What did we get up to last month?
We were interested (and a little surprised) to see reports in the Law Society Gazette and various other publications that the number of tribunal claims had “bounced back” following the sharp decreased witnessed after fees were introduced. However, before employers get worried, the reports are not entirely what they seem, as this post on the Hard Labour blog explains.
This article also caught our eye – it’s not deniable that sitting behind a desk all day is not a particularly active way to spend a work day. It’s a great idea to encourage staff to move about more in the office, perhaps by having walking meetings rather than gathering round a table in the boardroom, but I think it would be a challenge to spend four hours a day standing up for even the most active desk-worker.
In our last bulletin we summarised the employment-related issues forming part of the Conservative manifesto, one of which was the proposal to allow employees working in the public sector and large organisations the right to take three days per year to carry out voluntary work. However, this particular pledge now seems to have been shelved which we are sure may come as some relief to business leaders, although undoubtedly will be disappointing to staff who do voluntary work.
Any new cases to be aware of?
In Begum v Pedagogy Auras UK, the Employment Appeals Tribunal upheld the tribunal decision that the Respondent had not discriminated against Ms Begum, a job applicant, when it informed her at an interview for a nursery role that any garment worn at work should not present a trip hazard.
Ms Begum had attended the interview wearing a jilbab, a garment which covers the body from neck to the ankles. Ms Begum’s jilbab was long enough to cover her shoes and the manager was concerned that this could cause Ms Begum to slip over. She explained to Ms Begum that while there was no restrictions on Ms Begum wearing an ankle-length jilbab (which at least one other member of staff did) this should not be so long as to cause a trip hazard. Ms Begum bought a claim of indirect discrimination, claiming that the Respondent’s policy indirectly discriminated against Muslim women.
The EAT upheld the tribunal’s finding that the Respondent’s requirements that clothing worn in the nursery should not present a trip hazard did not indirectly discriminate against Muslim women. The nursery allowed women to wear ankle-length jilbabs, as long as they did not present a trip hazard.
In Gunn v NHS Direct, the EAT have given guidance about an employee’s right to redress under the Equality Act 2010 against the incoming employer in a TUPE transfer situation where that employee has objected to the transfer. In this case, Ms Gunn’s working hours had been adjusted to take into account her disability. When it was decided that the service area that she worked would be transferred NHS Direct, Ms Gunn was informed that NHS Direct would not allow her to continue on her adjusted working hours. As a result, Ms Gunn objected to the transfer, which had the effect of terminating her employment on the transfer date, and bought a claim against NHS Direct on the basis that it had failed in its duty to make reasonable adjustments. She argued that NHS Direct owned obligations to her under the Equality Act 2010 since as a potential transferring employee, she was effectively an applicant for a role with NHS Direct.
The EAT did not have to make a finding on this particular point, but gave guidance as to what it considered to be the legal position. It said that Ms Gunn was not protected against discrimination by NHS Direct as a “job applicant”. The basic principle of TUPE is that employees’ contracts continue post-transfer on exactly the same terms. It could not therefore logically be said that Ms Gunn was an applicant for employment with NHS Direct, since her contract of employment already existed and would have continued with NHS Direct, but for her objection to the transfer.
Had Ms Gunn not objected to the transfer, she would have had a claim against NHS Direct under the Equality Act 2010 in respect of the failure to make reasonable adjustments. This is because her employment would have transferred to NHS Direct rather than terminating on the transfer date.
