religion in the workplace – unsurprisingly a lack of clarity from the ECHR but some pointers for employers

Posted on February 27, 2013 by Martin Malone

Last month I reported the decision of the Employment Appeal Tribunal in the case of Celestine Mba v London Borough of Merton and, as promised, I am now returning to the issue of religious observance in the context of employment law.

The decision of the European Court of Human Rights (ECHR) in the combined cases of Eweida, Chaplin, Ladele, and McFarlane has unsurprisingly attracted a good deal of attention, and it seems certain to have a big impact. All of the cases centred around the right to manifest a religious belief, and whether UK law protected that right sufficiently. Two of the cases concerned how far an employer has to accommodate an employee’s wish to wear a necklace with a crucifix pendant at work, and the others concerned a relationship counsellor and a registrar respectively, who did not want to perform those parts of their jobs which conflicted with their views on same sex relationships, which in turn were based on their Christian beliefs.

In the cases relating to the wearing of crosses one failed, the ECHR taking the view that the employing health authority’s health and safety concerns justified their “no crosses” rule. The other succeeded because British Airways’ wish for corporate uniformity did not justify a rule which hampered an employee’s freedom of expression. Neither of the cases in which an employee wished to opt out of duties they regarded as inconsistent with their religious beliefs succeeded. In these cases there was a need to balance the right to manifest a religious belief which entailed disapproval of homosexuality and the right not to suffer discrimination on the ground of sexual orientation – within which there is a fairly broad margin. In the case of the registrar, the employer’s legitimate aim of providing a non-discriminatory service justified their decision to insist that all registrars conduct civil partnership ceremonies. Another factor to weigh in the balance was the question of choice – the relationship counsellor had gone into the job knowing what the duties entailed and that he could be required to perform duties he regarded as inconsistent with his beliefs, namely offering psychosexual counselling to same sex couples.

However, the tricky overlap between religion and employment law remains. Notwithstanding the decision of the European Court the Most Reverend Dr John Sentamu, Archbishop of York, unsurprisingly takes the view that entitlement to demonstrate religious observance should prevail:

Continue reading →

never on Sunday…well, maybe

Posted on January 28, 2013 by Martin Malone

Can a Christian care worker be required to work on Sundays? In February 2012 I reported the employment tribunal decision in the case of Celestine Mba v Merton Council. The decision went against Ms Mba and she was clearly aghast at what she regarded as intolerance against her own faith in what she considered to be a Christian country. It is therefore no surprise that the case subsequently found its way to the Employment Appeal Tribunal. According to the EAT judgment in Mba v the Mayor and Burgesses of the London Borough of Merton the answer can be "yes, there is a requirement to work on Sundays" in certain circumstances. Well, let’s face it, you didn’t expect an unequivocal decision one way or the other in the fields of employment and discrimination law did you?!

Ms Mba was a care worker in a children’s home. Her contract provided that she could be required to work on Sundays but the employer accommodated her wish not to do so for two years. The Authority then began to rota her for Sunday working as a result of understaffing. She objected on the basis that the requirement discriminated against Christians, including her, on the ground of her religious belief and was therefore contrary to the protection provided by the Employment Equality (Religion or Belief) Regulations 2003 (now incorporated within the Equality Act 2010). Her refusal to work on Sundays led to a final written warning and she resigned on the basis that the employer had imposed a provision, criterion or practice (PCP) that discriminated against Christians.

The judgment of Mr Justice Langstaff (President of the EAT) begins with a recital of the fourth Commandent: "Remember the Sabbath day to keep it holy". However he observes that although the fourth Commandment is not enshrined in law, the Regulations, when introduced, mean that it is no longer open to an employer to require staff to work on a Sunday and thereby disadvantage those who are Christian unless the employer can show that the requirement is objectively justified. The same protection could apply in respect of Muslims on a Friday and Jews on a Saturday. Continue reading →

A trivial comment or blasphemy?

