The Employment Appeal Tribunal has ruled on an appeal in Cherfi v G4S Security Services Ltd which involved an employee, a security guard, who claimed religious discrimination by his employer, when he wasn’t allowed time off work to go to a mosque on Friday lunchtimes.

The employee worked at a site in North London, and he wished to go to his mosque on Friday lunchtime. This involved a considerable amount of time away from work due to transport difficulties. The reason he was not allowed time off was due to the operational requirements of the business, as the employer was contracted to ensure that security staff remained on site during lunch breaks so that enough staff were available.

This was a question of indirect discrimination, where the employer imposes a requirement – here to stay on site during lunchtimes – which means that, in this case, for reasons of religious belief, an employee cannot comply with the requirement on a Friday. The employer is required to provide an objective justification for its requirement, or else it would be discriminating indirectly against that employee by imposing a requirement that it cannot justify.

The Employment Tribunal rejected the employee’s complaint, holding that the employer had established an objective justification for its practice of requiring employees to be on site when the employee wished to be absent for religious observance, and that outweighed the impact on the employee of this policy.

If the employee were to have been allowed time off, the employer would have breached its obligations to its client, risking penalty clauses and potentially losing the contract. The employer had taken several steps to help the employee, including removing him from the Friday rota and offering him work at weekends to make up his time. It was accepted that it would have been impractical to have an extra guard employed to cover just part of the employee’s shift.

When the employee appealed, he argued that the Tribunal had failed to consider the impact of the requirement to work on Friday on him and that it had simply focused on the problems faced by the employer. The EAT disagreed, and held that the Tribunal had carried out the necessary ‘balancing act’ to ensure that when an employer’s business needs and an employee’s personal needs collide, the employer could justify its decision to stick with its practice.

The lesson for employers from this case is that when faced with a possible indirect discrimination claim, a common example is a request to work part-time after maternity leave, the employer should look at both sides of the picture and consider the impact on the employee as well as on the business. An Employment Tribunal is required to take an objective view of the situation, and an employer that has a good case should not be afraid to put it forward.

In this case, the employee’s requirement to go off site created particular difficulties for the employer, and the employer had done what it could to reduce the impact of Friday working on the employee.

Ed McFarlane
www.Deminos.co.uk

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Recent media speculation that the Government is planning to reduce the burden of employment legislation may be a ‘mirage in the Desert’.

The Government put out a press release on 11th May 2011 stating that it was considering reforms as part of a review of employment red tape. Three areas are under consideration:

1.    Compensation for discrimination: The government notes that employers are concerned of the potential for unlimited liability in discrimination cases, and that concern about high awards can push employers into settling even weak cases.

2.    Collective redundancy rules: The press release notes (wrongly) that the requirement to consult for 90 days in a collective redundancy is hindering effective restructuring. There is in fact, a 90-day period only if 100 or more employees are at risk in one establishment, for 20-99 employees the period is 30 days.

3.    TUPE: The main thing everyone probably would agree about TUPE is that if you’re not upset by it, you probably haven’t understood it. There is concern over the impact that TUPE has on new business owners, so it is a deterrent to taking over failing businesses.

All these criticisms are valid, however, in each area there is a European Law dimension and the Government cannot simply go back on laws that implement European Directives without the agreement of the other Member States to water down the Directives that are implemented in UK law. For example, an Act of Parliament that placed a cap on discrimination awards could be struck down by the European Court of Justice, as could changes in the other areas.

On the positive side, in discrimination law, it could be possible for Parliament to legislate to provide guidelines for compensation in Discrimination cases. The well-known Vento principles were developed by Judges, and recently increased by Judges with inflation-proofing in mind.

If Parliament were to set out in law guidelines for Courts and Tribunals to follow in Discrimination cases (and they are linked to other personal injury awards) that would be one way to provide more certainty about awards for injury to feelings, but it would require a wholesale revision of the current “Claims Culture”.

Even then, claims for loss of earnings in discrimination cases can be unlimited, one way to indirectly alter that might be to amend the Common Law rule on mitigation of loss to provide for the burden to fall on the employee to show that he has mitigated his loss, rather than the other way round as it is at the moment, and that would only make an employer’s task easier.

In collective redundancies, there could be clearer guidelines for when consultation begins and ends, that could provide some certainty for employers and would be a welcome start. That wouldn’t require much effort from the law makers.

On TUPE, one area where the law could be simplified is in the Service Provision Change rules that came into force in 2006. Those rules ago beyond the minimum required by the EU Directive and are partly made under the Employment Relations Act 1999, and so they are “home-made”. Therefore, the Government has some scope to amend the rules in that area without falling foul of European law. However, doing that would create even more uncertainty in an area which the law is now quite well-developed.

