I'm a solicitor and the chief operating officer at Canter Levin & Berg. I was formerly head of the employment department. I maintain this website so if you have any suggestions, criticisms or recommendations please email me at martinmalone@canter-law.co.uk. Outside work my interests include national hunt horse racing, France and French wine and current affairs. I also design and maintain websites.

Dismissal for beard that was “too long” and “too religious” upheld

Back in December 2015 I commented on the decision of the European Court of Human Rights in Ebrahimian v France, which concerned the termination of employment of a health worker at a hospital who refused (on religious grounds) to remove her headscarf when she was on duty at work. By way of a brief recap, state secularism (or laïcité) is a strongly protected principle in French society. That is why you will not hear hymns or carols sung in French schools and there was a big fuss last month when a village commune tried to place a nativity scene in the square in front of the local mairie. It was determined that Ms Ebrahimian, by wearing a symbol of religious affiliation, was breaching her duties as a public official. In its judgment the court held that the non-renewal of her employment contract did amount to an interference with her right to manifest her religion, contrary to Article 9 of the European Convention on Human Rights. However, that interference had the legitimate aim of protecting the rights and freedoms of others, pursuant to French law. Accordingly, her claim failed.

A similar case has now surfaced in the Versailles administrative Court of Appeal. A trainee doctor of Egyptian origin was dismissed from his job at Saint-Denis hospital centre in Seine-Saint-Denis because his “imposing” beard constituted an “ostentatious display of religious belief”. The individual concerned declined to deny or confirm that his appearance was intended to be a way to “demonstrate his religious activity”.  On 19 December, the Court of Appeal supported the decision, noting that although the wearing of a beard “even long”, cannot “on its own” cannot (necessarily) constitute a sign of religious affiliation, the “circumstances” entitled the hospital to at as it did.

Important ECJ decision opens up the possibility of valuable retrospective holiday claims

I have written in this blog on many occasions about the importance of getting it right if you are going to treat all or part of your workforce as self-employed, rather than as fully fledged workers or employees. As you may recall, the Pimlico Plumbers case earlier this year ruled in favour of the claimants, finding that they were workers rather than being “fully” self-employed and therefore entitled to holiday pay and other benefits. The issue has been a hot topic throughout 2017 with the Uber and Addison Lee cases for example showing a willingness on the part of the courts to find that there was an employment relationship where, previously, there was assumed not to be.

But what basis should be applied for calculating losses if an entitlement to retrospective holiday pay or other benefits is established. The normal cut off point for calculations is six years, since this is the time limit for claims based on breach of contract. However, the entitlement to paid holidays arises under the EU Working Time Directive and this has a statutory footing.

This issue was recently considered by the Court of Justice of the European Union (CJEU/ECJ) and judgment was delivered in the case of King v The Sash Window Workshop Limited and Dollar on 29 November. Mr King had started working for Sash Window Workshop (“the Company”) in June 1999 on a “self-employed commission only contract”. He continued to work for the Company until his retirement in 2012. He took numerous holidays during the 13 years that he worked for the Company, but was not paid for them. Following his retirement he asked to be paid all his holiday pay for the entire period of his engagement. Unsurprisingly, the Company refused.

Mr King took his claim to an employment tribunal which held that there were in effect three types of holiday claims: (i) holiday pay for 2012-13 accrued but untaken when he left, (ii) holiday pay for leave actually taken but in respect of which no payment was made and (iii) pay in lieu covering accrued but untaken leave (amounting to a further 24.15 weeks). The tribunal found that Mr King was a worker (within the meaning of the statutory definition – see the Pimlico case) and therefore ruled in his favour in respect of all three.

The Company appealed to the Employment Appeal Tribunal.

The end of “fit to work” notes and referrals

Back in March 2010 I reported about the proposed introduction of fit notes, noting that the Government expected savings to the economy of £240 million over 10 years, by aiding the recovery to work of sick workers. Well, it didn’t turn out that way. By July 2010 there were teething problems. Bogus fit notes were widely available on the internet and offered for £9.99 with an introductory “buy one get one free” offer. A further and entirely predictable problem was that employers receiving the fit notes were unable to decipher GPs’ illegible handwriting and therefore overlooked key elements of the process such as, for example, arranging a structured return to work.

