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Liverpool office
May 2016 Review
Welcome to our new look newsletter. As well as complementing the layout of our recently updated website, the new design is also intended to be easier to read in most email platforms as well as on tablets and mobiles.

This month we have reports from Katharine Kelly concerning indirect religious discrimination and whether a demotion can amount to a breach of contract which is sufficient to maintain a claim for constructive unfair dismissal.

Meanwhile Susan Stafford addresses what is undoubtedly the most widely reported and potentially significant development in May which is the Opinion of the Advocate General in the European Court that G4S was entitled to dismiss an employee who refused not wear a headscarf, simply on the basis of having a policy that banned the wearing of religious symbols or clothing. The European Court nearly always follows the Advocate's opinion so this is likely to become the leading statement of the law in this contentious area.

Kind regards,
Martin Malone
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Employment law support with direct access to specialist employment lawyers is available from just £99 per month. If you are interested in the service and would like to arrange a free visit from one of our lawyers, please call FREE on 08000 832 832 or send an email to enquiries@clbemployment.com.
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NEW OFFER: Throughout May and June we are offering you the opportunity of an on-site audit of your employment documents and procedures from one of our experienced employment lawyers completely free of charge and with no obligation. Who says that lawyers always cost you money? We will conduct a detailed check to ensure that your employment procedures are fully up to date and, if they are not, we will let you know what needs to be dealt with. Surely it's worthwhile, if for nothing else other than the peace of mind in knowing that an independent expert review has been carried out. If you would like to make an appointment please contact Katharine Kelly (0151 239 1079 / katharinekelly@canter-law.co.uk) or Susan Stafford (0151 239 1009 / susanstafford@canter-law.co.uk).
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This month's news
Indirect religious discrimination
by Katharine Kelly
Can a worker be dismissed for refusing to leave a partner convicted of unrelated criminal conduct with which the dismissed worker was not involved?

This question was considered in the recent case of Pendleton v Derbyshire County Council & Anor (Religion or Belief Discrimination) [2016] UKEAT 0238 15 2903. The facts of this case were that the Claimant's (Mrs Pendleton's) husband was the headteacher of a local school. The Claimant herself was also a teacher employed at another local school where she was teaching a Year 6 class, had an unblemished disciplinary record and was highly respected both in school and also within the Anglican Christian community (being a devoted and practising Anglican Christian).

In January 2013 the Claimant's husband was arrested on suspicion of downloading indecent images of children and voyeurism. He was later convicted of these offences and sentenced to ten months' imprisonment.

The Claimant initially left her husband and went to stay with her parents, taking leave from work - at this point the headteacher of the school where she was employed assured her that her position would remain open for when she returned. Although there was no evidence that the Claimant had any knowledge or involvement in her husband's actions, the headteacher had also stated that the school couldn't support her if she stayed with her husband.

During her period of leave the Claimant decided that whilst she did not condone what her husband had done, she placed importance on her marriage vows and would therefore stay with him if he could show unequivocal repentance.

The school subsequently dismissed the Claimant summarily, stating that she had "...chosen to maintain a relationship with [her] partner who has been convicted of making indecent images of children and voyeurism. This has led the panel to believe that [her] suitability to carry out the safeguarding responsibilities of [her] role . have been eroded. Furthermore, the choices [she had] made in [her] personal life are in direct contravention to the ethos of . the . School".

The Claimant's appeal against her dismissal was unsuccessful and she therefore brought claims of unfair dismissal, wrongful dismissal and indirect religious discrimination against the Respondent based upon her religious beliefs as noted above.

The Employment Tribunal agreed with the Claimant's submission that she had been unfairly dismissed, stating that the reason for her dismissal was not some other substantial reason (SOSR) - she had not committed an act of misconduct let alone gross misconduct - but rather the Respondent's view that the Claimant had used poor judgment in staying with her husband despite him being a convicted sex offender. The Claimant's claim of wrongful dismissal also succeeded in light of the above.

With regards the indirect discrimination claim however, the Tribunal noted that the claimant held a belief for the purposes of section 10(2) Equality Act 2010, that: "her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith". The Tribunal further accepted that the Respondent had applied a provision, criterion or practice of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism, however concluded that the Claimant would have been dismissed whether she believed in the sanctity of marriage or not as another individual in the same situation would have also been dismissed, even if they did not share the Claimant's religious belief. The Tribunal did comment however that had they needed to consider the question of proportionality, they would have found that the Respondent did not show that the dismissal was a proportionate means of achieving a legitimate aim.

The Claimant appealed to the Employment Appeal Tribunal (EAT) on the basis that making her choose between her marriage vows and her career was enough to show she had been placed at a disadvantage, especially given she had been required to act against her religious beliefs.


Billy Bremner
Can a demotion amount to a breach of contract/constructive dismissal claim?
by Katharine Kelly
In the case of Gibbs v Leeds United Football Club Ltd [2016] EWHC 960 (QB) (28 April 2016) the matter in question concerned a contract of employment between the Claimant (Mr Gibbs) and the Respondent (Leeds United FC).

The question was whether the Claimant had been constructively dismissed due to a repudiatory breach of his contract of employment by Leeds United, or whether he chose to leave the club without there being any breach of contract. There was a also a further question in respect of whether the Claimant acted unreasonably in failing to mitigate his losses by rejecting the offer of the role of Head Coach after he had resigned.

By way of background information, the claimant's contract of employment stated that he must "diligently exercise such powers and perform such duties as may from time to time be assigned to him by the Chief Executive and the Board at which are commonly undertaken and exercised by the managers of Professional football club companies of the Company's status in relation to the playing, coaching and scouting aspects of the Company's undertaking (included but not limited to player conditioning and the development of tactical instructions and playing standards generally) and in the discharge of the same he shall:...comply with all reasonable and lawful instructions and requests given:...(B) to the Assistant Manager by the Chairman; (C) to the Assistant Manager by the Company; (D) to the Assistant Manager by the Chief of the Executive...and perform such hours of work as may from time to time reasonably be required of him...".