Posted on November 28, 2012 by Martin Malone

In Heafield v Times Newspapers Limited an Employment Tribunal was concerned with the practical application of protection from religious discrimination. Mr Heafield worked as a sub-editor, proofing and finalising articles for publication in what was undoubtedly a high pressure environment. Stories would be given abbreviated names for quick reference. On the evening in question one such story concerned an allegation of concealment by the Pope of child abuse by a priest. In the course of the evening Mr Heafield’s line manager shouted across the room “can anyone tell me what’s happening to the ****ing Pope?”.

Mr Heafield did nothing at the time but, two days later, complained that the statement was “offensive, unnecessary and blasphemous”. No specific action followed the complaint. Instead the chief night editor took no action, believing that “these things tend to sort themselves out if left alone”.

Mr Heafield’s claim failed because although there was unwanted conduct which had the effect of upsetting Mr Heafield as a Catholic, ultimately the conduct was not “related to religion” and it was not reasonable for it to have had the effect claimed by Mr Heafield. It was a trivial comment which was made neither as an insult nor on the grounds of religion. In what is clearly a carefully prepared decision the Tribunal took the view that there was unwanted conduct because Mr Heafield was genuinely upset but it could not reach a finding that the purpose of the words used was to violate Mr Heafield’s dignity.

The Tribunal took into account that it was not disputed that Mr Heafield was unhappy about coverage in The Times of allegations of child abuse by Catholic priests. He felt that this demonstrated the newspaper’s “anti Catholic sentiments”.

I believe that many might have predicted a different outcome and, yet again, this emphasises that this is a notoriously difficult area of law in which it is dangerous to make assumptions. However, what is not in doubt is that in not dealing with the matter as a formal complaint, Times Newspapers had a lucky escape.

August employment news from abroad

Posted on August 26, 2012 by Martin Malone

Welcome to the Employment Solutions Blog from Saint Martin de Gurson (a small village between Bordeaux and Bergerac in South West France). As I hope you’ll understand this month’s report is a condensed version of the usual monthly report but I hope that you find some items of interest.

1. what happens if a claimant refuses to co-operate in obtaining medical evidence

GCHQ v Bacchus is a case in which Mr Bacchus failed to attend an appointent so that GCHQ could obtain its own psychiatric evidence in connection with his claim for disability discrimination based on anxiety. He was ordered by an employment tribunal to attend an appointment but did not do so. The tribunal nonetheless proceeded on the basis that it already had medical evidence (provided by the claimant). GCHQ appealed successfully to the Employment Appeal Tribunal. The EAT agreed with its submissions that it was unfairly disadvantaged by being unable to obtain its own medical evidence. However, the claim was not struck out. Instead, the EAT made an “unless order” requiring the claimant to attend the medical examination, failing which his claim would be struck out.

The case highlights a notable distinction between employent tribunal procedure and that which applies for personal injury claims in the county court. The standard court procedure is for the claimant to nominate proposed medical experts. If one is accepted by the defendant then a single report is prepared. However, the expert is required to make a statement acknowledging that the report is prepared for the court rather than for either party, and should therefore be impartial. On the face of it, there seems no good reason why the same procedure should not apply for tribunals. As I have commented on numerous occasions, taking into account the complexity of many tribunal claims, there is no reason why well tried court procedures should not be adopted.

2. can an employer fairly use a “pool of one” for selection for redundancy

In Wrexham Golf Co v Ingham the Employment Tribunal was asked to consider whether an employer can fairly use a “pool of one” when determining candidates (or, more accurately in this instance, a candidate) at risk of being made redundant. Those who are familiar with redundancy procedures will be aware of the need to be scrupulously fair when selecting a candidate or candidates for redundancy and the need to be able to demonstrate this if called upon to do so. It is generally an essential part of this process to identify what is commonly referred to as a pool of candidates for redundancy from which selections can be made. Often the pool will comprise employees in an under-performing department or those whose duties can be combined so as to reduce the overall number of employees performing a particular type of work. In some cases there might be only one employee performing a job which can de dispensed with.

