Rogers & Norton News

Employment Law Bulletin May 2016 Part 1

Thursday, May 5, 2016


Should we stay or should we go?   As the EU referendum draws nearer, the arguments for and against remaining in the Union are intensifying. But there are still calls for clarity on what an exit would mean for us all – individually and collectively.   The influence of Europe is never all that far from UK workplaces. And the world of employment law has been alive with predictions about what would, and wouldn’t, change if Brexit were to succeed.   The latest opinion to have caught our eye comes from Michael Ford QC who was commissioned by the TUC to give his view on the likely effect of our exit on UK employers and workers. It makes for an interesting read.   No doubt there will be plenty more to take in before we head to the polls on 23rd June.

Disciplinary wasn’t Discrimination Wasteney v East London NHS Foundation Trust

Ms Wasteney was a Christian worker employed by the NHS Trust. She was alleged to have ‘groomed’ a junior Muslim colleague by, among other things, praying with her and laying her hands on her.   The colleague said that she had begun to feel ill as a result of Ms Wasteney’s abuse of her managerial position. There was an investigation and Ms Wasteney was given a final written warning (reduced to a first written warning on appeal). Professional boundaries had been blurred. But Ms Wasteney then brought a tribunal claim, alleging discrimination and harassment because of/related to her religion or belief.   Her claim hinged on the reason she was disciplined. If it had been for manifesting a religious belief in consensual interactions with a colleague, then that would have been within her rights, and therefore religious discrimination to discipline her for it. But it wasn’t; she had been disciplined for her unwanted and unwelcome behaviour towards a colleague. That was something different altogether, particularly when taking into account Ms Wasteney’s more senior position.  Her claim failed at the tribunal and at the Employment Appeal Tribunal.   There was also a human rights angle. Had Ms Wasteney’s right to freedom of thought, conscience and religion been breached? No. That right doesn’t give people ‘a complete and unfettered right to discuss or act on [their] religious beliefs at work irrespective of the views of others or [their] employer’, the tribunal said.   So the way in which religion or belief is manifested is all-important to whether disciplinary action is appropriate or not. It’s something that takes a careful analysis.

Incorporation of Company Policies Department for Transport v Sparks

Employers should have a whole host of company policies, on everything from equality to data protection. While they’re expected to be followed, they are not necessarily contractual. And if they’re not contractual, it’s far easier for employers to change them.    In Department for Transport v Sparks, the employer’s attendance management policy, contained in its handbook, said that disciplinary action in respect of cumulative short-term absences could only begin once an employee had hit the trigger point of 21 days off in any 12-month period. The employer tried to introduce a new policy which was less favourable to staff.   Ms Sparks and her colleagues argued that the original policy remained in place because it was contractual and couldn’t be unilaterally varied by the employer.   The Court of Appeal found in the employees’ favour. There was a distinct flavour of contractual interpretation in the way in which the handbook was introduced by the employment documents, the Court held. It was said to set out ‘many of your terms and conditions’. And the handbook chapter on health stated that it set out ‘your terms and conditions of employment relating to sick leave’ and ‘…to the management of poor attendance’.   It was more than good practice guidance.  The policy that Ms Sparks and her colleagues had sought to rely on was, the Court said, apt for incorporation as a contractual term.   As fact-specific as this case is, it raises some universal points about aligning your paperwork with perceptions. Do you know what status your policies hold? Do your employees know? And are your company documents – your contracts, policies and handbook – doing their job properly? If not, it’s time for a review.

Transgender Discrimination

A Totaljobs survey of more than 400 transgender employees from different industries in the UK suggests that inequality is alive and kicking.   Sixty per cent reported they had experienced transphobic discrimination (mainly from colleagues, but also from management and during interview). Thirty six per cent of trans workers have left their jobs because of an unwelcoming environment, and forty three per cent of those surveyed said that when applying for jobs, they actively seek out companies that have trans-friendly policies.   But there are some positives too; just over half of those surveyed said they believe that acceptance and understanding of trans employees has improved in the workplace because of more media focus on trans issues.   You can read the full report here.

There’s clearly still some way to go. Whether you currently employ transgender staff or not, we’d recommend a read through this government guidance on recruitment and retention and handling day-to-day issues.