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Religious Beliefs and Annual Leave

April 26, 2017 at 9:00 AM

Businesses will soon face a rush of last minute holiday requests from employees wanting to enjoy some nice weather, be with family, escape the general election or, as in the following case of Mr Gareddu, attend religious festivals.

Airport Timetable

Mr Gareddu is a practising Roman Catholic of Sardinian origin. According to him, from 27 July to 2 September, Sardinians honour various Christian saints at some 38 different festivals.

Between 2009 and 2013, Mr Garredu would always take the five weeks from the end of July and early August as annual leave from his job with London Underground to go to Sardinia. He estimated that he would attend around 17 festivals of the saints with whom he felt a particular affinity.

In 2014, Mr Gareddu’s line manager changed. His new line manager informed him that he would only be allowed to take a maximum of three weeks' consecutive leave. By most standards this is generous - but it meant he could not spend as much time in Sardinia at the religious festivals as he had in previous years. He brought a claim in the Employment Tribunal for discrimination.

Mr Gareddu claimed taking a five-week period of leave to attend religious festivals was a manifestation of his faith and that the policy of allowing no more than three weeks holiday to be taken at any one time was indirectly discriminatory on religious grounds - it prevented him from expressing his religious beliefs.

The Tribunal found attending religious festivals could amount to a manifestation of a religious belief and so attract protection under the Equality Act 2010. However, Mr Gareddu was not successful in his claim.

The Tribunal assessed whether he really needed five weeks off to manifest his beliefs and identified a number of inconsistencies in his evidence:

Mr Gareddu claimed he would attend 17 festivals, but in the most recent year he had only attended nine. As regards which festivals, they were not always the ones of the saints with whom he felt a particular affinity – rather, he went to those his family members were attending.

The Tribunal concluded Mr Gareddu’s assertion of requiring five weeks consecutive annual leave to manifest his beliefs was not genuine and dismissed his claims.

This case proves an important lesson. Claimant’s should be careful not to 'over-egg the pudding'. Mr Gareddu’s witness statement looked persuasive - but was not borne out by the facts. Instead of helping Mr Gareddu, the facts undermined his credibility.

Employers should have in place a holiday policy with maximum periods of consecutive leave, ensure it is communicated effectively across the business and applied consistently. While few employees would expect five weeks’ leave, some may expect to have the same two or three-weeks off each year. Be fair: a ‘first come, first served policy’ with suitable exceptions for significant life events (such as marriage) may be a practical solution.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

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Can employers make staff speak English at work?

April 25, 2017 at 9:00 AM

1.8 million employees in the public sector who have customer-facing roles will be expected to be able to speak fluent English to customers. The legal position for private companies wanting to introduce a similar requirement is less clear. How employers assess fluency can be controversial.

The Immigration Act 2016 came into force in December last year and introduced a Code of Practice for employers to follow with the intention to increase standards in order to meet “the public’s reasonable expectation to be able to speak English when accessing public services”.

Employers are free to decide what they need for roles in their own business, but they should not breach their duties under the Equality Act 2010 by discriminating against staff.

Some employers may think it important for all their staff have a perfect command of English, but imposing such a requirement is potentially discriminatory. The provision, criteria or practice (PCP) could disadvantage those whose first language is not English and so amount to indirect race discrimination unless the requirement can be objectively justified and is proportionate means of achieving a legitimate aim.

Can employers make staff speak English at work?

Practically, so long as someone’s English is good enough for them to carry out their duties, any requirement to have a better command of the language could lead to a complaint to an Employment Tribunal. This means that the same employer could have a variety of roles with different language requirements – such as working on reception to require a higher proficiency than roles which require minimal interaction in English, for example, cleaning roles.

Employers can easily face problems when trying to exercise control over what language is used in the workplace.

In 2010, an Employment Tribunal found that an employer directly discriminated against a Polish worker when instructing him not to speak Polish in the workplace Dziedziak v Future Electronics Ltd.

In 2015, the Employment Appeal Tribunal agreed that telling someone to only speak a particular language in the workplace could be discriminatory. Kelly v Covance Laboratories Ltd.

The Equality and Human Rights Commission Employment Code of Practice states: “Employers should make sure that any requirement involving the use of a particular language during or outside working hours, for example during work breaks, does not amount to unlawful discrimination”.

Conversely, Uber has become embroiled in a dispute with Transport for London and wants the rules applying to its drivers passing an English test to be relaxed. Rather than wanting their drivers to speak English, Uber is challenging TfL’s rule that their drivers pass a written English Test as part of the license application process which TfL say is in the public interest, namely the “safety, welfare and convenience of passengers.” Uber believe the ruling would put at least 33,000 drivers out of business.

TfL aside, just what the appropriate standard of English is will be something that each employer will need to determine on a role by role basis. Difficult decisions may have to be made about what degree of fluency is required and how this should be assessed.

Not all workplaces have a policy on language at work. Employers could be proud of the diversity of languages spoken by their workforce. For those with a policy requiring English to be spoken, unless their aim is legitimate or who go a step further and prohibit the speaking of another language at work, they run the risk of a costly discrimination claim.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Holiday Headaches for Employers

April 14, 2017 at 9:00 AM

Easter and summer holidays present employers with a tough challenge – how to balance the needs of their business with a worker’s right to take annual leave.

