Employment Briefing - June 2015

Published byMartin Stephen

8th June 2015

Welcome to June's Employment Briefing.

In this month's edition, we look at the topical issue of what happens when a shop refuses to serve a gay customer - is this discrimination on grounds of sexual orientation?

We highlight the absolute requirement to go through the ACAS conciliation procedure before bringing an Employment Tribunal claim, and highlight the special issues relating to employing students and others on summer placement schemes.

We've also rounded up some other significant employment cases and summarised them for you. This month look at cases concerning the proper conduct of disciplinary proceedings, and how the Tribunal should assess requests for anonymity.

As ever, if you have any questions or points for discussion, please get in touch.  You can contact Martin Stephen on mss@wjm.co.uk.

“Gay Cake” 

The County Court for Northern Ireland has held that a gay customer's rights to access goods and services is more protected than the service provider's religious belief, following judgement in the Ashers Bakery case.
 
The issue arose after a gay customer placed an order for a cake with an image and slogan in support of gay marriage.  After initially accepting the order, the manager of the Bakery cancelled it, indicating that the order could not be fulfilled as they were a Christian business, leaving the customer bewildered. 

Although the bakery contended that it was not discriminating against the customer because of their sexuality but because of the message on the cake, the customer successfully argued that Ashers Bakery should not be permitted to refuse service on the grounds of sexual orientation. 

Judge  Brownlie found that the two directors of the bakery, in their failure to provide goods and services to an individual on the grounds of their sexual orientation, were in breach of regulation 5 of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998.  They were found to have  directly  discriminated against the customers  for which there could be no justification. This is a timely reminder of the need for caution when deciding whether or not to provide goods and services or to employ someone when the reason for not doing so could fall foul of the Equality Act. 

ACAS Issues 

The EAT has held that an employment tribunal cannot hear a claim if the ACAS early conciliation requirements have not been met.  

Sections 18A and 18B of the Employment Tribunals Act 1996 make it mandatory for potential claimants to contact and give details of their proposed employment tribunal to ACAS before commencing proceedings. ACAS, in turn, offer the parties the opportunity to engage in conciliation with a conciliation officer for a specified period before a claim can be submitted to the Tribunal.  

In the recent case of Cranwell v Cullen, the Claimant put in a claim to an employment tribunal without previously complying with the requirement to supply prescribed information to ACAS.  No statutory exemption from this requirement applied on the facts of the case, therefore the Employment Judge rejected the claim. 

In a decision a week later, the EAT held that an Employment Ttribunal could also reject a claim submitted out of time due to the Claimant entering the wrong Early Conciliation number. 

In the case of Sterling v United Learning Trust the employee submitted an ET1 form with an incomplete EC number, which was returned.  By the time it was re-submitted, the deadline had passed. 

Rule 10(1)(c)(i) obliges the Employment Tribunal to reject a claim if the EC number is missing, although a party may apply for a reconsideration of such a rejection. The employee’s representative failed to apply for reconsideration and to argue that it was not reasonably practicable for the employee to have lodged the claim in time. The EAT made it clear that there was a duty on the employee to ensure that the EC number was cited correctly. 

Suspending Disciplinary Hearings 

Contrary to conventional wisdom, an employer is not always obliged to put a disciplinary process on hold whilst the employee's grievance is dealt with, according to the EAT decision in Jinadu v Docklands Buses. 

This case confirms the default position, which is that a dismissal is not unfair if an employer does not postpone disciplinary proceedings where a grievance has been raised.  Instead each outcome will depend on the facts of the case.  These facts may take into account the grievance(s) raised and how they relate to the disciplinary proceedings in question.

In the case of Jinadu v Docklands Buses, a bus driver was subject to disciplinary proceedings as a result of her poor driving.  The employee made allegations about certain managers in the midst of these disciplinary proceedings, but the employer continued with the proceedings and dismissed her.  The Employment Tribunal found that her dismissal was fair. 

On appeal the EAT rejected the point that the dismissal was unfair because the employer had not put the disciplinary procedure on hold until the employee's allegations had been dealt with as a grievance. A note of caution, however, this case does not mean that employers can always proceed with disciplinary action where a grievance is outstanding. Each case will turn on its particular circumstances. 

Anonymity Orders 

In determining whether to make an anonymity order, the employment tribunal must carry out a balancing exercise among Articles 6, 8 and 10 of the European Convention on Human Rights. 

In a judgement handed down earlier this month, the EAT held that the risk of the public believing unfounded allegations is not a valid reason for anonymising an Employment Tribunal's judgment. 

In the case of BBC v Roden, allegations of sexual assault had been made and it would have been necessary to consider them as part of the evidence.  This led the Employment Judge to order that the employee's identity be anonymised throughout the hearing and again, permanently, upon promulgation of the judgment. 

On appeal, however, it was found that the employment tribunal had erred in not carrying out the balancing exercise.  Instead, the tribunal had focussed solely on the risk of the public misunderstanding and any consequences that might have had on the employee.  It is assumed that the public can be trusted to distinguish between an allegation and a finding of guilt.

Summer Placements

It is around this time of year that employers take on students or would be students for summer placements.  What then is the status of the student? 

A work placement is unlikely to give rise to a contract of employment for a number of reasons.  Firstly, there is unlikely to be any mutuality of obligation between the parties.  By that, what is meant is that the employer is not under any obligation to provide work and if offered work the person on placement is not obliged to do it.  That of itself would dictate against the existence of a contract of employment.  Secondly, where the purpose of the arrangement is training and education rather than work, that would normally indicate that there is no contract of employment. 

That said, if being paid, the person on placement is likely to be a worker in terms of which he or she is entitled to the statutory minimum wage and holiday pay. 

The placement is likely to be for a fixed term.  This would normally engage the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 which require that fixed term employees no less favourably than permanent employees. This would involve having to pay the benefits paid to full-time employees.  These Regulations however only apply to employees, so if the person  on placement is a worker and not an employee, they will not apply. 

Employers often take on volunteers or interns.  The safest way to do so is on an unpaid basis.  Complications can arise where expenses are reimbursed and care should be taken to make sure that only properly incurred expenses are reimbursed to avoid straying into the argument that the volunteer or intern is receiving remuneration and therefore  an employee or a worker.  

Whatever the intended status of the person on placement, it should be properly documented to minimise the risk of confusion and claims from would be employees or workers.