Wednesday, October 10, 2018

It's OK Not to Bake a Gay Cake - Supreme Court

In an eagerly-awaited Judgment today the Supreme Court has confirmed that a bakery in Northern Ireland did not discriminate on when they refused to accept an order to make a cake bearing a slogan supportive of gay marriage.

This is the so-called "Gay Cake" case.

Mr and Mrs McArthur are Christians. They run a chain of cake shops in Northern Ireland. Mr Lee is gay. He asked the bakery to provide him with a cake showing a picture of Sesame Street characters Bert and Ernie (who, ironically, have recently been the subject of debate over their sexuality, with the "official" pronouncement being that they do not have one) and headed "Support Gay Marriage."

As the McArthurs had a religious objection to gay marriage they refused to provide a cake containing a message with which they disagreed.

Mr Lee sued the bakery for unlawful discrimination on grounds of sexual orientation.

He succeeded at first instance and at the Court of Appeal.

The bakery appealed again to the Supreme Court, the highest court in the land.

The Supreme Court unanimously upheld the appeal. They found that Mr Lee was not refused the service because of either his actual or perceived sexual orientation but because of the bakery's objection to the message on the cake. The bakery had apparently fulfilled orders for Mr Lee in the past and also employed gay people so it was not his sexuality per se with which they had an issue.   

This was a case of direct discrimination, so the Claimant had to prove that it was his sexual orientation which was the cause of the discrimination. The outcome might conceivably have been different if the case could have been pursued as an indirect discrimination claim (where the bakery imposed a requirement which was more difficult for a gay person to comply with) or as a protected characteristic "related" discrimination.

The Court also found that the rights to freedom of religion and expression include the right not to be compelled to manifest a belief which one does not hold.

This was a very difficult case. Many of the cases on religious and sexual orientation discrimination revolve around the issue of whether the freedom to express your sexuality "trumps" the right to express disapproval of same sex relationships on religious grounds, or vice versa. This particular case also raises the very thorny issue as to whether Mr Lee's freedom of expression takes precedence over the bakers'. While it could be argued that Mr Lee could always take his business elsewhere, what if he lived in a conservative community where every baker took the same view? And is baking a cake for someone endorsing the views on it? On the other hand, whilst gay marriage is generally supported by the majority of society today, what if it had been a "Nazi cake"? 

Thursday, August 30, 2018

I Just Can't Switch Off!

The BBC reports today on a study by the University of the West of England which suggests that commuters so regularly use travel time for work emails that it should be classed as working time.

54% of commuters who were using wi-fi on the train journeys examined were sending work emails.

Modern technology and the ability to work remotely has blurred the boundaries as to what constitutes being at work.

There are a host of legal issues which could arise from this.

By law workers cannot generally be required to work more than 48 hours per week unless they have signed a waiver of their rights in this regard. If time spent dealing with work emails is counted as working time this could lead to breaches of this legislation.

The National Minimum Wage is calculated by reference to hourly rates, and if this time is included it could mean workers are being underpaid if it has not been taken into account when working out their pay.

If workers are expected to deal with work emails whilst on holiday, this could call into question whether this can properly be treated as holiday (which is technically a health and safety requirement) so as to satisfy the rules around minimum periods of annual leave.

Someone who is never able to "switch off" might also in certain circumstances have grounds for a work-related stress claim if it led to burnout.

A requirement to be "on call" 24 hours a day to deal with work emails could also give rise to indirect discrimination claims from people who have family or caring responsibilities outside of work if such a practice has a detrimental effect on their ability to fulfill those responsibilities or otherwise damages a satisfactory work/life balance.

There are also potential confidentiality and data protection implications around the use of technology on the move. More than one lawyer has been fined by the Information Commissioner for losing portable electronic equipment containing sensitive confidential information and a mental health doctor got into serious disciplinary hot water when she was allegedly overheard loudly discussing confidential case details on the telephone one the train.

Quite apart from the legal aspects of the situation, employers will want to reflect upon the impact that having no "down time" will have on employees' job satisfaction, energy levels and productivity. 

Wednesday, March 14, 2018

Why Didn't You Tell Us?

The Supreme Court has held that an Employment Tribunal was correct to find that a Head Teacher could be fairly dismissed for failing to disclose to her employer the fact that she had a close relationship with a sex offender.

Ms Reilly was Head at a primary school in Sandwell. She had a close but non-sexual relationship with a Mr Selwood. They owned a house together. Mr Selwood lived there and  Ms Reilly slept there some nights, but they did not live together.

Mr Selwood was convicted of possessing child pornography, with images ranging from level 1 to level 4 on the scale of seriouness.

Ms Reilly did not inform her employer of the conviction. She stated that she had canvassed opinion from a range of professionals as to whether she was obliged to do so and that she had been informed that she did not have to, although there was a factual dispute as to the accuracy of what she said in this respect.

Sandwell Council learnt of Mr Selwood's conviction and Ms Reilly's close relationship with him and she was dismissed for gross misconduct due to her failure to disclose the relationship.