In 2015 the Engineering Employers Federation (EEF) reported that the scheme wasn’t working. By September 2014 only 5000 GPs from a pool of 40,854 had received training and 43% of employers said that the fit note had not helped employees to return to work. The EEF’s head of health and safety noted that the quality of advice being given by GPs to help people back to work was deteriorating and that, in order to work, the scheme needed greater resources.

Late in November 2017 it was quietly announced that the scheme is to be scrapped.

A bitter feud played out in the High Court

Embed from Getty ImagesOver the last few weeks the High Court has heard some astonishing evidence in the bitter wrongful dismissal claim brought by the former CEO of Signia, a wealth management company, as reported in The Independent.

High profile entrepreneur John Caudwell has frequently made the news over the last couple of decades. The founder of mobile phones retailer Phones 4U has presented himself as a forthright, no-nonsense style of businessman. According to the website Caudwell.com (owned, registered and administered by one John D Caudwell and which is currently “down for maintenance”) he is a “successful entrepreneur and philanthropist” who “built an immensely successful mobile telecoms company”.

Signia is a wealth management company that was jointly founded by Nathalie Dauriac and six of her Coutts Bank colleagues in 2010. Another co-founder was Mr Caudwell. The business focuses on high end wealth management. All appeared to be well until details emerged of an extraordinary dispute between Ms Dauriac and Mr Caudwell, ostensibly in connection with expenses claims amounting to some £33,000. Ms Dauriac claimed that the expenses investigation was unfair and was, in effect, trumped up to deprive her of her £12 million 49% stake in the business, which was bought out for a nominal £2.00 fee.

Giving evidence in the High Court trial Ms Dauriac says that when they set up the business in 2010, “Mr Caudwell had asked me…as a last minute condition of jointly setting up the business, to give an undertaking to him not to have children, a proposal I did not agree to”.

Ms Dauriac claimed in evidence that Mr Caudwell orchestrated an “elaborate conspiracy” against her, resulting in her claim of constructive dismissal.

For its part, Signia maintained that she wrongfully claimed the expenses, that her approach to them was “brazen” and that she was “guilty of gross misconduct”.

In his evidence, Mr Caudwell said that the breakdown of his business relationship with Ms Dauriac, who he considered to be a “best friend” was like suffering a “bereavement”:

The end of employment tribunal fees

In a surprise judgment handed down on 26 July the Supreme Court unanimously decided that charging claimants to bring employment tribunal claims was unlawful and the fees scheme (introduced in 2013) was quashed. The Government promptly acknowledged that it accepted the judgment and wasted no time in confirming that the fees have been scrapped. The Law Society Gazette described the judgment as a humiliation for the Government.

Commentators have described the judgment as being constitutionally significant, since it addresses the question of what is meant by “access to justice”. As such its ramifications could extend well beyond the relatively narrow issue of employment tribunal fees. In his lead judgment (which distinguished legal commentator Joshua Rozenberg described as “terrific”) Lord Reed began by recognising that relationships between employers and employees are “generally characterised by an imbalance of economic power”. He noted that tribunals “are designed to deal with issues which are often of modest financial value, or of no financial value at all, but are nonetheless of social importance”.

In 2011, the Government proposed the introduction of fees on the basis that (1) this would transfer some of the cost of the system from the general taxpayer to its users, (2) it could encourage early settlements and (3) that it would help to weed out weak and vexatious claims.

What happened following their introduction was “a dramatic and persistent fall in the number of claims brought in ETs…of the order of 66-70%”.

Lord Reed first considered whether the fees order was unlawful under English law. At paragraphs 66 to 85 of the judgment, headed “The constitutional right of access to the courts” he sets out a compelling analysis of what is meant by the rule of law and how it is inextricably linked with access to justice. He is concerned that these concepts may have become lost in favour of an ideological view that “…the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings”. His response is firm and clear:

Providing information about sickness absence in a reference ruled as discriminatory

Mr Paul Mefful began working as a volunteer at Southwark CAB in 2000. In 2003 he was employed as a general adviser and in 2004 he was promoted to senior adviser at Merton and Lambeth CAB following a competitive selection process. In May 2004 he became a specialist services manager. In (what was then) a Legal Services Commission audit report in 2006 the LSC contract with the CAB, for which Mr Mefful was responsible, was found to be “outstanding in quality and performance”.