The Claimant was engaged on a fixed term three year contract, however after around eight months of employment the Respondent Company was purchased by a Mr Cellino. The Respondent thereafter wanted to recruit their own management team, and agreed with the Claimant's manager to end the manager's contract early - the Claimant therefore expected that the same thing would happen to him.

A new manager was subsequently recruited by the Respondent along with a new assistant manager, however the Claimant was not offered a termination package. The Claimant did express during a meeting with the owner of the Company that if work was not available for him, he would be happy for his contract to be terminated if a termination package could be agreed.

An agreement was not met however and the Claimant subsequently reported to work under the new manager. Unfortunately they did not get on and the Claimant received an email stating that his role had been changed and he was now required to train the Respondent's youth players instead of the first team. The Claimant felt that this instruction constituted a demotion and subsequently resigned.

Four months later, strangely, the Claimant was offered the role of manager following the dismissal of his predecessor. He refused this offer, stating that the treatment he had received by the Respondent had undermined his relationship with his fellow employees. The Claimant brought a breach of contract constructive dismissal claim against the Respondent.

The High Court held...


Woman wearing headscarf
Judge at EU's top court backs workplace ban on headscarf
by Susan Stafford
An advocate general at the European Court of Justice has said that companies should be free to ban Muslim women from wearing head scarves if they have a general policy barring all religious and political symbols.

This was said in the run up to a landmark ruling expected from the EU's highest Court this year. The case involved a woman who worked as a receptionist for the company G4S. After working for the company for three years she decided to start wearing a headscarf for religious reasons. As a result the employee was dismissed given that she had contravened Company policy, which at the time was an unwritten rule.

The employee brought a claim for wrongful dismissal. This was dismissed by the lower courts and further on appeal. However it was referred to the European Court of Justice in Luxembourg to establish whether G4S had contravened the European Union's anti-discrimination directive.

The Advocate General provided an indication that such a ban would not be deemed direct discrimination and could be justified in order to enforce a policy on religion and ideological neutrality. In arriving at this decision it was said that "whilst an employee cannot leave their sex, skin colour, ethnicity, sexual orientation, age or disability at the door, upon entering their employer's premises, they may be expected to moderate the exercise of his religion in the workplace".

If the European Court of Justice's final ruling agrees with that of the Advocate General, then this will be landmark decision. However, this is not the first time that the contentious issue has come before the European Courts.


article image
Tips and troncs - under review
by Susan Stafford
It has recently been announced that the Government is to consult on a proposal to ban deductions from employees' tips. It has long been accepted that employers are within their rights to make the deductions despite the apparent unfairness. However, not surprisingly, and following the exposure of deductions made from some of Britain's best known restaurant chains the Government has following an 8 month review, decided to consult as to whether deductions from staff tips should be scrapped.

The deductions are taken in the name of an "admin fee" and mean that staff do not get the full percentage of the tips that were intended for them. Unite officer Dave Turnbull said:
"We are pleased that the government has woken up to this scandal, but we would ask that they think carefully about an effective solution. Capping admin fees will simply legitimise the underhand practice of restaurants taking a slice of staff tips and be near enough impossible to enforce.

"When customers eat at the likes of Pizza Express, they give tips in the expectation that all of it will go to staff and not be pocketed by management."
The Government's consultation, which will run until 27 June, sets out options for meeting three broad objectives: making it clear that tips and service charges are voluntary; making it clear where these payments go; and ensuring workers get a fair share of the money raised.

The Government said that while unions and other employee groups had asked for a requirement for 100 per cent of tips to be paid to workers, and the majority of customers would prefer to see this, employers were "more supportive of retaining the current treatment of discretionary payments for service; maintaining their flexibility to reward workers but increasing the transparency of actions".

Prior to 2009 restaurants were allowed to take tips and gratuities into consideration to effectively make up national minimum wage. However, from October 2009 such deductions were prohibited which meant that all eligible workers must receive at least national minimum wage in base pay with any tips paid on top. With that has brought a great deal of confusion as to what this meant.


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Designed from the ground up and provided only by Canter Levin & Berg Solicitors, we act for organisations nationwide. Our unique proposition has always been to deliver a prompt, efficient, and personal service to our subscribers through the provision of direct access to our specialist employment solicitors.

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Katharine Kelly
Katharine Kelly
Katharine specialises in making sure that employers have all their employment law and HR requirements in place and up to date. Her pleasant manner is combined with her knowledge of employment law issues from a legal perspective so that she makes sure that employers have maximum protection and immediate support in connection with all problems which they may encounter on a day to day basis. Katharine is "on call" to deal with her clients in a way which her clients really appreciate. She will always take the next step to make sure that problems are solved quickly, efficiently and professionally.
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Sean Carty
Sean Carty
Sean joined the Employment Department of Canter Levin & Berg in December 2007. He has experience in all areas of employment law though specialises in Employment Tribunal litigation. Sean has particular expertise in dealing with complex discrimination matters, business reorganisation and redundancy, and unfair dismissal. He also deals with company disputes, breach of contract claims and injunctions, including claims relating to breaches of restrictive covenants.
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Susan Stafford
Susan qualified as an Associate Solicitor in January 2016 and works within the Employment Law Department. She deals in all aspects of employment law but particularly specialises in advising employers from a variety of industry sectors on all aspects of employment law and human resources issues, ranging from drafting company documentation through to dismissal
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