Employment Law Bulletin: July

• Manifestation of Religion or Belief
• Discrimination
• Abandonment of Sunset Clause
• Employment (Allocation of Tips) Act 2023
• Family Legislation

Welcome to July's Employment news briefing, providing a summary of some of the recent employment judgements and updates.

If you have any questions about any of the topics covered, or would like to discuss anything with our Employment team, please call Martin Stephen on 0141 248 3434 or email mss@wjm.co.uk

 

 

 

 

Manifestation of Religion or Belief

In discrimination claims based on religion of belief, does a tribunal have to decide whether an employer’s action were motivated only by the objectionable manifestation of a religion or belief, rather than the belief itself.

In the case of Higgs v Farmor’s School, the Employment Appeal Tribunal held that the answer to this question was yes.

In this case the claimant was an administrator in the school who was dismissed after social media post relating to religion, education and relationships led to complaints that she had prejudiced views. Her claim for direct discrimination and harassment in relation to religion or belief was dismissed by the Tribunal. On appeal the Employment Appeal Tribunal overturned the decision and remitted the case back to the Tribunal to make further findings.

The judgement of the Tribunal did not show that it had considered whether the school’s actions were proportionate as an interference with the claimant’s right to freedom of religion or that the Tribunal had carried out the necessary balancing exercise between the interference with that right and the school’s objectives in taking action. It was not enough for the Tribunal to find that the school was motivated by concern that the claimant could be perceived to hold “wholly unacceptable views”. The Tribunal needed to consider whether the school’s motivation had arisen out of the claimant’s manifestation of belief (protected under the Equality Act 2010).

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Discrimination

Can a Tribunal look behind a decision-maker’s motivation in cases of discrimination to take account of other employees whom may have indirectly been involved?

In the case of Alcedo Orange Ltd v Herridge-Gunn the claimant was dismissed after informing her employer that she was pregnant. In making the decision the dismissing officer relied on information provided by the employee’s manager.

In making its decision the Tribunal found that the manager had been motivated by the claimant’s pregnancy in the way in which she had presented the information to the dismissing officer, who had then relied on this to dismiss.

The Employment Appeal Tribunal applied the reasoning to the case of Reynolds v CLFIS (UK) Limited. That is that the Tribunal should be considering the motivation of only the person who makes the dismissal decision rather than any employees who are indirectly involved.

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Abandonment of Sunset Clause

The UK Government has announced the sunset clause in the Retained EU Law (Revocation and Reform) Bill is being abandoned. This means that the automatic revocation of EU legislation will not now happen. Only EU legislation which is expressly repealed will disappear. At the moment only three relatively obscure pieces of EU employment legislation will be repealed by 31 December 2023. These are the Community Driver’s Hours and Working Time (Road Tankers) (Temporary Exception) (Amendment) Regulations 2006, the Posted Workers (Enforcement of Employment Rights) Regulations 2016 and the Posted Workers (Agency Workers) Regulations 2020.

In addition, the Government is proposing to change to the Working Time Regulations and TUPE. Proposals include merging the standard EU holiday allowance of 20 days with the UK additional 8 day holiday to provide one annual leave allowance of 28 days. Proposed changes to TUPE include the removal of the requirement to appoint employee representations in businesses with less than 50 employees and separately where TUPE transfers take effect on less than 10 employees. This is being proposed with the aim of having smaller businesses consulting directly with employees who are affected.

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Employment (Allocation of Tips) Act 2023

The Employment (Allocation of Tips) Act 2023 has received Royal Assent on 2 May 2023. The act provides that employers are under the obligation to fairly distribute tips/service charges. This will require employers to enforce a code of practice in line with the legislation which is yet to be published.

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Family Legislation

The Neonatal Care (Leave and Pay) Act, Protection from Redundancy (Pregnancy and Family Leave) Act and Carer’s Leave Act have received Royal Assent in 2023.

Neonatal care (Leave and Pay) Act
- This allows parents of babies who need neonatal care in hospital an additional 12 weeks of paid leave on top of the statutory maternity/paternity pay.
- It applies immediately from the start of employment and to those who has babies whom may be admitted to hospital for 7 plus continuous days, up until 28 days old.

The Protection from Redundancy (Pregnancy and Family Leave) Act
- This provides further protection for employees on maternity leave.
- The old law did not include protection for employees who had just returned from maternity leave, the new legislation extends these rights to include before giving birth from when the employer is informed of the pregnancy up until 18 months after giving birth.
- These rights apply also to parents adopting children as well as shared parental leave also for the extended period of 18 months.

Carer’s Leave Act 2023
- This act provides employees who either provide or arrange care for a dependant with the entitlement of one week of unpaid leave.
- The legislation provides that this entitlement is to be flexible. Meaning that employees are entitled to it from the first day of employment and can be taken.

 

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