He was absent from work from November 2009 to January 2010 due to grief and a stress reaction after he and his partner lost a baby. In 2012 he suffered severe and constant shoulder pain as well as total hearing loss in one ear, tinnitus and vertigo. An employment tribunal determined that these conditions meant that he was suffering from a disability within the meaning set out in the Equality Act 2010. He took 63 days off work between April and July 2012. In August of the same year he was made redundant.

Mr Mefful brought claims of unfair dismissal (upheld) and disability discrimination (continuing) but the judgment I am reporting here concerns separate proceedings relating to the provision of a reference by the CAB to a prospective employer. At the time the CAB had guidance concerning the provision of a reference which included the following:
“Any reference provided by the Bureau for an employee should be well researched and avoid unfounded opinions. If negative, it should not refer to matters not previously raised directly with the employee. If asked to speculate on suitability, it should be cautious and where necessary use a disclaimer. It should aim to offer a balanced view without being too glowing or too damning unless wholly merited.”
In May 2015 Mr Mefful applied for the post of Welfare Benefits Advisor at One Housing Group Limited. He was interviewed on 3 June and offered the post on 4 June, subject to a satisfactory reference. He was contacted by One Housing on 12 June because they wanted him to commence employment as soon as possible. At the time Mr Mefful was engaged in his separate employment tribunal claim and it turned out that the provision of the reference had been stalled because, in the words of Ms Harris, a former Chair of Trustees and a member of the strategy group, in an email sent to a colleague on 26 June, she described the reference application as being “very problematic”. She noted that “…the way that he has conducted himself in the [unfair dismissal and disability discrimination] litigation has been totally dishonest”.

Although denied by each of them when giving evidence, the tribunal found that Ms Harris and Ms James, CEO of the CAB, had consulted in detail about the reference. It was eventually completed by Ms James on 29 June. Sickness absences had been filled out in the form. In answer to a question about whether the CAB would re-employ Mr Mefful, the answer given was “no”.

Unfair dismissal resulting from demotion to do “officey things”

Zena Dickenson worked for 21 years at Easington Lane Primary School. From 2009 she was employed as the School Business Manager. She was responsible for a £1.2 million budget and she had 15 employees reporting directly to her.

In 2015 it became apparent that there would be an overspend and reduced income for reasons including shortfalls in the ‘pupil premium’ income and income from ‘early years’. She was approached by a clerk/receptionist, Kellie Todd, who wanted to know what her prospects were. Mrs Dickenson said that she could not be guaranteed additional hours in the future and there was a possibility that there would be redundancies. Ms Todd reported to a senior teacher, Hannah Wardle, that she was upset as a result of the conversation with Mrs Dickenson. Hannah Wardle in turn reported the matter to head teacher, Sarah Nordstrom, who commenced an investigation. The school’s HR adviser, Paula Barclay, interviewed Hannah Wardle, Kellie Todd and others and prepared draft witness statements for them. She advised Sarah Nordstrom as follows:
“I would start with

“There are some rumours in the school that there is going to be redundancies next year – what you know about this? and let her speak.

“If her response is she doesn’t know anything about it probe a little by asking if she denies having any conversations with colleagues about redundancy, reducing hours etc.

“Then ask her how this risk has not been brought to your attention and why it has not been reported on in the recent Finance meetings.

“If you believe the explanation about the budget stacks up you may choose not to suspend her. However, I think we both agree that she has stepped outside of her remit as Business Manager and SMT in divulging this information to colleagues. Therefore you can tell her you have concerns about this and an investigation will take place but you could do this with her still at work. However, unless she comes up with some plausible explanation which eliminate your concerns about funds the prudent approach would be to suspend her to allow a full and fair investigation to take place.

