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.

The Santa Clause: Employment Law issues in Lapland

Penguin Santa You know who’s having a low media presence this year? Santa Claus! I mean, just look at the Christmas adverts this year! Without naming names, the ‘biggest’ Christmas adverts this year involve a monster, a carrot and a toy factory. The only ‘big’ advert that sees the big, red man is one in which Paddington bear mistakes a burglar for Santa!

So, why the low media presence? Where is Santa?

On that front, I may be able to help. You see, Mr Claus is currently having some Employment Law and HR issues with his workforce and has been busy obtaining legal advice on what to do next. It’s a stressful time of year, particularly with less and less people believing in him (there seems to be a rumour going around that he isn’t real) and certain big rival companies in the logistics business setting up in competition (the main one named after a geographical location considerably far away from Lapland).

Put simply, Christmas needs saving and Santa can’t operate without solving his current employment law issues. With this in mind, let’s go on a Christmas journey and help Santa save Christmas!

Can an employee be disciplined for looking for another job?

Job Application Form You’d think this would be a weird question but I actually get asked this question on a fairly regular basis. Thankfully, I mostly get asked it by employees rather than employers but, in saying that, I can recall two employers (at a past law firm) that asked me this exact question.

The answer? Quite simply: it depends. It depends on the circumstances but, theoretically, yes, an employee can be disciplined for job hunting. In practice, however, it would be a rare occasion where an employer could safely do so.

To explore the dividing line, let’s look at three examples.

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”:

Solving the riddle – Uber, Addison Lee, workers, employees and the self-employed

Confusing road sign The media has been awash with stories about ‘worker’ status recently. The most obvious being the recent Employment Tribunal decision that Addison Lee drivers are workers, not self-employed as the private hire taxi firm argued, and the similar decision against Uber a few months ago. The appeal for the Uber case was heard last week in the Employment Appeal Tribunal, albeit the decision will probably be announced in December.

So then, you may conclude, all taxi drivers are workers? No. Okay, so most of them are self-employed? No. Well, they must be full employees then? Not really.

To get into this, we should acknowledge one thing. The definition of “worker” in the Employment Rights Act 1996 is purposefully fuzzy. No, that’s not legal jargon, but an acknowledgement that the status is meant to catch those people who fall between the more obvious categories of employee and self-employed. Stereotypically-speaking, employees are those who work in an office on a rolling contract for a specified number of hours per week and self-employed individuals work for their own business and are ‘their own boss’. Now, in practice, it isn’t that simple, but let’s use those examples as vague signposts for now because, otherwise, I’ll need to name enough qualifications and exceptions to fill an employment textbook chapter!

So, ‘worker’ status is designed for those who aren’t ‘full’ employees or self-employed. But where is the line? Where does a ‘worker’ merge into an employee and when does a ‘worker’ get so far as to be effectively self-employed?

These are very good questions. In fact, they are such good questions that a lot of employers, including Uber, Addison Lee and Deliveroo, end up finding out at Employment Tribunal precisely because it is hard to specify otherwise.

Handling Honeymoons

Moose sign Full disclaimer: I’m off on honeymoon soon. I plan to spend 3 weeks driving around Canada and, in my head at least, spotting many moose and bears and eating my body weight in maple syrup and pancakes! But, fear not Canter Levin & Berg, this article isn’t published as a hint to you but, rather, because I get a lot of questions from employees and employers alike about ‘honeymoon etiquette’!

Now, honeymoons are a curious beast. Firstly, because it tends to be one of the few occasions where an employee is allowed more than two consecutive weeks of annual leave and, secondly, because it remains a symbolic event in which a newly married couple are seen to go away and focus on each other which, naturally, doesn’t really interlink with the concept of working.

Does the recent European Court of Human Rights decision actually ban employee email monitoring?

You’ve probably seen the recent headlines: ‘Employer breached employee’s human right to privacy by reading workplace emails’, ‘Employers can’t place employee communications under surveillance due to human rights’, et cetera, et cetera.

The thing is, broadly speaking and barring one key exception, those headlines are wrong.  Why?  Firstly, because the facts of the case were unusual and, secondly, because the employer failed to do something which, nowadays, is standard practice and commonplace.

