Employment news round-up – July 2016

Solicitor Joanna Smart on this month's Employment Law highlights.


New offence of illegal working in force

Section 34 of the Immigration Act 2016 came into force on 12 July. This means that working when a person does not have immigration permission to do so is now a criminal offence. This will therefore affect visa overstayers and refused asylum seekers who do not have permission to work, for example.

Please see our earlier update on the Immigration Act for further information about this section and the other provisions under this Act.


Acas Code updates

There have been two recent judgments confirming the scope of the Acas Code of Practice on Disciplinary and Grievance Procedures ("Acas Code"). In the first, Phoenix House Ltd v Stockman and another UKEAT/0264/15, the EAT confirmed that the Acas Code is not applicable to dismissals for some other substantial reason ("SOSR"), where the dismissal is attributed to an irretrievable breakdown in the working relationship. This decision involved a more literal view of the Acas Code that we have seen in recent cases and, therefore, should be welcomed by employers for the clarity that it now creates. Notwithstanding this case, employers are reminded of the caution which should be exercised when relying on a dismissal for reasons of SOSR and the very careful steps that should be taken to demonstrate fairness.    

The second, Holmes v Qinetiq UKEAT/0206/15, resulted in confirmation from the EAT that the Acas Code applies only where there is culpable conduct on the part of the employee. This case involved poor performance of an employee as a result of genuine illness and, therefore, it was held that the Acas Code was not applicable. The result of that meant, therefore, that the Claimant's assertion that he be awarded an uplift to his compensation on the basis that Qinetiq failed to follow the Acas Code was unsuccessful. This is, again, a helpful clarification for employers that they need not follow the Acas Code where there is no element of culpability on the part of the employee, e.g. where an employee is absent through illness leading to dismissal.

Bevan Brittan's employment team has extensive experience on advising employers on SOSR dismissals and have successfully defended a number of cases where such dismissals have been challenged. If your organisation is considering dismissing an employee by way of SOSR, or if you want to find out more about how this can be done, please contact me or your usual contact at Bevan Brittan.


Private sector equal pay cases

In the case of Asda Stores Ltd v Brierley and others [2016] EWCA Civ 566, the Court of Appeal upheld the previous decisions of the employment tribunal and EAT to refuse to stay equal pay proceedings indefinitely in order to effect a transfer of proceedings to the High Court. The claim relate to over 7,000 female employees of Asda who assert that they should be paid the same as Asda's distribution depot employees, who are mainly men.

Both the High Court and employment tribunals can hear equal pay claims; in this case Asda had argued that the High Court should hear the claims because of the complexity of the issues, covering points of both EU and domestic law, and because of the potential significance of the outcome of the case for them and private sector retail employers in general. In effect they argued that the employment tribunal would not have sufficient knowledge or expertise to deal with this complex claim. (One could question the wisdom of this approach bearing in mind said argument was brought in the employment tribunal!)

This application was dismissed and that decision has been upheld by the appeal courts who held that there was no arguable case. We understand that the claims were therefore listed to be heard by an Employment Tribunal at the end of June and a decision is awaited from that hearing.


Grand Chamber of ECtHR to hear challenge against employee's personal use of an 'instant messenger' service at work.

Back in January of this year we reported on the case of Barbulescu v Romania which was heard in the European Court of Human Rights. This held that the monitoring of internet usage and the use of Yahoo messages in the employee's disciplinary proceedings was a proportionate interference in his Article 8 rights.

On 6 June 2016 this case was referred to the Grand Chamber of the European Court of Human Rights. Whilst we await their decision please see our previous article on the original decision and what it means for employers.


Is a ban on wearing an Islamic headscarf discrimination?

This question has been answered by way of an opinion from the Advocate General who has held that a workplace ban on employees wearing religious signs or apparel when in contact with customers is direct discrimination on the grounds of religion or belief.

This related to the French case of Bougnaoui and another v Micropole SA (Case C-188/15); Mrs Bougnaoui, a Muslim woman, was dismissed after refusing to take off her headscarf when required to do so by her employer, following a specific customer complaint. After being unsuccessful in her claim for religious discrimination before the labour court and subsequent appeal, the Cour de Cassation (on a further appeal) referred the matter to the Advocate General for an opinion.

The Advocate General held that the action by the employer was direct discrimination and that, therefore, Mrs Bougnaoui had been treated less favourably on the ground of her religion. In fact, in giving her opinion the Advocate General sought to widen the notion of direct discrimination to encompass, not only less favourable treatment because of a person's religion, but less favourable treatment because of a person's manifestation of their religion. In this case, Mrs Bougnaoui was dismissed because she would not remove her headscarf, i.e. a manifestation of her Muslim faith. Furthermore, the Advocate General commented that if this were a case of indirect discrimination, then it is unlikely that the requirement would be proportionate. However, this question will need to be answered by the domestic court.

Should the ECJ accept this opinion then this will be a departure from the opinion given in the case of Achbita and another v G4S Secure Solutions NV (Case C-157/15), where it was held that a dress code which included the headscarf ban did not amount to direct discrimination based on religion or belief, and that, even if it did, it could be justified as a genuine and determining occupational requirement, under Article 4(1) of the Directive. In this case the Advocate General had further confirmed that it would not be indirectly discriminatory, as it was objectively justified by the employer's legitimate commercial objective of religious and ideological neutrality.

The ECJ has yet to rule in both of the above cases and, therefore we will keep you posted on the outcomes and the effects of these.

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