“Explain to her that this is not disciplinary action and that she will be paid while she is off. She will receive a letter confirming the position and she should not speak to anyone about this.”
Mrs Dickenson was duly suspended on 9 December 2015 to investigate allegations that she had a discussion with a colleague about the risk of redundancies when this had not been discussed by the senior leadership team and that, despite having the discussion she had not raised financial concerns with the senior leadership team. After a couple of false starts a disciplinary hearing took place on 26 February 2016. It was agreed that her suspension would be lifted. On attending work the following Monday she found that her security pass had been disabled. She was told not to go into the office but to wait in reception. The head teacher informed her that a performance improvement plan was to be put in place. She would no longer have any line management responsibilities and she would have to work in the main office at reception updating the school’s database until the plan was put in place.

Mrs Dickenson became distressed and said that she would like to be considered for redundancy. She was taken home and remained off sick until she resigned.

In the meantime Paula Barclay sent her two letters, one asking her to attend a formal absence review meeting and the other asking her to attend a protected conversation meeting. Mrs Dickenson did not attend the meetings. However there were negotiations via her union rep which led to a proposed termination date and settlement figure. After obtaining legal advice a revised offer was made on her behalf which the employer was not prepared to meet.

On 26 April she wrote and submitted a letter of resignation, providing the requisite three months’ notice. She set out various grounds on which she considered that both she and her position had been undermined. In particular she noted that Mr Trotter, the deputy head and occasional acting head, had effectively demoted her to the position of receptionist and that she had been told by him to do “officey things”.

Is requesting a holiday from July to September manifestation of a religious belief that is capable of protection?

Where do you draw the line with protection of workers on the grounds of religious or philosophical belief? It is a question that I have been addressing in this blog ever since protection from discrimination on these grounds was first introduced. It is logical that there is a limit. For example, if a person’s belief is used as justification for discriminating against others, there can be no case for allowing the alleged victim of discrimination him or herself to engage in discriminatory acts. Another question is whether and if so at what point the manifestation of a religious belief tips over the edge between a “reasonable” accommodation and one which, perhaps for a number of reasons, “just goes too far”. That leads us to the remarkable case of Mr Gareddu, a practising Roman Catholic of Sardinian origin.

Gareddu v London Underground Limited concerned Mr Gareddu’s requests for summer holidays running from 27 July to 2 September (five consecutive weeks). He joined London Underground in 1990 and was entitled to 38 days’ holiday per year (including Bank Holidays). From 2009 to 2013 he took five weeks’ consecutive summer holiday to travel to Sardinia with his two brothers to visit his mother and attend a number of religious festivals, up to 17 per visit. He said that he would attend the festivals for those saints with whom he felt a particular affinity.

In March 2013 a new line manager, Mr Cross, took over. He refused the request for five weeks’ holiday and said that, in future, he would be unlikely to be granted more than 15 continuous days during the summer holiday period. As it happened the 2014 trip was pre-booked and allowed but a holiday request from 27 July to 2 September 2015 was refused. Mr Gareddu contended that this amounted to indirect religious discrimination, contrary to section 19 of the Equality Act 2010.

At a tribunal in December 2015 Mr Gareddu’s claim failed on the basis that the “asserted religious belief requiring attendance at a series of religious festivals during the period 27 July to 2 September” was not made in good faith. While attending religious festivals was a manifestation of religious belief, being required to do so within a specific five-week period was not in itself a specific manifestation capable of protection under the Act.

Mr Gareddu appealed to the Employment Appeal Tribunal on four grounds:

The tribunal took the wrong approach by failing to make findings as to the provision, criterion or practice (PCP) in issue, whether the employer applied that PCP to people with whom Mr Gareddu did not share the characteristic of being a Sardinian Catholic, whether participating at numerous religious festivals was a typical manifestation of the religious beliefs of Sardinian Catholics, whether Mr Gareddu was put at a disadvantage as a result of the PCP and, if so, whether the disadvantage was justified as a proportionate means of achieving a legitimate aim.
The tribunal imposed an unwarranted additional requirement that religion should be the sole or primary motivation for the manifestation in order to benefit from protection under section 19.
It considered an irrelevant factor – the desire to worship collectively with his family – when considering whether he had acted in good faith.
It adopted a perverse construction of Mr Gareddu’s evidence by finding that he had claimed to attend the same 17 events annually and, flowing from this, that he had changed his evidence in the course of the hearing.

