Summary: In our July update we review an important European Advocate General opinion on religious discrimination, and cases on disability discrimination and working time. We also consider the employment law implications of Brexit and the latest developments on modern slavery.

Brexit – Employment Law Implications

Unsurprisingly, the end of June has been dominated by the outcome of the UK’s referendum on EU membership. In our blog we consider the Top Five Employment Law Implications of Brexit.

Employers will also be interested in the data protection implications, which are considered in more detail by our Intellectual Property and Data team: the Implications of Brexit for the GDPR.

Equal Pay – Asda claims proceed in the Employment Tribunal

Asda is currently facing thousands of equal pay claims from a group of predominantly female current and ex-store workers who allege that they have not received equal pay to their predominantly male warehouse colleagues. In Asda Stores Ltd v Brierley & Ors, Asda sought a stay of these proceedings on an indefinite basis, which would have forced the individuals to bring their claims in the High Court. The Court of Appeal has followed the decisions of the Employment Tribunal and two EAT judges and refused to grant the indefinite stay. Despite the importance of the case, Lord Justice Elias did not agree that it would be better dealt with by the High Court, nor did he find that the Tribunal had the power to grant an indefinite stay in these circumstances.

Our blog, Equal Pay: Court of Appeal confirms Asda claims should be heard in the Employment Tribunal, covers this decision in more detail.

Religious Discrimination – Absolute ban of all religious symbols in the workplace was not direct discrimination

The Advocate General has given an opinion that a policy which bans the wearing of all religious symbols in the workplace does not amount to direct discrimination. Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions is the first religious discrimination case to reach the ECJ. The case, referred from the Belgian courts, concerns a female Muslim employee who was dismissed when she refused to comply with a policy which prevented her from wearing her headscarf. Her employer, G4S, has a policy which prevents the wearing of any visible signs of an employee’s political, philosophical or religious beliefs as part of its general policy of neutrality. The employee’s religious discrimination claim failed at first instance. On appeal, a reference was made to the ECJ, which was asked to consider whether the prohibition on wearing a headscarf in these circumstances constitutes direct discrimination.

The Advocate General firstly held that this policy does not amount to direct discrimination. There was no evidence that it discriminated against one religious community in particular or against religious individuals in general, since it also applies to political and philosophical beliefs. Instead, there is a difference of treatment between individuals who wish to give active expression to a belief and those who do not feel the same “compulsion”. This does not constitute less favourable treatment on grounds of religion.

Perhaps more controversially, the Advocate General went on to consider the concept of “justification”. She started with a statement that both indirect and direct difference of treatment are capable of justification under the Equal Treatment Directive under certain conditions. In particular, the Article 4(1) of the Directive provides that treatment is not discriminatory where there is a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. This is a broader concept than the UK’s concept of a genuine occupational requirement, but the Advocate General states that there is no need for this to be set out in national law for it to apply. Her conclusion was that G4S’s policy of neutrality is capable of being a genuine and determining occupational requirement provided that it is proportionate, i.e. it is appropriate for the objective, is necessary to achieve it and it does not cause undue prejudice to the individuals affected. While this is for the Belgian courts to decide, the Advocate General set out a number of factors to be considered when assessing whether it causes undue prejudice, including how conspicuous the item is, the nature of the employee’s role and whether any other protected characteristics are infringed. Her view was that there was much in this case to support the argument that the policy is proportionate.

While this was a referral from the Belgian courts, it is interesting to compare it to the approach taken by the European Court of Human Rights in the case of Eweida and Others v the United Kingdom. In Eweida, a Christian employee was prevented from wearing a visible cross at work by her employer, British Airways. Although her claim failed in the Court of Appeal, the ECtHR found that this infringed the employee’s right to manifest her religion. Having highlighted the importance of consistency when considering proportionality, the Advocate General distinguished Eweida, partially on the basis that G4S’s policy applied without exception whereas BA’s policy was not applied absolutely as certain religious items were permitted to be worn with express permission.

This case highlights a problematic area of discrimination law. The UK’s approach so far has been to consider cases on their own facts. By contrast, other jurisdictions, notably France as well as Belgium, have been active in legislating against public displays of religion on the basis of the constitutional principal of secularism. There is a tension between these two approaches, so it is important that the Advocate General, when considering the prejudice to the employee, draws a distinction between religion and other grounds of discrimination, on the basis that employees are able to “exert an influence” on the exercise of their religion in the workplace in a way that is not possible with, for example, sex or race. This suggests that the manifestation of religion is something an employee can choose to set aside and therefore carries less weight. This is controversial and while the ECJ is not bound to follow this opinion, there is a danger that if it does so it will place religious discrimination on a lesser footing than the other protected characteristics.

Disability Discrimination – Expectation on employee to work long hours can be a PCP

The EAT has overturned a decision of the Employment Tribunal and found that the expectation that an employee will work long hours is capable of being a provision, criterion or practice (PCP) for the purposes of a reasonable adjustments claim.

In Carreras v United First Partnership Research, an analyst who was disabled following a bike accident was put under pressure to return to working the long hours that he had worked prior to his accident. This pressure initially took the form of requests to work late. Subsequently, it was assumed that he would do so and, when he complained, he was told that if he didn’t like it he could leave. Mr Carreras resigned and claimed constructive unfair dismissal and disability discrimination. The Tribunal rejected both his claims. In relation to the reasonable adjustments claim, it found that he was “requested” then “expected” to work longer hours, but that there was no actual “requirement” for him to do so, so he had failed to identify a PCP. The EAT disagreed, confirming that there is no need for there to be a “requirement” in the narrow sense. The EAT also found that the decision on the constructive dismissal was flawed. The case has been remitted.

Given that the EAT’s finding on “requirement” accords with the Equality Act 2010 itself and with the EHRC Code, this is not a surprising decision. However, it does serve as a warning to employers with long hours cultures that adjustments may need to be made to the working arrangements of disabled employees, even in the absence of a written policy or formal requirement.

Working Time – No injury to feelings awards on breach of rest break requirements

Where an employee’s rights under the Working Time Regulations (WTR) have been breached, they are entitled to compensation. In Gomes v Higher Care Services Limited, the EAT considered whether such compensation could include an award for injury to feelings.

Ms Gomes’s employer had failed to comply with its obligation to provide her with rest breaks. She was awarded £1,220 compensation but appealed, arguing that the Tribunal had been wrong to refuse her compensation for injury to feelings.

The EAT upheld the Tribunal’s decision and confirmed that injury to feelings awards are not available. Compensation under the WTR is based on the employee’s economic loss and the employer’s default, not on the injury suffered by the Claimant. Compensation for injury to feelings is awarded in discrimination cases and under other statutes where an individual’s identity is protected. There was also no right to compensation for injury to feelings under the Working Time Directive itself. Accordingly, the WTR did not need to be interpreted as allowing injury to feelings awards so as to ensure the proper implementation of the Directive.

Modern Slavery

Two recent cases have highlighted the growing recognition of modern slavery and the desire to tackle it. In the first case, Galdikas & Ors v D J Houghton Catching Services Ltd and Ors, a British company was ordered by the High Court to pay compensation to a number of workers it had engaged and who were found to be the victims of human trafficking. In the second case, individuals were given prison sentences for offences including modern slavery offences.

While neither case directly involved a large company, the first case involved a gangmaster firm which worked on farms that supply eggs which are ultimately sold by a number of major UK supermarkets. The cases are therefore a reminder that modern slavery does happen in the UK. The obligation to produce an annual slavery and human tracking statement applies to relevant businesses in relation to the financial year ending on or after 31 March 2016. Government guidance suggests that statements should be published within six months of the year-end.