She brought a claim for Unfair Dismissal. Whilst this was upheld on technical grounds, it was found that there was a 90% chance of a fair dismissal and that she 100% contributed to her own dismissal. She therefore received no compensation and the finding effectively meant that in substance the dismissal was fair. 

She unsuccessfully appealed to the Employment Appeal Tribunal and from there to the Court of Appeal.

Her last chance was an appeal to the Supreme Court.

Giving the leading Judgment, Lord Wilson firstly reminded himself that the Supreme Court only hears appeals on points of law and the decision on the facts is one for the initial Tribunal. He then further reminded himself that in the case of dismissal for misconduct the "Burchell Test" applies - in other words the employer must have a genuine belief in guilt based on reasonable grounds and the procedure and the decision to dismiss must be "within the range of reasonable responses." In other words, the employer must simply have acted reasonably and not necessarily in the same way that the Court would have done.

He found that the test was clearly satisfied. The Council were reasonably entitled to take the view that the relationship engaged their safeguarding responsibilities and should have been disclosed to them. The allegations against Mr Selwood were serious. The fact that Ms Reilly still did not accept that her failure to disclose was wrong was reasonably treated as a relevant factor. It was potentially of relevance to consider that in certain circumstances it is not legally permitted for someone to work with children if they are living in the same household as someone who is disqualified for doing so.

The irony was that if the relationship had been disclosed it is highly unlikely that she would have been dismissed (or if she had been that this would have been a fair dismissal.) The most likely outcome would have been that measures would have been put in place to protect children (for example requiring her to ensure that he did not enter school premises or have access to information about pupils.)

Lady Hale in her Judgment commented that the case might have provided an opportunity to hear argument as to whether conduct which is not a breach of contract can justify a fair dismissal. As this has not been argued however, she did not express any view on this. It must however be highly likely that there are circumstances where it could.

Wednesday, November 01, 2017

Bus Company Owner Drives Off Into the Sunset

The Daily Mail reports that the owner of a bus company in Somerset has unceremoniously dismissed the entire workforce through an internal message.

Sydney Hardy allegedly told the staff of Nippy Bus that he had had enough, he could not work with the employees a minute longer, and they should regard themselves as being dismissed with immediate effect.

Understandably the employees were rather miffed at this development.

Expect Tribunal Claims to follow! Whilst redundancy is a potentially fair reason for dismissal, an Employment Tribunal will usually expect to see evidence of proper consultation and warning to the employees that they are at risk of redundancy, a fair selection process being carried out and proper consideration being given to alternatives such as redeployment.

Where an employer contemplates making at least 20 employees within a 90 day period there is a requirement for a minimum of 30 days' consultation and where 100 or more are affected the minimum period is 45 days. In these circumstances there are also quite complicated rules about the involvement and/or selection of representatives from the workforce for the purposes of consultation.

Get this wrong and in addition to any individual claims for Unfair Dismissal then each affected employee is potentially entitled to a "protective award" of 1 week's pay for each week of the period for which consultation is required, with no cap on the amount of the week's pay for these purposes.

If the employer is a large one then any mistake could be an expensive one, especially as the starting point is for Tribunals to award the maximum protective award unless the employer can show a good reason otherwise.

Consultation is supposed to take place when proposals are at a formative stage. Barring a completely unexpected emergency therefore, employees should not normally find themselves being made redundant "out of the blue."

Employers are strongly advised to take proper advice if they consider that they may have to shut the doors. 




Thursday, July 27, 2017

Goodbye to Employment Tribunal Fees - For Now At Least

In a Judgment which has taken many people by surprise the Supreme Court has ruled that the Fees Order which introduced Employment Tribunal Fees in 2013 is unlawful.

A summary of the Supreme Court's decision is here but in essence the Fees were found to be unlawful because they were an unjustified interference in the right of access to justice, were in breach of EU law and were indirectly discriminatory against women.

The number of Employment Tribunal Claims has dropped by 79% since the introduction of fees. To bring a money claim to a full hearing involved potential Fees of £390 (even if the amount at stake was less than this) and to bring more substantial cases such as Unfair Dismissal or Discrimination involved fees of up to £1200.

As a result of the Judgment the Government will have to refund all of the Fees paid, some £32 million or so. This will not be straightforward, not least as winning Claimants will in many cases have recovered the Fees from their employers, who will no doubt now want that money back.

The Judgment is good news for Claimants but obviously is potentially less good news for Respondents. It removes a disincentive to claiming, which is likely to result in more Tribunal Claims being lodged, although whether there will now be a 79% increase must be somewhat doubtful.

Employers would do well therefore to ensure that they have proper advice as to their legal obligations and how to handle sticky situations with a view to avoiding ending up in the Tribunal in the first place.

Where Claims are brought as a "try on" by Claimants who think that without Fees they can have a "free hit" there are steps which can be taken to try and put the Respondent back on the front foot, such as applying for strike out, giving Costs Warnings and applying for Deposit Orders.

This may well not be the end of Tribunal Fees. The Government might try and reintroduce an amended scheme (presumably with lower fees) but given the complicated Parliamentary arithmetic following the General Election it remains to be seen whether fresh legislation would be passed.