However, the decision in Ingham emphasises that identifying the pool is but one part of the process of termination of employment which, overall, must be fair. When a tribunal considers the question of fairness a tribunal must consider whether the actions taken by the employer were within a range of reasonable responses available to a reasonable employer. In this case the tribunal had focused unduly on the question of “the pool” to the exclusion of the wider question of overall fairness in the context of the range of reasonable responses. Accordingly the finding of unfair dismissal, even though Mr Ingham was the sole bar steward at the club, was unfair, and the matter was remitted to a fresh employment tribunal for a full rehearing.

3. philosophical beliefs, the Proms and public protest

The BBC Proms 2012 are in full swing and provide those of us who enjoy them with a delightful selection of the finest classical music as particularly demonstrated by a recent concert of some of Vaughan Williams’ Symphonies which I was lucky enough to catch on BBC4 the other day. By the way, I recommend The Broadway Sound on 1 September, conducted by the remarkable John Wilson. Anyway, back to employment news! Sarah Streatfield is a violinist in the London Philharmonic Orchestra (LPO) who protested about a performance by the Israel Philharmonic Orchestra (IPO) at the 2011 Proms. Her protest took the form of a letter to the Independent protesting about the decision to invite the IPO to participate in the Proms. Three other members of the LPO and twenty other musicians were co-signatories.

She was suspended for six months on full pay for “damaging the reputation of the orchestra”. She claimed that the LPO failed to respect her “humanist beliefs” and claimed direct and indirect discrimination as well as harassment and victimisation.

An employment tribunal accepted that her humanist beliefs were capable of protection under the Equality Act 2010. However, since the LPO had no knowledge of those beliefs the discrimination claims stood no reasonable prospect of success. This resulted in the striking out of her claims for discrimination.

However, her claims for victimistation and harassment were not struck out. The tribunal provided an indication of its view of the prospects of the claims succeeding by requiring her to pay a £250 deposit as a condition of proceeding.

The significant aspects of the decision are that the claims for victimisation and harassment may proceed (subject to payment of the deposit) and, much more importantly as a general proposition, that humanism is a philosophical belief which is capable of protection under the legislation.

Many may take the view that this is a very liberal interpretation of what constitutes a philosophical belief capable of statutory protection. Although the decision is not binding on other tribunals, it might well be thought that the border between political and philosophical beliefs has been breached. An interesting philosophical question!

4. making employees on maternity leave redundant

Most employers are aware that treating employees on maternity leave unfairly is likely to result in an expensive claim for discrimination and, perhaps also, unfair dismissal. However, there are circumstances in which, entirely fairly, employees who are on maternity leave, find themselves at risk of redundancy. Since the factors which can lead to the need to redundancies can arise at any time, it is inevitable that, from time to time, those affected, may be on maternity leave. Those who are uncertain about such matters might reasonably decide to postpone redundancies or to exclude employees on maternity leave from the process.

There is an understandable and entirely approrpriate concern on the part of employers that affected employees should be treated fairly and, with this in mind, ACAS has published a guide for Managing Redundancy for Pregnant Employees or those on Maternity Leave. The guide is commendably well written and straightforward and includes really useful case studies which will undoubtedly assist those employers who face this scenario. It is highly recommended reading.

5. £157bn overtime and “nightcations”

This item comes with a source warning! According to research undertaken by Travelodge one in ten Britons are working an additional 16 hours’ unpaid work per week “in order to keep their bosses happy” and take a night off rather than a holiday in order to “recharge their batteries and boost relationships”. Apparently the value of this unpaid work is £157bn, based on an average 9.1 extra hours per week which equates to an average £5,726.18 unpaid work per working person. The report also states that 66% of adults are suffering “soaring stress levels” while 31% find it “difficult to get through the average week”. Apparently 37% of “workaholic Britons” are opting for “nightcations” instead of longer holidays.

