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WMELG Networking Breakfast 30.06.17

Join us for a Networking Breakfast followed by a talk from ACAS, and an Employment Workshop delivered by No5 Barristers’ Chambers.

Presented by experts in the field of Employment this interactive forum is a fantastic opportunity to learn, share ideas and network.

PROGRAMME – download flyer here

08.30 – 09.00 Networking Breakfast
Enjoy breakfast whilst networking with fellow WMELG members.

09.00 – 09.30 Age Management Post-Brexit
Malcolm Boswell – ACAS
Talk addressing the need for a mature approach to age management in the workplace post Brexit.

09.30 – 10.30 Employment Workshop
Helen Barney & Anthony Korn – No5 Barristers’ Chambers
Practical workshop tackling issues of service provision change and changes to employees’ terms and conditions of employment post transfer.

HOW TO BOOK

Please click here to book.

COST

This event is free of charge.


For further information about this or any other WMELG event, please contact the wmelg@no5.com  or visit https://wmelg.wordpress.com/

Networking Breakfast 30th June

Redundant NHS Executive Wins Right to Higher Rate Pension

Written by Jade Linton, Sydney Mitchell

Being made redundant can be a painful experience but, with expert legal advice, you can at least ensure that you leave with everything you are entitled to. In one case, a senior NHS executive who was just short of her 50th birthday when her employer decided to make her redundant had her pension rights upheld by the Court of Appeal.

Following a stressful meeting, the woman had gone on sick leave. Soon afterwards, however, she took annual leave and went on holiday to Egypt for a week. She came home to find a letter informing her of her redundancy. She was entitled to a 12-week notice period prior to termination of her employment.

In those circumstances, novel issues arose as to the exact date on which she had been served with notice of her dismissal and whether her notice period expired just before, or just after, her 50th birthday. A judge accepted that her redundancy took effect after she turned 50, thus entitling her to a higher rate of pension.

Her former employer, an NHS trust, challenged that ruling on the basis that she was deemed to have been served notice on the day of the letter’s delivery, rather than the day on which she opened it. In rejecting the appeal by a majority, however, the Court noted that the trust was aware that she was due to go on holiday and that there was a substantial risk that she would not be at home when the letter arrived. In the circumstances, the notice period only began to run when she took delivery of the letter and its contents were actually communicated to her.

Anthony Korn contributes to latest edition of Blackstone Employment Law Practice

The latest edition of Blackstone Employment Law Practice has recently been published by Oxford University Press.

Blackstone Employment Law Practice (2017) is the leading text on tribunal practic for bringing, defending and appealing employment cases in one single, portable volume.

Anthony Korn contributes two chapters to the book: one relating to unfair dismissal compensation and the other relating compensation in discrimination claims.

Anthony Korn is a member of the Employment Law Group at No5

Worker or Employee? Tribunal Ponders Charity Worker’s Case

Written by Jade Linton, Sydney Mitchell

The dividing line between ‘workers’ and ‘employees’ can be very difficult to discern, but is of the greatest significance. That was certainly so in the case of one man who worked for a charity for years without any form of written contract.
The man, who started out as a paid intern on a trial basis, received about £1,000 a month for performing a wide range of tasks, many of them concerned with assisting the charity’s founder in dealing with personal matters. Neither he nor the charity made any account for Income Tax or National Insurance Contributions.
Following his acrimonious departure, he lodged complaints with an Employment Tribunal (ET), which accepted that he was a worker but found that he was not an employee within the meaning of the Employment Rights Act 1996.
The ET found that the absence of a written contract or provision for holiday pay, and the fact that he was generally only remunerated when he worked, were inconsistent with employment status. As a result of that ruling, his whistleblowing and unfair dismissal claims were struck out.
In upholding his challenge to those aspects of the decision that were adverse to him, the Employment Appeal Tribunal found that the ET had erred in law. Those factors that were said to be inconsistent with employment status were in truth no more than pointers in that direction. The ET had also made an apparent factual mistake in respect of his receipt of holiday pay. The case was sent back to the same ET for fresh consideration.

We Need Your Help

Following a successful launch event on the 17th March the West Midlands Employment Law Group need your help!

The aim of the group is to be a member led organisation where you can share ideas, network and receive beneficial training.

In order to achieve this vision and for the group to be a success WE NEED YOUR HELP!

How can you can get involved:

  • Committee Group – We are looking for a small group of people who are able to help with providing ideas for future events, training and WMELG activities and help to bring these ideas to life.
  • Article Submissions – We would like you to submit relevant articles about Employment Law, HR issues or updates, legal updates and topical news that we can use on our website. These can be full articles, short blog pieces or topics you think would be good to get comment or feedback on.*
  • Ideas – We welcome any ideas you have for future events, training topics and charities you would like the WMELG to support.
  • Venue – If you would like to offer your place of work as a venue or would like to suggest any venues for future events please do let us know for a future event.