So, there might, one day, be some changes that could simplify the law in these areas.

One thing that the Government hasn’t suggested is reducing the cap on Unfair Dismissal. It was £12,000 until 25th October 1999, and if index-linked it would be now around £16,500. The current cap of £68,400 has gone up from £50,000. This could be one way to reduce the burden of Unfair Dismissal on employers, by reducing the maximum exposure (unless it’s a discrimination claim, of course). This would require amendment via an Act of Parliament, but it would probably be of more benefit to employers than changing the qualifying period for Unfair Dismissal from one year to two years service.

It might reduce the number of lawyers too!

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Many employers have faced the problem in a redundancy exercise of how to score an employee on maternity leave against their working colleagues, and a recent case in the Employment Appeal Tribunal “EAT” Eversheds v de Belin gives us the correct approach.

The employer, a well-known firm of solicitors, was making redundancies. In one pool, they had two staff; a man Mr de Belin who had scored 27, and a woman, who was on maternity leave, who scored 27.5, so Mr de Belin was dismissed as redundant. Mr de Belin felt that his scoring was unfair, and he was only 1 point from clear safety.

One criterion called “lock up”, with 2 points up for grabs was based on the rate of file closure. Eversheds didn’t have file closure data for the employee on maternity leave, as she had no files in the assessment period, so the two employees weren’t scored like-for-like. Mr de Belin’s lock-up score was 0.5 out of 2, based on his actual data, and Eversheds gave the woman a notional maximum score of 2. This score ensured that she was saved from redundancy, at Mr de Belin’s expense. Had she scored any lower, it would either have been a tie on 27, or Mr de Belin would have been saved from redundancy.

Mr de Belin claimed Unfair Dismissal and sex discrimination, as he had been treated less favourably than a female colleague when his score had not been adjusted, whereas her score was. Eversheds argued that they had to give someone on maternity leave maximum marks to avoid disadvantaging her due to maternity leave. That argument was rejected and Mr de Belin won his Tribunal, and was awarded compensation of £123,053.03, and as the dismissal was discriminatory, the cap on the award didn’t apply.

The Tribunal held that giving an employee on maternity leave a maximum score was sex discrimination against Mr de Belin as a man, and also that the dismissal was generally unfair as Eversheds took an unreasonable approach to scoring Mr de Belin. Eversheds appealed to the EAT.

The key question was whether Eversheds had gone overboard in trying to meet its obligation to protect an employee on maternity leave from any disadvantage, and ended up favouring her, and therefore treating a man less favourably for a sex-related reason (her pregnancy and maternity leave), the EAT agreed with the Employment Tribunal, holding that:
“…the obligation… …cannot extend to favouring pregnant employees or those on maternity leave beyond what is reasonably necessary to compensate them for the disadvantages occasioned by their condition…”

The EAT also said:

“…the Claimant (Mr de Belin) has suffered a real injustice. By giving Ms. Reinholz (his colleague) a notional maximum score, while he was given his actual score, Eversheds gave her an advantage over him which was not based on an assessment of their respective merits; and that advantage is very likely to have made the difference between him keeping and losing his job…”

The judgment did not decide what an employer should have done, unfortunately that will always depend on the facts of a particular case, but it did suggest that the scoring for the criteria could have been changed to consider a period when both members of the pool were at work or that data from a different time period could have been used, or the criterion be dropped altogether.

The key point in this case is that where an employer is scoring a pool and an employee’s score is affected by either pregnancy or maternity leave, and indeed other possible reasons that could be discriminatory, any adjustment to the absent employee’s score should be made with a view to levelling the playing field rather than tilting it her favour, for fear of dismissing someone who is pregnant or on maternity leave.

Employers faced with this type of situation should make sure that they have criteria that they can score objectively, and that if any employee’s score (often performance- or attendance-related) is affected by pregnancy or maternity leave, then they should look at all criteria to ensure:

(i)    the affected employee isn’t disadvantaged due to their condition; and
(ii)    any changes made to that employee’s scoring don’t prejudice other employees.

Employers therefore shouldn’t “throw a man overboard” in a redundancy pool simply because a woman on maternity leave is in the pool and her scores are low, it all comes down to following a fair, reasonable and, where possible, objective selection process that avoids discriminating one way or the other.

The EAT did allow Eversheds’ appeal on the amount of compensation, as there was good evidence that Mr de Belin would have been made redundant later anyway had he not been dismissed, and sent the case back to the Leeds Employment Tribunal for re-consideration of compensation.

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