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For help with any employment law issues, call Jill Kelly on 01235 861919 or email: jkelly@employmentlawplus.com.

What employment law changes do you need to be aware of under the Enterprise and Regulatory Reform Bill?

We expect this Bill to come into law in the next few weeks. Here are the key provisions for employers and employees:

The government will be able to put a new cap on the maximum compensatory award in unfair dismissal claims. The current cap is £74,200. We expect that claimants will have compensation capped at a year’s salary or £74,200 if this is higher.
Employment tribunals will be able to fine employers if they breach an employee’s rights in an aggravated way. The fines will be between £500 and £5000.
Claimants will not be able to bring an employment tribunal claim until they have first tried to settle the claim through ACAS.
It will be possible for employers to have “protected conversations” with employees to explore reaching a termination of employment on agreed terms. If the negotiations are unsuccessful, the employee will not be able to refer to it in an unfair dismissal claim if they are then dismissed. However, this protection will not apply if the dismissal is “automatically unfair” (ie the dismissal was for one of certain prohibited reasons such as whistle blowing) or to claims of discrimination. The employer will also have to follow new ACAS guidance on how to hold the conversation.
Compromise agreements will be renamed settlement agreements.
To bring a “whistle blowing claim”, the employee will have to show that the issue they disclosed to their employer concerned the public interest. Currently, if is possible for an employee to bring a whistle blowing claim in the basis that the employer has breached their own contract of employment. This will no longer be possible.

Posted on 25 March 2013

Do employers have to accommodate religious beliefs in the workplace?

The European Court of Human Rights has ruled on a BA employee and a nurse prohibited from wearing crosses to work and and on a Christian relationship counsellor who did not want to counsel gay couples and a Christian wedding registrar who did not want to carry our civil partnership ceremonies. What does it mean for employers and employees?

All these employees brought claims for discrimination on grounds of their faith when they were disciplined or dismissed. They said that they were disciplined for trying to express their religious beliefs. Key to the court’s decision is that freedom of religion is not an absolute right. It must be balanced against other rights and obligations.

The nurse, the counsellor and the registrar all lost their claims effectively because other principles “trumped” their Christian faith. For the nurse, health and safety in a hospital was found to be more important than her being allowed to wear a cross because wearing necklaces carried a risk of injury when handling patients. For the relationship counsellor and the registrar, the employer’s equal opportunities policy took precedence over their faith based objection to dealing with gay couples.

The only claimant to win was the BA employee, Ms Eweida. The court decided that BA had committed discrimination on grounds of religion when it suspended her for refusing to hide the cross she wore round her neck on a chain.

BA’s decision was not based on a principle strong enough to “trump” Ms Eweida’s religious rights. BA said that its no jewellery policy was justified by its need to maintain its corporate image. However, this argument was undermined by the fact that it allowed employees to wear religious symbols which were mandatory to their religion, such as a turban, and there was no evidence that this damaged its corporate image. Also BA changed its policy after disciplining Ms Eweida and allowed crosses to be worn after all which was not consistent witha cross causing damage to its corporate image.

So for employers faced with requests or objections from their employees, based on religious belief, the key is balance. What is the objection to accommodating what the employee wants or doesn’t want to do? Is the objection based on evidence or just assumptions? If the business has strong, genuine grounds for refusing, this may well be lawful because the business is entitled to operate commercially and must operate lawfully. It is a question of weighing up the potential business harm against the disadvantage to the employee and trying to make any accommodations possible within the company’s requirements.

The same issues will apply to requests and objections based on other religious beliefs. However, where the request reflects a fundamental tenet of the religion, such as wearing a turban, the balance will be weighed more strongly in favour of the employee.

The same law comes into play when businesses consider requests for family friendly working arrangements which also concern claims for “indirect” discrimination. If a woman’s request for part-time working to manage childcare is refused, she may claim indirect sex discrimination. But the claim will fail if the business can show that it had genuine business reasons for needing her full-time and it had looked into all the options for complying with her request and none of them worked.

Posted on 15 February 2013

November 2012

In this edition:

Reducing working hours and redundancy
- And pools for selection
Pay in lieu of notice clauses
and more...

Click on the PDF icon to the right..