According to Shakila Ahmed of Travelodge:

This year we have experienced a significant rise in just Saturday night bookings compared to previous years. To obtain a better understanding of the rationale behind this trend we commissioned research to investigate how the economic crisis is affecting the psychologies of British holidaymakers.

Our research findings have highlighted that Nightcation breaks are a growing trend amongst Britons as they are an easy to book, cost effective short break that help workaholic Britons recuperate and recharge for the week ahead.

Travelodge tell us that “more than a third of workers recognise that a Nightcation gives their relationship with their partner a much needed boost”.

I leave you to draw your own conclusions as I enjoy another glass of fine St Emilion while writing this newsletter in South West France!

6. finally, (for regular readers) I know that you’d be disappointed if there wasn’t a TUPE item!

In F & G Cleaners Limited v Saddington (the claimant’s name may seem appropriate in a TUPE case for regular readers) the question for the Employment Appeal Tribunal was whether employees who were offered self-employment in the event of a TUPE transfer were unfairly dismissed. The answer might seem obvious for regular readers (and TUPE aficionados) but it is surprising how often this scenario can arise, particularly in the field of contract cleaning.

Unsurprisingly the EAT took the view that there was no failure to mitigate by failing to take the offer of self-employment. However, the interesting twist is that it was also held that there could have been a failure to mitigate if the only disadvantage was the inability to claim unfair dismissal. For those who are interested in this point, I’ll leave you to click the link and read the judgment.

In this case the decision not to accept self employment was not a failure to mitigate and (important in employment law) the potential failure to mitigate did not arise when the offers were made but when the dismissals took effect. I doubt that this was a relevant consideration for the employees at the time. Who was the person who ever said that employment law is straightforward and suitable for a summary tribunal process?!

can a Christian be required to work on Sundays?

Posted on February 27, 2012 by Martin Malone

I have often written about the surprising extent to which protection is available from discrimination on the ground of religion or belief or, for that matter because of having no religion or belief. It is therefore perhaps surprising that one of the central tenets of Christian faith, rest on a Sunday, is not something to which Christians are necessarily entitled. There are special rules for shop workers and betting workers but apart from these sectors, unless the contract of employment states otherwise, it is usually possible for employers to insist on employees working on Sundays, even if they are devout Christians. The point was recently confirmed in the employment tribunal case of Celestina Mba v Merton Council. Miss Mba worked for Merton Council at Brightwell Respite Care House in Morden for three years. She was required to work on Sundays since the Council said it had a duty to ensure children had weekend care. Miss Mba said she was prepared to work night shifts and on Saturdays in order to avoid having to work on Sundays. However, the tribunal found that there was no viable alternative to her working on Sundays.

The tribunal also took into account evidence from witnesses including Michael Nazir-Ali, former bishop of Rochester, and concluded that not working on Sundays was “not a core component of the Christian faith” because it was observed by some and not by others. Continue reading →

more on philosophical beliefs

Posted on November 23, 2011 by Martin Malone

There seems to be a never ending stream of cases in tribunals at the moment concerning whether claims for discriminatory treatment on the ground of philosophical belief should proceed. In our October 2011 newsletter we examined some of the recent case law on the ever shifting limits of what may qualify as a philosophical belief. A Watford employment tribunal has now very lightly put the brakes on.

In Lisk v Shield Guardian Co Ltd, the subject matter was a topical one. Mr Lisk, an ex serviceman, objected when he was asked by his employer, Shield Guardian, to remove his poppy at work and he submitted claims for direct discrimination and harassment on the protected ground of philosophical belief. A pre hearing review was listed to determine whether the "poppy incident" claim should proceed. Continue reading →

just how far can the concept of philosophical beliefs extend?

Posted on October 26, 2011 by Martin Malone

As originally drafted, the Employment Equality (Religion or Belief) Regulations 2003 prohibited discrimination on grounds of religion or "similar" philosophical beliefs.

