Rogers & Norton News

Employment Law Bulletin June 2016 Part 1

Wednesday, June 8, 2016

Welcome

The wait is almost over.   On June 10th, Euro 2016 kicks off. Patriotism will be the name of the game as four weeks of high intensity football stand to dominate our screens and our conversations. Employers, be prepared.   Be prepared for national rivalries, last-minute holiday requests, staff absences, and the general distraction that epic sporting events like this bring with them. Plan ahead; lay down the rules on what you expect of your workers, and what will happen if they don’t play ball. Remind them of your policies. And if you’re unsure about whether or not these policies hit the mark, it’s time for a review.   But being prepared doesn’t just mean shaping up to deal with the negatives. It’s also about getting into the spirit. Sport is known for bringing people together. And the Euros presents great opportunities for strengthening morale and loyalty by playing the fun employer (within reason, of course!).    

Injury to Feelings Compensation for Breach of WTR?
Gomes v Higher Level Care

Ms Gomes won her claim for compensation for her employer’s breach of the Working Time Regulations (WTR). She hadn’t been provided with the necessary rest breaks. But did that also entitle her to damages for injury to feelings, usually claimed in discrimination cases?   No, said the Employment Appeal Tribunal. Injury to feelings compensation isn’t available in cases like this. Where there is an element of discrimination involved in a failure to allow rest breaks then, yes, injury to feelings may become relevant. But otherwise, it doesn’t apply.   Note, though, that if an employee’s health had gone downhill as a consequence of their employer’s WTR breach, that could be the basis of a compensation claim (damage to health, as opposed to injury to feelings).    

An Unstable Picture for Young, Pregnant Women

Research by the Equality and Human Rights Commission has shown that pregnancy and maternity discrimination is affecting younger mothers more than others. Six times as many women under 25 than average reported having been dismissed after telling their employers they were pregnant.   This group of workers is said to have a lower level of awareness of their rights, and are in less stable employment situations. They lack confidence in talking to managers about their worries, and feel under pressure to resign rather than raise issues.   Caroline Waters, Deputy Chair of the Equality and Human Rights Commission is reported as saying, “We cannot continue to allow these young women to be unfairly held back in the starting blocks of their working lives when they could have the potential to achieve greatness.”   The Commission’s new digital campaign around this (called #PowertotheBump) has been designed to boost the knowledge and confidence of young expectant and new mothers. And there’s a strong message for employers here, too: pregnancy and maternity discrimination is real and it’s damaging.    

Dismissal for Failure to Break Up was Discriminatory
Pendleton v Derbyshire County Council and Another

Ms Pendleton was a teacher, married to the headteacher of another school. She had an exemplary record of service.    Her husband was convicted of making indecent images of children and voyeurism. Ms Pendleton decided that, although she didn’t condone what her husband had done, she wouldn’t leave him; she was a practising Anglican Christian and her marriage vows were important to her. She was eventually dismissed for having ‘…chosen to maintain a relationship with [her] partner who has been convicted of making indecent images of children and voyeurism.’ This contravened the ethos of the school.   She won her unfair dismissal claim because of various failings. But the tribunal dismissed her claim for indirect religion or belief discrimination. While it found that she had a genuine belief that her marriage vow was sacrosanct, and the school had applied a provision, criterion or practice (PCP) (dismissing those who chose not to end a relationship in these circumstances), it held that no particular disadvantage had been shown. She would have been dismissed even if she hadn’t held that religious belief.   Ms Pendleton appealed and won; there had been indirect discrimination, said the Employment Appeal Tribunal. The tribunal had found that Ms Pendleton had this religious belief in the sanctity of marriage. The PCP that the school applied was intrinsically liable to disadvantage a group that shared that belief, and it had subjected her to a disadvantage. Her belief in the sanctity of marriage vows placed her under an additional burden to those who might have been in the same situation but who didn’t hold that belief. That was a particular disadvantage, given the ‘crisis of conscience’ that she faced.