To get involved please follow the links below.
The West Midlands Employment Law Group look forward to working with you all.

HeadScarfs and Turbans: Are you protected?

16.03.17

The  Metro Newspaper dated 15th March 2017  headlined on its front page that Employers could ban Headscarfs. This was a reference to the decision of the European court of Justice where two Headscarf wearing Muslim women challenged their Employers code of conduct, which prohibited the wearing of any visible signs of their political, philosophical or religious beliefs in the workplace (and on engaging in any observance of those beliefs).

Samira Achbita v G4S

On 12 February 2003, Samira Achbita, a Muslim, was employed as a receptionist by G4S (a company that provides customer facing security services to both the private and public sector).  At the time of Ms Achbita’s recruitment there was an unwritten rule (ie not contained in the contract of employment or staff handbook but imposed through Management instructions) within G4S that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace.

In April 2006, Ms Achbita informed her employer that she intended to wear an Islamic headscarf during working hours. In response, she was informed that wearing of the headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to the position of neutrality G4S adopted in its contacts with its customers. Ms Achbita attended work wearing her headscarf.

On 29 May 2006, the G4S  approved an amendment to the workplace code of conduct adopting the unwritten rule. Ms Achbita was then dismissed for continuing to wear her Headscarf despite management instructions. She challenged her dismissal in the Belgium courts, who made a referral to the ECJ.

Asma Bougnaoui v Micropole

Ms Bougnaoui met a representative of Microplole at a student fair where she was offered an internship, which she commenced on the  4 February 2008. At the point, she was wearing a simple bandana. She subsequently wore an Islamic headscarf at work, whilst still interning.  At the end of her internship, Micropole were obviously impressed by her and employed her, from 15 July 2008, as a design engineer under a contract of employment of indefinite duration.

However, despite sometime of working as a design engineer successfully at Micropole, following a complaint from a customer to whom she had been assigned that he did not want the services of a woman wearing a Headscarf,, she was instructed not to wear the Headscarf. When Ms Bougnaoui refused to take off her Headscarf, Micropole dismissed her on the grounds of refusing to follow the instructions of maintaining workplace neutrality. She challenged her dismissal in the French Courts, who in turn made a referral to the ECJ

Niether G4S nor Micropole seem to have considered, alternative non-customer facing roles for either Employee, before making the decision to dismiss.

The ECJ provided the opinion in both cases that there was not workplace discrimination of the employee if the code of conduct or instructions, setting out an aim for workplace ‘neutrality’ applied to all Employees. This is because in order to obtain a finding that you have personally as an Employee been discriminated against by an Employer, you must be able to demonstrate ‘ less favourable’ treatment to other Employees. If all Employees were treated the same i.e  all not allowed to wear anything that showed their faith, then there could not be less favourable treatment because of faith.

However, the ECJ recognised that a claim for indirect discrimination could be brought against an Employer applying a neutral code of conduct or instructions, where it places Muslim Employees at a particular disadvantage. The intention to have a neutral workplace is irrelevant, if it can not be justified to achieving a legitimate aim ie a genuine occupational requirement. The ECJ opined that an Employer could have objective justification, if it were trying to meet the aim of neutrality in its relationship with its Employees.

What does the ECJ decision mean for Head -Coverers in the UK? 

In a much forgotten case of  Mandla v. Dowell-Lee [1983], a sikh boy brought a challenge against a school dress code that was introduced to ‘ minimise external differences between races and social classes’ . In addressing indirect discrimination, the House of Lords decided that it was for the Employer to show that the condition which he seeks to apply is in all circumstances justifiable without having regard to  ‘colour, race, nationality or ethnic or national origins of the person to whom it is applied’ . But in this case the principal justification on which the Employer relied upon was that the Turban was objectionable  because it was a manifestation of  ethnic origins. The House of Lords concluded that this is not, in ther view, a justification which was lawful. Whilst this case was decided under the old Race Relations Act 1976, which did not provide protection for religious discrimination under a separate category, the Equality Act 2010 does. It is this decision that provides protection against Employers in the UK from introducing dress codes with the aim of creating a neutral workplace environment, by prohibiting the manifestation of faith. For instance in a recent case brought by a Sikh Police Constable against Greater Manchester Police, an Employment Tribunal made a finding of indirect discrimination because the PC was instructed not to wear his Turban for riot training. Similarly, another decision Muslim woman who claimed unfair dismissal and religious discrimination against a London store who wished to preserve a trendy image, was forced her to resign for insisting on wearing the Headscarf, under the pretext of being late back from lunch. The Claimant did not succeed in her claim for direct discrimination but did for unfair dismissal. The Tribunal expressed that she claimed for indirect discrimination instead, she would have succeeded.

It is my opinion, that UK law will continue to provide the long standing protection afforded to those who wish to  manifest their faith through covering their heads be they headscarfs, Turbans or indeed skull caps.

Written by Nabila Mallick, Barrister at NO5 Barristers’ Chambers