Following the introduction of the Employment Equality (Religion or
Belief) Regulations in 2003, discrimination against employees on
grounds of religion or belief in employment, vocational training and
the provision of goods, facilities and services was outlawed. We
provide an overview of some of the most recent cases.
Direct and indirect discrimination
In London Borough of Islington v Ladele, the Court of Appeal said
that Ms Ladele, a committed Christian, had not been directly
discriminated against for her religious views when she was threatened
with dismissal for refusing to carry out civil partnership services.
The Court of Appeal said that the Council had not been motivated by
her religious beliefs, just by her refusal to officiate at civil
partnerships. Had she agreed to perform all her assigned civil
partnership duties, the Council would not have taken disciplinary
action.
Although she had clearly been put at a disadvantage (and therefore
potentially indirectly discriminated against), the aim of fighting
discrimination was a legitimate aim for the Council to have and it was
entirely rational for it to require staff to act in a
non-discriminatory way.
There was a similar outcome in the case of McFarlane v Relate Avon
Ltd in which Mr McFarlane, a committed Christian, was dismissed for
refusing to provide relationship counselling to same-sex couples. He
claimed he had been discriminated against under the regulations.
The Employment Appeal Tribunal (EAT) said that he had not been
dismissed because of his faith, but because of his refusal to comply
with Relate’s equal opportunities policy. Any other counsellor would,
therefore, have been treated in exactly the same way. It also dismissed
his claim of indirect discrimination on the basis that the dismissal
was a proportionate means of achieving a legitimate aim.
In yet another case in which the claimant was unsuccessful - Chondol
v Liverpool City Council - the EAT said that Mr Chondol (a social
worker and committed Christian) had not been treated less favourably by
the Council because of his beliefs, but because he had been improperly
foisting them on service users. It was satisfied that the Council would
have treated other members of staff in similar circumstances in the
same way.
And in Eweida v British Airways, the EAT said that to prove indirect
discrimination, the onus is on employees to show that a particular
provision, criterion or practice put a particular group (in this case,
Christians) at a disadvantage because of that religion or belief.
As Ms Eweida had not provided any evidence that others shared her
religious conviction about openly displaying a cross, she could not
claim indirect discrimination even though she personally had suffered a
particular disadvantage in that she was not allowed to attend work
wearing her cross and was not therefore being paid.
It was not enough for her to claim that there was bound to be other
Christians who felt the same way as her. She had to actually
demonstrate that was the case in order to prove indirect discrimination.
Meaning of “belief”
The regulations do not just protect workers with religious views,
however, but also those with “philosophical” beliefs. In Nicholson v
Grainger plc the EAT said that strongly held beliefs about climate
change and the environment could constitute a “philosophical belief”
for the purposes of the regulations.
However, the belief must fulfill certain criteria, as follows:
- It must be genuinely held
- It must be a belief and not an opinion or viewpoint
- It must be a belief as to a weighty and substantial aspect of human life and behaviour
- It must attain a certain level of cogency, seriousness, cohesion and importance
- It
must be worthy of respect in a democratic society, not be incompatible
with human dignity and not conflict with the fundamental rights of
others
- It should have a similar status to a religious
belief, although it could be a one-off such as pacifism or
vegetarianism which did not have to be shared by others, provided it
satisfied the above criteria
- It did not need to constitute or "allude to a fully-fledged system of thought", as long as it satisfied the criteria above
Harassment
The regulations also provide workers with protection against harassment because of someone else’s religion or belief.
In the case of Saini v All Saints Haque Centre and ors, the EAT held
that Mr Saini had been subjected to harassment by members of the
board of directors who pressurised him to provide information to help
them get rid of another member of staff. As the animosity being shown
to that other member of staff by the board was because he was a Hindu,
the board was pursuing an anti-Hindu (and therefore discriminatory)
policy.
If Mr Saini was being harassed to get rid of Mr Chantel, it must
also be because of that policy which amounted to harassment on the
ground of religion.
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Employees can sometimes be stigmatised for bringing a claim against
their employer. In Chagger v Abbey National plc and anor, the Court of
Appeal has said that employees who find it impossible to get another
job because they brought proceedings against a previous employer, are
entitled to be compensated for that “stigma loss”.
What happened?
Following his dismissal on the ground of redundancy in April 2006,
Mr Chagger successfully brought a claim of race discrimination and
unfair dismissal. At a subsequent remedies hearing a few months later,
the tribunal agreed with him that no one else in the financial sector
would now employ him because of the stigma attached to taking legal
proceedings against Abbey and awarded him £2,794,962.27 to compensate
for future loss, among other things.
The Employment Appeal Tribunal (EAT) disagreed. It said that the
tribunal should have asked whether he would have been dismissed if
there had not been any discrimination. It also held that future loss
should be limited to the period Mr Chagger would have remained with
Abbey, had there not been any discrimination. As for “stigma loss” it
said that Abbey was not liable since that resulted from the conduct of
other, “third party employers” and was not the direct consequence of
anything that Abbey itself had done.