Employees and workers have a legal right to a minimum 5.6 weeks' paid leave each year – the equivalent of 28 days for someone working full-time. A part-timer’s entitlement will be pro-rata depending on the number of days or hours they work.

Strangely, the law giving workers paid holiday - the Working Time Regulations, does not give the automatic legal right to take a public holiday as leave. Whether someone has to work on a public holiday or not is entirely a matter for negotiation between the business and worker and should be covered in the written contract to avoid any confusion or dispute.

How part-time workers are treated when it comes to public holidays is not consistent either. Some employers will only pay employees for public holidays if the day in question falls on a day which the worker would normally be at work. However, this has been the cause of many a workplace dispute and Tribunal claim and could be a breach of the Part-Time Workers Regulations 2000 - some part-time workers such as those with no fixed days or those who do not normally work on Mondays (most public holidays are on a Monday) could argue they are treated less favourably compared to full-time workers.

The simplest way to achieve equality is to give all part-time workers a pro rata entitlement to public holidays, regardless of whether they normally work on days on which a public holiday falls.

Holidays and discrimination

Most Christian religious days like Easter are also UK public holidays. However, important non-Christian religious days do not receive the same recognition. This can leave employers trying to accommodate requests to book holiday at times when the business is planning to be fully operational. Where there are a large number of employees who want to take the same time off, it may not be possible to accommodate everyone for operational reasons.

Employers should approach all holiday requests fairly by using a consistent system for reviewing them and try reasonably to balance their needs as business and those of their workers - but without putting those of a particular religion or belief at a disadvantage. Otherwise they risk a time consuming and potentially expensive claims of discrimination in an Employment Tribunal. What is reasonable will depend on the size of the employer, its resources, and the number of employees requesting leave at the same time.

There are more risks for the unwary employer: Tribunals accept that more women than men have caring responsibilities for children, so an inflexible policy that prevented annual leave at certain times that coincided with school holidays could be open to challenge of sex discrimination if the woman was unable to put alternative childcare arrangements in place.

Employers must have a genuine business reason to justify refusing a holiday request and handle the situation sensitively by trying to reach a compromise with the individual where possible.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

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Get ready for the apprenticeship levy

April 5, 2017 at 9:00 AM

It could be the biggest change to way young people are trained for decades. But how businesses plan to put the upcoming payroll tax to use has yet to be seen.

Get ready for the apprenticeship levy

From 6 April 2017, all UK employers with an annual payroll bill of more than £3 million will have to pay 0.5 per cent of it in the form of an apprenticeship levy - even if they don’t plan to take on an apprentice. Not all companies are ready – according to City & Guilds, around a third of companies liable to pay it were still unaware it existed.

Employers will have an annual allowance of £15,000, which will be offset against the levy. In effect, only employers with a annual payroll of more than £3 million will be liable to pay the levy (because 0.5% of £3 million is £15,000). Employers who are part of a group structure will have one £15,000 allowance to share between the group. The levy will be paid through PAYE each month and any unused allowance can be carried forward to the next month.

The new digital apprenticeship service will distribute the funds raised by the levy for employers to use on apprenticeship training and assessment in England. Separate arrangements for funding apprenticeships apply in Scotland, Wales and Northern Ireland. The Government has published guidance for employers on how the apprenticeship levy and the new funding system will work.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Posted in: Blog

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Holiday pay – the next big case...

April 5, 2017 at 9:00 AM

It is established law that annual leave can be carried over into the following holiday year if the worker is prevented from taking the holiday through sickness. But what if they are prevented from taking leave for other reasons beyond their control?

The European Court of Justice (ECJ) is considering whether to extend the circumstances where employers must allow workers to carry over holiday.

Holiday pay – the next big case

In Sash Window Workshop Ltd and another v King, Mr King was a commission-only salesperson who worked for the window company on a self-employed basis for some 13 years. His annual leave was unpaid. Some years, he took his full annual leave entitlement, but in others, he did not request all of it because, if he was not working, he would not get any pay.

Mr King’s time with the company ended. Among the claims he brought in Tribunal were was one for a series of unlawful deductions from wages for holiday not taken.

The Tribunal accepted that both parties had mistakenly believed that Mr King was self-employed when in fact he was in a worker and as he was unable to exercise the right to take annual leave, he was entitled to carry that leave forward into the next leave year – despite making no request to do so.

The Tribunal saw no difference in principle between being unable to take paid leave through sickness and the circumstances in Mr King’s case. The Employment Appeal Tribunal (EAT) agreed. In theory, sick leave may not be the only situation that might prevent a worker from taking their annual leave and sent the case back to the original Tribunal to consider if Mr King was truly “unable”, for reasons beyond his control, to take annual leave and as a consequence did not exercise his right to it.

This EAT decision was appealed to the Court of Appeal, which referred the case to the ECJ. The question being whether the burden should fall to the employer to assess worker status properly, face possible liabilities when employment ends, or whether it is for the employee to enforce their rights in a court or tribunal at the time, at the risk of job security.

One important point made by was that, as the Working Time Directive is a health and safety measure, and the burden of ensuring compliance should fall on the employer.

The Advocate General indicated that he would deliver his opinion on 8 June.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Posted in: Blog

Tags: ,

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