World Menopause Day – Acas guidance published
18 October 2019
To tie in with World Menopause Day today, Acas has published new guidance which will hopefully assist employers support staff who are affected by menopause symptoms at work. The menopause has been receiving significant media attention in recent months as there is increasing (and welcome) awareness of the difficulties which large swathes of the UK workforce who are going through menopause transition
The menopause was also in the spotlight at Hugh James’ recent Employment Breakfast Seminar held on 10 October 2019 where Louise Price delivered a very informative session on the legal and practical aspects of managing a workforce who may be facing difficulties when going through menopause transition. It is crucial that employers understand and have an awareness of the employment laws that can relate to menopause issues at work including the risks of discrimination on the grounds of sex, disability or age.
A link to the Acas guidance is provided here and should provide useful pointers for employers who are seeking to implement an effective menopause policy as well as considering what practical changes can be made to assist employees who are affected by menopause symptoms and who may, therefore, need some flexibility and accommodation in the workplace.
Gray v Mulberry – Claim for indirect discrimination based on belief in right to copyright fails
18 October 2019
The Court of Appeal has now handed down its decision in the case of Gray v Mulberry. In this case, the employee was dismissed for refusing to sign an agreement that would assign copyright to her employer over works created during her employment. The employee brought claims including for indirect discrimination on the ground of philosophical belief under the Equality Act 2010. She relied on her passionate belief in the "sanctity of copyright law" and maintained that this was a philosophical belief capable of protection under the Equality Act 2010.
The Employment Tribunal and the EAT had previously disagreed with Mrs Gray and held this belief lacked the cogency to qualify under the Equality Act 2010 as a philosophical belief system (see our previous reporting on this case).
The Court of Appeal has also now dismissed the case on the basis that the employee’s asserted belief did not put her at a disadvantage. The reason the employee had refused to sign the agreement was because of concerns around the obligations being too one-sided and not sufficiently protecting her own interests. Therefore, the court considered that there was no casual link between the employee’s belief and her dismissal. As a result, there was no need for the court to consider whether the belief was capable of being protected as a “philosophical belief” pursuant to the Equality Act 2010.
Was vegetarianism a belief qualifying for protection under the Equality Act 2010?
25 September 2019 | Conisbee v Crossley Farms Ltd and others ET/3335357/2018
No held the Employment Tribunal in Conisbee.
Mr Conisbee, a vegetarian, had only been employed for 5 months before he resigned. He alleged that he had been discriminated against on the ground of religion or belief contrary to the Equality Act 2010, is belief being vegetarianism.
The ET held that this belief did not qualify for protection under the Equality Act 2010. It found that although the claimant’s vegetarian belief was genuinely held and was worthy of respect in a democratic society, it failed to meet the other legal hurdles for protection, including the fact that it did not attain a sufficient certain level of cogency and cohesion because the reason for being a vegetarian differs greatly. The ET considered that vegetarians adopt the practice for many different reasons: lifestyle, health, diet, concern about the way animals are reared for food and personal taste.
Perhaps controversially, the ET contrasted vegetarianism with veganism, stating, obiter, that the reasons for being a vegan appear to be largely the same and that there was, therefore, a clear cogency and cohesion in the vegan belief which might be capable of protection.
It is worth bearing in mind that this decision is a first instance decision and so is not binding on other tribunals but provides at least an indication of how they may be minded to treat religion or belief claims based on vegetarianism.
Did an employer have actual knowledge of an employee's disability through information provided to the employer’s occupational health adviser?
25 September 2019 | Q V L [UKEAT/0209/18/BA]
Not in the case of Q v L [UKEAT/0209/18/BA] where judgment from the EAT has now been handed down.
In this case, the employee had only consented to the occupational health advisor forwarding an opinion to the employer about his fitness to work. It made no difference that the employee had perhaps expected more information to be passed to his employer from the occupational health advisor. On the facts, he had not consented to information being passed about his disabilities and therefore the employer could not be said to have known about them at outset of the employment.
It is worth bearing in mind that although the employer did not have "actual" knowledge of the disabilities, the EAT found that it had failed to make adequate enquiries about the employee’s medical condition once it was in possession of some further details indicating that this was the case. Therefore, from a fairly early stage of employment, the EAT found that the employer "should" have known that the employee suffered from a disability.
Employers will not therefore be able to absolve themselves from responsibility, for example in relation to considering what reasonable adjustments may be required, just because they are not in receipt of information about an employee’s disability from an occupational health advisor.
