lost her tribunal claim that she suffered religious discrimination.  At the time BA operated a policy prohibiting customer facing staff from wearing any visible item of adornment unless it was a mandatory religious requirement.  The Tribunal found that BA would have treated anyone of a non Christian faith or of no faith identically.

 

The Tribunal also rejected her claim of harassment on the basis that her treatment was not on the grounds of religion or belief and that she had agreed to the contractual uniform policy.

 

It is worth noting however that a storm of negative media attention led BA to amend its policy to permit staff to display a faith or charity symbol. 

 

How Not to Recruit
From Northern Ireland's Industrial Tribunals comes the (not unsurprising) news that it is discrimination on the grounds of age to advertise for an employee with "youthful enthusiasm" and at interview, on noting that the applicant is 58, to ask: "How can you convince me that you still have the drive and motivation to be successful in this position?  Are you still hungry enough to succeed?"

Neither of the two successful applicants (aged 42 and 43) had been asked whether they still had the drive and motivation for the role.

 

Redundancy Dismissals
Redundancy is a potentially fair ground for dismissal.  To be fair, the employer must have adopted a fair procedure, that is: as much advanced notice as possible; proper consultation; fair and objective selection criteria and an offer of suitable alternative employment (if available).  A recent decision of the Employment Appeals Tribunal places an additional burden on employers.  An employer should not open up the possibility of applying for a new post to the entire work force (and, it follows, externally) until it has established that none of the people at risk of redundancy are suitable for the post.

 

Expired Disciplinary Warnings
Can these ever be taken into account?  The ACAS Code of Practice states that a warning should be disregarded for disciplinary purposes after a specified period.  In a recent case the Court was asked to decide whether the employer, when considering dismissal of an employee for misconduct, must, for all purposes and in all circumstances, ignore an employee's previous misconduct because a final written warning received for it has expired.  The Court decided that there was no absolute rule that taking account of an expired warning is invariably unfair.  However, employers and employees typically do act on the basis that the slate should be wiped clean once a warning has expired and a Tribunal or Court is likely to view reliance on an expired warning as fair only in exceptional circumstances.

 

Sexual Orientation Harassment
The 2003 Sexual Orientation Regulations prohibit harassment of:

  • a person who is homosexual
  • a person who is perceived by his harassers as homosexual or
  • a person who is harassed because of his failure to follow instructions to discriminate against another

 

The facts in this case were somewhat novel as the employee was not homosexual or perceived by his harassers as homosexual, rather he was subject to homophobic banter because he had attended a boarding school and had lived in Brighton.

 

Although the Tribunal decided that the regulations did not prohibit this type of harassment that may well be because the Regulations do not give full and proper effect to the European parent Directive.  Accordingly the poor victim in this case has been given leave to appeal.

 

"Bigot of the Year" award declared
Last year the Bishop of Hereford was named Bigot of the Year by gay equality organisation Stonewall. In a Welsh Employment Tribunal case, an applicant for the post of Church youth officer disclosed at interview that he was homosexual and had been in a same sex relationship that had recently ended and that he did not intend to enter into a new relationship.  He was unanimously selected as the best candidate for the post, subject to the Bishop's approval.  During interview with the Bishop he was questioned at length about his previous gay relationship during which the applicant assured the Bishop that he would remain celibate.  He was subsequently rejected for the post.  The Employment Tribunal found that the Church had discriminated against the applicant on the ground of his sexual orientation.  The case was listed for a remedy hearing which took place in February.  Now we can report on the cost of asking the wrong questions at interview: in this case £47,000!

 

Don't believe everything you read!
Did anyone read the Edinburgh Evening News article on 8 February regarding Edinburgh City Council's bid to award male cleaners, home helps and catering staff a fairer pay deal? If so beware - the report stated: "workers have been denied extra payments offered to their female colleagues because sex discrimination laws do not apply to men". This statement is just plain wrong!  Discrimination laws apply equally to men and women.

 

For advice or further information please contact our employment team:
Karen Harvie     (kjh@tcyoung.co.uk)
Amanda Macfarlane    (avm@tcyoung.co.uk)

 

 

This e-briefing is intended as a guide and does not provide a comprehensive statement of the law.  Legal advice should be sought on individual circumstances.