IN THE NEWS
ACAS EARLY CONCILIATION PROVISIONS: STRICT APPLICATION
If an employee fails to submit his/her claim to ACAS before filing the claim with the Tribunal, the Tribunal has no jurisdiction to hear the claim, however sympathetic it may feel to the employee’s situation. In this case the employee sought to bring a claim for sexual harassment and the Tribunal recognised that she had genuine reasons for not wanting to conciliate the dispute, however the Tribunal had no option but to reject her claim. This serves as a reminder that, whilst there is no obligation to actually conciliate, an employee must first submit his/her claim to ACAS rather than bypass early conciliation altogether.
Cranwell v Cullen UKEATPAS/0046/14
HOLIDAY PAY: TRIBUNAL REWRITES WORKING TIME REGULATIONS TO INCLUDE COMMISSION PAYMENTS IN HOLIDAY PAY
This case followed the European Court of Justice’s ruling that an element for loss of commission should be included in holiday pay calculations so as to properly reflect “pay” for employees. UK legislation does not allow for this, so in this case the Tribunal had to, in effect, re-write the UK’s Working Time Regulations to give effect to European law. This decision is being appealed by the employer, so caution should still be exercised in dealing with holiday pay issues.
Lock and others v British Gas Trading Ltd and another ET/1900503/12
UNIFORM POLICY WAS NOT DISCRIMINATORY
The employer, a childcare provider, had a uniform policy that required that clothing should not present a tripping hazard. A job applicant wore a full length jilbab to her trial day and interview and, when offered the job, was told of the uniform policy. The length of her jilbab was discussed in that the manager raised whether it might present a tripping hazard. The applicant then brought a claim for discrimination on grounds of religion or belief, saying that there was a requirement not to wear ankle length jilbabs, which discriminated against Muslim women. Both the Tribunal and Employment Appeal Tribunal found that, in fact, the policy was not to wear clothing that presented a tripping hazard and this did not discriminate against Muslim women as the employer allowed ankle length jilbabs provided they did not present a tripping hazard. The Tribunals also noted that if the requirement was discriminatory, it would have been justified on health and safety grounds as there was a need to protect staff and children.
Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) UKEAT/0309/13
CHRISTIAN NURSERY WORKER WAS DISCRIMINATED AGAINST
A Christian nursery assistant was found to have been subjected to direct discrimination because of her beliefs when she was dismissed following a conversation with a lesbian colleague during which she expressed her belief that God does not approve of homosexuality. The Tribunal found that the employer had been wrong to characterise the conversation as harassment as both employees had willingly participated in the conversation. The employer in this case appears to have had a knee-jerk reaction to a potentially difficult situation in the workplace, which did not help it in trying to defend this claim.
Mbuyi v Newpark Childcare (Shepherds Bush) Ltd ET/3300656/14
NO IMPLIED DUTY TO DISCLOSE MISCONDUCT ALLEGATIONS
An employee breached his employment contract by undertaking alternative work for a third party without his employer’s permission. In that secondary work, he was accused of sexual assault. He was dismissed by the employer for the breach, but also for failing to report the allegations. The Employment Appeal Tribunal found that the employee was not under a duty on to report allegations against him, except for ones he knew or had reason to believe to be true, so his dismissal was unfair. This case serves as a reminder that employers should take extra care where the alleged misconduct occurred outside of the workplace.
The Basildon Academies v Amadi UKEAT/0343/14