The Court of Appeal agreed with the EAT that tribunals must ask what
would have happened had there been no unlawful discrimination, and that
atribunals must assess the chances of a claimant being dismissed
lawfully and reduce the compensation to be awarded accordingly.
The EAT was wrong, however, in its approach to assessing future
loss. Instead, this should be decided by estimating when he might
expect to get another job on a salary equivalent to his Abbey salary.
As Mr Chagger had made extensive efforts to find another job, including
those at a lower grade, which were all unsuccessful, the tribunal had
been entitled to assess future loss “on the basis of loss of career.”
As for “stigma loss”, the Court of Appeal said, relying on the
decision of the House of Lords in Malik v BCCI, that the original
employer must remain liable for it. Although Malik concerned a
different kind of stigma, the Court concluded that “the mere fact that
third party employers are the immediate cause of the loss does not free
the original wrongdoer from liability”.
The Court made clear that, in most cases, stigma loss would not need
to be considered as a separate head of loss and would “simply be one of
the features which impacts on the question how long it will be before a
job can be found”. In cases such as this where Mr Chagger tried
endlessly, but failed, to get a job, the tribunal was entitled to
conclude that he would be highly unlikely to find another job in that
sector.
In exceptional cases, however, tribunals were able to award
compensation specifically referring to the impact of stigma on future
job prospects, even if it was the only head of future loss.
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Every year the Low Pay Commission sets a basic rate as allowed for
under the 1999 National Minimum Wage (NMW) regulations. In Hamilton
House Medical Limited v Hillier, the Employment Appeal Tribunal (EAT)
said that if an employee’s hours of work always attract premium rates
of pay, the rate on which they are calculated must be the basic rate
set under the regulations.
What happened?
Ms Hillier had worked for the Civil Service Benevolent Fund since
1998 when her current employer bought the care home where she worked.
Her terms and conditions transferred over under the Transfer of
Undertakings (Protection of Employment) Regulations.
Under her original contract, her basic rate of pay was £4.38 per
hour plus a geriatric lead allowance. She then started working nights
for which she was paid time and a third for weekday nights and time and
two-thirds for weekend nights.
Her payslips from 2000 to 2002 showed she was paid a basic rate of
£4.85 with enhanced rates for weekday nights and weekend nights.
However, later pay slips showed a rate for night working only and not
the basic rate. Her employer froze her rate of pay from the date of the
transfer. She claimed that her employer was in breach of the NMW
regulations because her basic rate of pay was below the minimum rate.
And the tribunal agreed. It said that by continuing to pay her at
the flat rate that she was on in 1998, her employer had failed to pay
her the national minimum wage in relation to her basic pay.
It concluded that Hamilton House Medical “cannot look at the night
rate as the final figure. What the Claimant was entitled to was the
national minimum wage plus a third or two thirds according to which day
she worked. To fail to pay her that is an unlawful deduction of wages."
The employer appealed, arguing that if an employee is always paid at
premium rates, then those rates become their basic rate which would
mean that Mrs Hillier’s pay was actually above the NMW.
The EAT said that the key issue was the meaning of the words
"The lowest rate per hour payable to the worker in respect of time
worked by him involving those duties during the pay reference period”
in regulation 31(1)(c)(i) of the regulations.
It decided that the lowest rate payable during the reference period
clearly had to be the minimum sum due under the contract of employment,
as the regulation was intended to cover payments under the contract and
not some other arbitrary amount. The employer had confused the
word “paid” with “payable”.
It pointed out that the philosophy of the regulations was “clearly
that an employee's basic minimum wage before overtime enhancement or
other allowances should not fall below the statutory minimum and it
seems to me that it would be completely contrary to the purpose of the
legislation if that obligation could be avoided simply because an
employee chooses to normally work those hours when she would be in
receipt of some enhancement”.
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Legislation to give Britain’s 1.3 million agency workers important
new rights was laid before Parliament recently. They should be on the
statute book before the end of this Parliament and become law by
October next year.
As agreed in 2008 by the TUC and CBI, the changes will give agency
workers the right to the same pay, holidays and other basic working
conditions as directly recruited staff, but only after 12 weeks in a
job.
Their right to the same pay will apply not just to the basic hourly
rate, but to pay for all work done, including bonuses that are directly
related to the performance of the agency worker personally.
But, as set out in the Directive, they will not extend to some of
the wider benefits that permanent staff can enjoy in the context of
their longer-term relationship with their employer, such as
occupational pensions and sick pay.
The regulations include provisions to deal with repeat contracts
which are designed to prevent workers acquiring their rights. Agencies
and hirers will have to pay awards of up to £5,000 to a worker if a
tribunal finds that the anti-avoidance rules have been breached.
And to provide a greater deterrent in low-value cases there will be
a general minimum award of two weeks’ pay, which is subject to tribunal
discretion if that level of award does not seem reasonable.
Agency workers will also be entitled to other benefits from the first day of their assignment, such as:
- information about internal vacancies to give them the same opportunity as other workers to find permanent employment
- equal access to on-site facilities such as child care and transport services.
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