Employment Notepad. Discrimination: Don t trip up! June 2015 LAYTONS

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1 Employment Notepad June 2015 Discrimination: Don t trip up! Religious dress and discrimination attempts to avoid tripping hazard not discriminatory (Working) Time Travel - does travel to first job (and from last job ) count as working time for peripatetic workers? Strike Action- how much pay can an employer withhold? National Minimum Wage new hourly rates announced

2 1. Religious dress and discrimination attempts to avoid tripping hazard not discriminatory. The conflict between religious attire and employers dress codes has proved a fertile area of case law and the Courts are frequently asked to consider whether a ban or restriction on an item of religious dress is discriminatory. In the recent case of Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery, the EAT considered whether the request by a nursery school that Ms Begum wear a shorter garment than the long jilbab she wore for her interview was discriminatory. To recap briefly on the relevant law, indirect discrimination arises where an employer applies a provision, criterion or practice ( PCP ) and that places the complainant with a particular protected characteristic at a disadvantage. A defence to an indirect discrimination claim applies where the PCP in question is a proportionate means of achieving a legitimate aim. For religious reasons, Ms Begum wore a full-length jilbab, a garment that typically covers the neck to the ankles (but may be worn to varying lengths). Having been offered the position of Nursery Assistant, she was subsequently asked if she would consider wearing a shorter jilbab. Her argument was that the nursery operated a policy against ankle-length jilbabs and this PCP was indirectly discriminatory against Muslim women. The nursery denied asking Ms Begum not to wear a jilbab indeed it had another employee who wore a jilbab - but it did admit asking her to wear a jilbab of an appropriate length on the basis that the clothes worn by any member of staff should not present a tripping hazard. The nursery s case was that the PCP of prohibiting garments that might constitute a tripping hazard applied to all staff and, as such, it did not place Muslim women at a particular disadvantage. Furthermore, even if it did place Muslim women at a disadvantage, the PCP could be justified as a proportionate means of achieving a legitimate aim. The Tribunal dismissed Ms Begum s claims and found that at no point had she been told she could not wear a jilbab. The only requirement was that garments were not a tripping hazard and the Tribunal found this requirement was not a PCP that indirectly discriminated against Muslim women (and even if it was, it was justified on the grounds of health and safety). Ms Begum appealed to the EAT on the grounds the decision was perverse. In rejecting her appeal, the EAT found the Tribunal was entitled to reach the conclusions it reached and there was nothing perverse about its decision. 2

3 2. (Working) Time Travel - does travel to first job (and from last job ) count as working time for peripatetic workers? It is important for employers to know what counts as working time because obligations to provide minimum holiday entitlement, rest breaks and salary are all calculated by reference to it. The Working Time Directive 2003 Article 2(1), defines working time as any period during which: the worker is working; at the employer s disposal; and carrying out activities or duties. Whilst the Directive does not apply directly to most UK employees, the Working Time Regulations 1998 implement the Directive. As a result, any decisions relating to the Directive and its interpretation may be relevant. In a recent Spanish case, Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security, the following question arose: whether the time spent by security systems technicians with no fixed or habitual place of work (i.e. peripatetic) travelling from their home to the first customer of the day and back from the last customer was working time. The Spanish Courts referred the matter to the CJEU and the Advocate General has given his initial opinion. He confirmed his view that travel to and from customers at the start and end of the day respectively should count as working time because: travelling is an integral part of being a peripatetic worker; it is necessary for the worker to travel to the customers designated by their employer; workers are subject to the instruction and organisational power of their employer when travelling to and from customers and are not outside of their employer s management control; and there is no need to differentiate between, on the one hand, journeys from the workers homes to a customer, and, on the other hand, journeys workers make between customers (which it was not disputed formed part of working time). Although not binding on the CJEU, the Advocate General s opinion is usually followed. 3

4 3. Strike Action- how much pay can an employer withhold? When employees go on strike their employer can withhold their pay. But how much pay can be withheld? This question was recently considered by the Court of Appeal in Hartley v King Edward VI College. This case involved three teachers who brought claims after their employer deducted 1/260ths for a day s strike action. The employees said this was too much and that only 1/365th should have been deducted. The employees claimed the Apportionment Act 1870 ( the Act ) applied to their employment and that this imposed the principle of equal daily accrual. As such, their pay should be treated as accruing by equal amounts each day. Whilst the Court of Appeal acknowledged that the Act applies to all employment contracts (and that section 2 provides that pay accrues daily), the Act does not specify that pay accrues at an even rate. The Court of Appeal held that the correct calculation would depend on the terms of the employees contract and in this case it was clear the contract did not envisage pay would accrue by equal amounts per day. 4. National Minimum Wage new hourly rates announced And the following increases will apply from 1 October 2015: for workers who are aged 21 or over from 6.50 to 6.70; for workers who are aged 18 or over (but not yet aged 21) from 5.13 to 5.30; for workers who are under the age of 18 from 3.79 to 3.87; the apprenticeship rate from 2.73 to 3.30 per hour; and the accommodation amount which is applicable where any employer provides a worker with living accommodation from 5.08 to 5.35 for each day that accommodation is provided. 4

5 Return to Contents Our Employment Law Offering Laytons specialist employment lawyers combine in-depth knowledge with the complementary skills of the firm s dispute resolution, commercial, intellectual property, pensions and tax lawyers to support you in all aspects of employment related matters. Looking after your day-to-day needs We understand that the effective management of employment issues can be crucial. We build long term relationships in order to understand what is important to you and how you wish to work. Working with you in this way means you are provided with a proactive legal service which is based on technical excellence, while remaining creative, effective and sensitive to the needs of the relevant matter. So our legal service truly adds value. Clients Our employment lawyers serve a broad range of clients, including international corporations, businesses of all sizes, charitable organisations and individuals. Your Problems Solved Our philosophy is to avoid problems rather than merely resolve them. You benefit from legal advice combined with wider practical awareness so that we provide solutions, not just information. Planning for the Future Employment Law is regularly dictated by Europe and both legislative changes and case law developments are frequent and wide-ranging. The Group provides you with information, employment documentation and advice which is designed to help you prepare for these changes. Delivering Results Work we typically carry out for clients includes: Documentation Dispute resolution Termination Boardroom Disputes Discrimination Enforcement Work permits, executive immigration Training, reports and publications This Notepad is offered on the basis that it is a general guide only and not a substitute for legal advice. Laytons cannot accept any responsibility for any liabilities of any kind incurred in reliance on this Notepad. If you wish to copy this Notepad please do so, but please acknowledge its source. For further advice or more information, please contact your client partner or one of the team at the addresses set out below. London James Davies james.davies@laytons.com 2 More London Riverside London SE1 2AP +44 (0) london@laytons.com Manchester Stephen Robinson stephen.robinson@laytons.com 22 St. John Street Manchester M3 4EB +44 (0) manchester@laytons.com Guildford Stephen Cates stephen.cates@laytons.com Tempus Court, Onslow Street Guildford GU1 4SS +44 (0) guildford@laytons.com v FINAL Laytons Solicitors LLP which is authorised and regulated by the Solicitors Regulation Authority (SRA Nº ) A list of members is available for inspection at the above office.