Communicating notice of termination of employment – when does the notice period start?

In many situations the date on which someone receives notice of termination of employment and the corresponding date on which termination takes effect are neither here nor there. In other cases they can be critically important. One such case was recently considered by the Court of Appeal in Newcastle Upon Tyne NHS Foundation v Sandi Haywood.

Mrs Haywood was employed as an associate director of business development at Newcastle PCT from November 2008 to April 2011. She was on a salary of £84,446 p.a. and her contract provided for a minimum notice period either way of 12 weeks. Following a merger in April 2011 her contract was transferred to Newcastle Upon Tyne NHS Foundation. She was advised that she was at risk of being made redundant and a discussion meeting took place on 13 April 2011. It was confirmed at the meeting that no decision had been made about redundancy, alternative posts were considered and she was informed that she would be entitled to an NHS pension of about £200,000 if she was made redundant after 20 July 2011. She accepted that her post was redundant.

Mrs Haywood commenced sick leave immediately, brought on by the stress of the meeting. She commenced annual leave on 18 April and was on holiday in Egypt from 19 to 27 April. She remained on sick leave until 20 May 2011.

Her redundancy was confirmed. However, the key question left to be answered was whether she received her 12 weeks’ notice of dismissal before her 50th birthday on 20 July since that would have a significant effect on her pension entitlement. The employer maintained that notice was given that would expire before her birthday but she did not read the letter until her return on 27 April, so that if notice was calculated from that date it would expire after her birthday.

Notice was provided in a recorded delivery letter which was collected from the sorting office by her father in law on 26 April. There was also an email to Mrs Haywood’s husband’s email account , which was sent on 20 April at 10:55. A letter was also sent by normal post but this was disregarded as an effective method of communication. All the communications provided 12 weeks’ notice purportedly terminating on 15 July 2011. Mrs Haywood was also placed on garden leave. For the notice period to include her 50th birthday the notice would need to have been served by 26 April 2011. Mrs Haywood said that she opened the recorded delivery letter at 08:30 on 27 April and Mr Haywood did not read the email until 10:14 on the same day.

Sitting in the High Court in Leeds Judge Raeside QC decided that she was only given notice when she read the letter so that she remained employed up to and including her 50th birthday. She was therefore entitled to the better pension terms. The employer appealed and the matter was heard by the Court of Appeal in mid-February 2017 with judgment handed down on 17 March.

Sickness absence at an all time low

The Office for National Statistics has published its annual report on sickness absence covering 2016, revealing that absence was the lowest recorded since records began in 1993. There were an estimated 137.3 million working days lost, equivalent to 4.3 days per worker.

The most common reasons for absence were coughs and colds (accounting for 34 million days / 24.8%), followed by musculoskeletal problems including back pain, neck and upper limb problems (30.8 million days / 22.4%). After “other conditions” the next distinct category was mental health issues, including stress, depression and anxiety, which accounted for 15.8 million days / 11.5%.

The statistics reveal that there has been a steady reduction in the overall number of sickness absences over a number of years.

The demographic breakdown highlights higher rates of sickness absence for women (2.5%  versus 1.6% for men). Older workers (2.9% for over 65s) are, unsurprisingly, more likely to be absent than younger ones (1.5% for ages 16 to 34). In  this context it is notable that the employment rate of those aged over 65 has more than doubled since 1993 and at October to December 2016 stood at 10.4% of the workforce (1.2 million people). While this trend indicates a need for employers to deal with more sickness absences, assuming that this trend continues in coming years, it is perhaps surprisingly counteracted by a reduction in the rate for 50 to 64 year olds from 4.4% to 2.7%.

The statistics revealed a 2.5% absence rate for smokers by comparison with 2.3% for ex-smokers and 1.6% for those who have never smoked.

The regional breakdown reveals that the highest sickness absence rates are in Wales and Scotland, followed by North East and North West England, while the lowest rates are in London and the South East. The research explains that this is because of the younger age profile, combined with a concentration of high-skilled jobs (which tend to have lower absence rates).