Then the Equality Act 2006 removed the requirement for such similarity, and extended the protection to any philosophical belief: the Equality Act 2010 s.10 continues with that wide definition.

Removal of just one word dramatically increased the potential for seeking protection from discrimination on a whole range of lifestyles, ideas and practices. As we’ve reported on many occasions it is fair to say that, over recent years, claimants have put forward quite an esoteric mix of possible candidates, and establishing whether these actually amount to a protected philosophical belief is becoming a standard pre-hearing review issue for employment tribunals. Continue reading →

indirect discrimination justified by expense alone

Posted on September 26, 2011 by Martin Malone

The recent case of Cherfi -v- G4S Security Services Limited has provided the Employment Appeal Tribunal (EAT) with an opportunity to consider whether indirect discrimination can be justified on the ground of cost alone.

Mr Cherfi worked as a security guard at a site in Highgate from 2005. He regularly took time off work on Friday (paid) lunchtimes to attend prayers at a mosque. In 2008 his employer told him that he could no longer do so because there was a contractual obligation to keep a minimum number of guards on site during operating hours. He was offered a changed working pattern, working Mondays to Thursdays and alternating Saturdays and Sundays so that he could take Friday as a day off. Mr Cherti refused this offer. Instead, he took time off for sick leave, annual leave or authorised unpaid leave. Continue reading →

religious discrimination

Posted on August 14, 2011 by Martin Malone

It seems that the Equality and Human Rights Commission agrees with the many Christians who believe that courts and tribunals “have interpreted the law too narrowly in religion or belief discrimination claims”.

In a Press Release issued on 11 July 2011 the Commission says that it is concerned that “rulings already made by UK and European courts have created a body of confusing and contradictory case law. For example, some Christians wanting to display religious symbols in the workplace have lost their legal claim so are not allowed to wear a cross, while others have been allowed to after reaching a compromise with their employer”. The Commission is at pains to point out that it is not supporting only Christians in this context – one example it gives is that of a Jew who asks not to have to work on a Saturday for religious reasons. Continue reading →

Yet more on what constitutes a “philosophical belief” in the context of discrimination

Posted on April 18, 2011 by Martin Malone

I have written on numerous occasions about the sometimes odd and unexpected practical applications of the Religion and Belief Regulations (now incorporated within the Equality Act).

This month has seen another and some would say rather tenuous interpretation of what constitutes a protected philosophical belief. Mr Devan Maistry worked for the BBC and presented complaints to an employment tribunal alleging discrimination based on his age and his belief that “public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion”.

At a preliminary hearing the tribunal had no difficulty in finding that Mr Maistry had a genuine belief in the “higher purpose” of the BBC. Perhaps more surprisingly the tribunal was also willing to accept that this constituted a philosophical belief capable of protection under discrimination legislation.

I am bound to observe that this latest in a series of similar decisions makes one wonder where the limits will be drawn when considering such matters. It is hard to imagine that the legislators had this type of scenario in mind when approving legislation to provide protection against discrimination primarily on religious grounds. Belief systems can be undertood to encompass religion, world view, philosophy, ideology or even “life stance” (for more on the latter read here).

I should make clear that I do not think that either Mr Maistry or those advising him are wrong in their approach to the claim based on current law. However I do question whether this is a legitimate area for statutory protection from discrimination. It is easy to see how many employees could have very strong views about the purpose and importance of the work that they do, e.g. teachers, doctors, lawyers, charity workers etc., but does that really mean that all should have a potential route to legal redress based on discrimination? There is also the troubling aspect of those whose philosophical beliefs are at the edges or perhaps beyond those which are acceptable to society as a whole. Presumably they should be entitled to similar protection? Perhaps the ultimate irony would be discrimination law coming to the protection of someone whose beliefs are profoundly discriminatory. Based on current case law, this is entirely conceivable and more or less inevitable. Yet again it seems that the best of intentions could result in a wholly unintended and unwanted outcome.