Wednesday, January 16, 2013

Secularists 3 Christians 1

In 4 conjoined cases the European Court of Human Rights has ruled that 3 British Christians did not have their human rights breached in the workplace but that in the 4th case there had been a breach.

Interestingly the press and media coverage has focused on the case that succeeded much more than the 3 cases that failed.

There were 2 types of case.

Ms Eweida and Mrs Chaplin, a BA employee and an NHS nurse respectively, claimed that they had been discriminated against because of uniform codes which prevented them from wearing crosses at work.

Ms Ladele, a registrar of births marriages and deaths, and Mr McFarlane, a relationship counsellor claimed that they had been discriminated against at work because there had been adverse consequences as a result of their religious objections to providing their services to gay couples.

All of their Claims had (ultimately) failed in the domestic courts under the UK's laws against religious discrimination and they therefore took their cases to Europe.

The European Court decided that it was not possible to say that there was no breach of the right to freedom of religion simply because someone could avoid the problem by changing job. This was simply a factor to be weighed in the balance in deciding whether the interference with the right was proportionate.

Ms Eweida's case succeeded. The Court found that a fair balance had not been struck between the importance of her right to exercise her religion and BA's legitimate wish to project a particular corporate image. The cross was discreet and would not have detracted from her professional appearance. Hijabs and turbans were allowed without this having caused a problem. In addition the fact that BA had been able to change the uniform code to accommodate her showed that it could not have been that important in the first place.

Ms Chaplin failed. The NHS in her case justified the ban on her wearing a cross on a chain on the basis that dangling jewellery was not allowed due to the health and safety implications. The European Court decided that health and safety was a concern of greater magnitude than any of the issues raised by BA and that the NHS and the domestic courts were in the best position to rule on this. There had therefore been no breach of the Claimant's human rights.

Ms Ladele's case also failed. The EHCR said that differences in treatment based on sexual orientation required particularly serious reasons by way of justification and as such the employer's aims of providing a full service to all members of the community was a legitimate one. The requirement that Ms Ladele provide her services to everyone was proportionate given that the local authority was also required to protect the rights of homosexuals to equal treatment.

In Mr McFarlane's case he had chosen to voluntarily enrol on a post-graduate training programme with Relate in circumstances where he must have known he would be expected to counsel gay people about their sexual relationships as well as heterosexuals. Weighing this in the balance with the fact that the employer's actions were intended to prevent discrimination against others who had rights to be protected under the Convention the action taken against him was proportionate and there was no breach of his human rights.

The cases strongly suggest that someone who suffers adverse consequences because of objections to homosexuality is unlikely to be able to demonstrate that this is a breach of their human rights. With regards to the issue of wearing religious symbols in the workplace, the position is less clear cut but the decision would tend to suggest that there will need to be cogent reasons for denying someone the right to wear a discreet (whatever that means) symbol of their faith in the workplace.

The outcome will not end the controversy and is neither a victory for secularists or for Christians. It leaves plenty of scope for argument in the domestic courts about the implications but certainly employers who have dress codes which would prevent the display of religious symbols may need to reconsider them in the light of this ruling.

Ms Eweida was awarded £32,000 although this was predominantly costs and only £2000 for hurt feelings. Interestingly she had complied with the dress code, wearing her cross under her uniform, from 2004 until May 2006, when it suddenly appears to have become important for her to wear it openly. It is also worth noting that she insisted on turning up for work wearing it rather than awaiting the outcome of her grievance about the dress code and then went home and remained off work unpaid despite being offered a non-customer facing role on her normal pay. BA changed its dress code in 2007 to allow the cross to be worn. As such one does rather wonder why the case needed to be pursued this far.    

Friday, January 11, 2013

Not Never On A Sunday

Whilst Christian groups were hoping for a definitive ruling that compulsory Sunday working is religious discrimination and others were keeping their fingers crossed for precisely the opposite result, the Employment Appeal Tribunal has (with respect) quite rightly limited itself to deciding the case in front of it.

The EAT went out of its way (after quoting from the 4th Commandment in the book of Exodus) to stress that this was the limit of its finding. Press reports that Christians can be forced to work on Sundays as a result of this ruling are therefore wide of the mark but fairly typical of the standard of analysis and reporting in this field.

Ms Mba is a Christian. She worked for Merton Council as a care worker in a Children's Home. She took the view that her religion required her not to do any paid work on a Sunday. The Home needed staffing around the clock 7 days a week.

The Claimant thought that Merton had promised that she would not have to work Sundays. The Employment Tribunal found that in fact they had not done so but had simply said that it was likely to be possible that she would be rota'd so as to avoid this.