Let’s look into these two points briefly.

Does Brexit mean the end of European Court of Justice (ECJ) jurisdiction and why does it matter?

Let’s start with a little confession: that title is a bit tricksy. Why? Because the second part of it is completely hypothetical. The judgments and decisions of the European Court of Justice (ECJ) affect every employer and employee in the United Kingdom. This is not solely due to decisions affecting the interpretation of current UK Employment Law (such as workplace discrimination laws and working time regulations) but also through decisions affecting current and future business arrangements and/or impacting upon the UK economy. If the UK are truly to ‘take control of their laws’ (a constant Conservative buzzphrase), the logic is that the UK can’t be subject to the decisions of an EU court which changes the meaning of our laws.

However, there is another big question at stake here which is, after the terms of Brexit are agreed, who makes the decision as to which side is correct (UK or EU) if there is any future argument over incorrect application and/or breaking of Brexit terms.

By way of disclosure, I’m not going to state my personal views on whether Brexit is right or wrong here. What is clear is that the country has democratically voted to leave and the issue now is negotiating a reasonable exit on logical terms. On this front, I must admit, the current Conservative strategy of aggressive anti-EU comments, infighting and unreasonable and unrealistic bargaining positions has been disappointing.

On 23 August, the Government published their proposals for the future legal relationship between the UK and EU. Their paper is called “Enforcement and dispute resolution: A Future Partnership Paper” and can be found here. I don’t recommend it as bedtime reading – it’s dry, dull and extremely vague. However, some sections stand out and point to potential future effects on UK employers.

100 days of Sabbatical? – Are sabbaticals still a thing?

I’m a complete bookworm. Just ask my fiancé. On several flights, she might as well as been sitting next to thin air due to me disappearing into a Kindle-fuelled trance with the latest bestsellers.

The latest book to be devoured is ‘100 Days of Solitude’ by Daphne Kapsali. Put simply, the author of the book wanted a break from stress, deadlines and the fast pace of modern life. So, she decided to stay in a small house up a mountain in a remote Greek island during the autumn and winter for, yep you guessed it, 100 days.

Whilst she didn’t turn into a complete hermit (she spoke to distant neighbours, post office staff and the island’s numerous cats), she did learn how to pause for breath and focus on the little things whilst, at the same time, missing aspects of daily life (companionship, coffee shops, etc.)  By the end, she was glad for the experience but ready to return to ‘normal life’.

In the author’s case, she gave up her day-to-day job to fulfil her ambition to attempt 100 days of solitude.  However, is it possible to have a career break without being so extreme as to quit your job?

Unlike Justin Gatlin, is drug use at work the end of the track?

Without a doubt, the main conversation within sport this last week (aside from Neymar Jr being sold to Paris Saint-Germain for the equivalent of 666 million Freddo chocolate bars) was Justin Gatlin’s victory over Usain Bolt in the 100m.  Aside from being an unpopular win due to beating Usain Bolt in his final race, Gatlin’s victory was controversial (and noticeably booed by loud sections of the crowd) due to his past two performance enhancing drug bans.

Many people have asked the question as to why ‘drug cheats’ don’t face lifetime bans and, also, asked why he should be allowed to return when drug-taking could result in loss of career.

And it’s that ‘loss of career’ point that we’re going to explore briefly today. Namely, does being caught with illegal drugs (i.e. drugs that you do not have a prescription from your Doctor for) at work automatically result in your dismissal.

The short answer? Yes, no and maybe not.

Yes, in terms of the fact that being found with illegal drugs is almost certainly going to be treated as gross misconduct and, for most employers, committing a gross misconduct offence results in an investigation into whether to dismiss.

No, simply because an effective investigation will still need to be carried out by the employer, hence the dismissal won’t be ‘automatic’ (i.e. the employer won’t simply dismiss on the spot but, rather, would be best advised to suspend the employee pending an investigation and the carrying out of a disciplinary meeting).

And ‘maybe not’, because some employers (depending on all the circumstances) will give employees the chance to undergo rehabilitation before acting. I.e. if the employee agrees to enter an alcohol dependence programme and/or rehab, the employer will consider limiting its action and aiming to get the employee back to work. However, this is not common practice at present and strongly depends on the individual circumstances.