In fact it did not prove possible to ensure that she was not required to work on Sundays. She raised a grievance and this was rejected. She continued to refuse to work on Sundays and was disciplined as a result. Ultimately at the end of May 2010 she resigned and brought a claim for religious discrimination.

Her argument was that this was indirect discrimination because the requirement to work Sundays put Christians at a particular disadvantage as compared to non-Christians.

The central battleground at the Employment Tribunal was whether Merton had shown that the requirement to work on Sundays was a proportionate means of meeting a legitimate aim.

The ET concluded that it was. There was a need to ensure that there was an appropriate gender mix of staff at all times. Exempting the Claimant from Sundays would limit flexibility and impact on other staff. It might mean agency staff had to cover, with the effect that continuity for very vulnerable children would be hindered.

One factor which the ET thought important was that only some Christians considered that not working at all on Sunday was a requirement of their religion. As such the disadvantage to Christians was less than might otherwise have been the case. They also took into account that Merton had offered to arrange matters so that Ms Mba could still attend Sunday worship.

Ms Mba appealed. She alleged that by taking into account that not all Christians refuse to work on a Sunday the Tribunal had incorrectly made a value judgement about her religious beliefs rather than assessing the disadvantage to her on the assumption that this was part of her belief system. She also alleged that there was a higher burden of justification on the employer than the Tribunal had imposed and that there was much more that Merton could have done to accommodate her.

The EAT rejected her appeal. While it agreed that the Tribunal was not there to make value judgements about someone's beliefs, it was legitimate in deciding on the proportionality of the disadvantage to the affected group to take into account that not working on a Sunday was not a "core" Christian belief. Similarly whilst it accepted that the onus was on the Council to justify its policy and not on the Claimant to show that it was disproportionate, the Tribunal had been entitled to find that the Council had met that burden.

Whilst this is certainly not a case of the Courts upholding the persecution of Christians it would be unwise for employers to assume that this gives them carte blanche to impose Sunday working. In this case there were clearly factors justifying a requirement that all staff do their share of Sunday working. These factors might not apply in, for example, a supermarket where continuity of service to an individual service user will not arise.

Wednesday, January 02, 2013

Peter Stringfellow Does NOT Employ Lapdancers - Official

The Court of Appeal has ruled that the Employment Appeal Tribunal had been wrong to overturn an Employment Tribunal Judgment that a lap dancer at Stringfellows was not an employee.

Ms Quashie performed at Stringfellows and "Angels" which are two clubs operated by Stringfellows Restaurants Limited. In December 2008 she was told she could no longer do so (after about 18 months) because of allegations that she had been involved with drugs on the premises.

She claimed Unfair Dismissal in the Employment Tribunal which she could only do if she was an employee. (Given the change in the law about qualifying periods of employment her Claim would have failed anyway now because she had less than 2 years' service, but this did not of course apply at the time.) Stringfellows denied that she was employed.

The Employment Tribunal decided that she was not an employee and her Claim therefore failed.

The arrangement was that the "customers" had to pay her using vouchers called "Heavenly Money" which they bought from the club. The dancer subsequently cashed these in and certain amounts were deducted to cover commission and other expenses owed to the club. The net effect of this could be that the dancer had to pay the club if she had not done enough dances in any particular period. The dancers provide their own outfits although the club recommended a preferred supplier.

If the dancer did not work certain days then they would be "suspended" for the following week. She had to notify them if she was taking holiday. There was no express rule against working elsewhere although the Claimant gave evidence that she believed the management would not have been happy about it.

The basis for the Tribunal's decision was that there was no "mutuality of obligation" - no obligation to provide wages on the one hand and to do work on the other. The club was not in fact obliged to pay the Claimant anything - it was the customers who were paying her. The Claimant did not always have to work and although she had to notify the club if she was taking holiday she did not need permission to take it.

As such one of the essential elements of a contract of employment was missing.

The EAT held that this was wrong. It held that there had been mutuality of obligation and that the club was clearly obliged to pay wages, regardless of what the source of the funds was. There was an "umbrella" contract covering the periods between rotas.

The Court of Appeal found that the EAT had not been entitled to hold that the Tribunal's decision was perverse or an error of law (which are the only grounds upon which the EAT can allow an appeal from the Employment Tribunal), and reinstated the original decision dismissing the Claim.  In essence rather than the club paying the dancer she paid them for the opportunity to earn money by dancing. The fact that she "took the economic risk" was "a very powerful pointer" against this being a contract of employment. Further strong pointers were the absence of any entitlement to sick pay or holiday pay and that the Claimant was responsible for paying her own tax.

Employment status is frequently a difficult issue to determine in unfair dismissal cases and the label which the parties attach to the relationship is not conclusive - the Tribunal has to look at the reality of the situation. If in doubt it is best to seek specialist advice, whether you are employee (or not as the case may be) or employer.