Should holiday entitlement for ‘part-year’ workers be prorated to that of full-year workers to reflect the fact that they do not work throughout the year?
25 September 2019 | The Harpur Trust v Brazel  EWCA Civ 1402
No, held the Court of Appeal in The Harpur Trust v Brazel.
This case concerned a visiting music teacher (Brazel) who was employed by The Harpur Trust (Harpur) on a permanent (zero hours) contract. She worked mainly during school term-time but there was no guarantee of hours and she was only paid for the work she carried out.
Brazel was a part-time worker in two senses, firstly, that she did not work a full working week and, secondly, that for large parts of the year (during school holidays) she did not work for the school at all. It is only this second type of part-time working with which this case is concerned. She was entitled to 5.6 weeks' paid annual leave (both under her contract and statute), which she was required to take during school holidays.
In assessing her holiday pay entitlement, Harpur made three equal payments in respect of holiday at the end of each term. Following the Acas guidance and a method with which HR practitioners will be familiar, Harpur calculated Brazel's earnings at the end of each term and paid her one-third of 12.07% of that figure.
The tribunal at first instance found that there had been no unlawful deduction of wages as a result of the application of the 12.07% calculation. It held that a principle of pro-rating should apply and that the statutory scheme should be read down for part-time workers who worked fewer than 46.4 weeks per year so that payment was capped at 12.07% of annualised hours. The tribunal found that words could be read into regulation 16 of the WTR 1998 to that effect.
Brazel appealed to the EAT in relation to the correct calculation of holiday pay only. The EAT upheld the appeal, finding that the tribunal had erred in capping her holiday pay at 12.07% of annual earnings. The EAT held that there was no requirement in the WTR to pro-rate holiday pay for part-time employees to ensure that full-time employees were not treated less favourably. The tribunal had overlooked the principle that part-time workers were not to be treated less favourably than full-time workers and that there was, as yet, no principle to the opposite effect.
The Court of Appeal declined to overturn the EAT’s decision.
Underhill LJ, giving the leading judgment, noted that the issue was whether Brazel’s holiday entitlement or holiday pay should be reduced to reflect the fact that she was a "part-year" worker. This term was coined by him to describe someone who did not work throughout the year.
The court rejected Harpur’s argument that a pro-rata principle should be applied to the accrual of leave for ‘part-year workers’; EU law did not require leave to be reduced pro-rata, and it wasn’t necessary to apply a pro-rata principle to the accrual of leave under the domestic Working Time Regulations.
The court noted that not applying the pro-rata principle could lead to anomalous results if ‘part-year workers’ worked a few weeks a year but still had 5.6 weeks leave per year. The example was given of a permanent employee who worked only one week of the year, earning say £1,000, but who would then be entitled to 5.6 weeks' notional annual leave for which they would receive £5,600. Despite the risk of such anomalies occurring, however, the court considered that if employers choose to take on such staff on permanent contracts, the advantages of permanent employment may come with additional costs in holiday pay, which wouldn’t apply to freelancers.
Although Underhill LJ was careful to emphasise the importance of the existence of a permanent contract in his deliberations, it could potentially pave the way for casual workers not employed on a permanent contract to seek to run the same argument that their holiday pay should also not be subject to the 12.07% cap. Whether this would succeed remains to be seen.
Employers who currently use the 12.07% approach to pay holiday to their zero-hours staff with permanent contracts should certainly be analysing their potential exposure and consider their options. It is clear that holiday pay should be calculated by assessing a week's pay and multiplying that by 5.6. How the 5.6 weeks' holiday entitlement itself should be calculated for such workers (particularly those who do not work term-time only and who take enough leave to satisfy the WTR 1998 in any event), is still not clear.
Komeng v Creative Support Ltd UKEAT/0275/18
25 September 2019
Was the Employment Tribunal correct to consider the effect of discriminatory conduct on the Claimant (rather than the gravity of the acts of the Respondent) when assessing appropriate injury to feelings award?
Yes, held the EAT in Komeng v Creative Support.
Mr Komeng was employed by Creative Support Ltd as a Waking Night Care Worker. Following an employment tribunal hearing in February 2018 it was held that Creative Support's failure to enrol Mr Komeng on a Level 3 NVQ course, in contrast to the way that named comparators of a different race had been treated, constituted unlawful direct race discrimination. Creative Support's refusal to allow Mr Komeng to have some weekends off, after he asked if other employees could share the burden of weekend working, was also unlawful direct race discrimination.
The tribunal found that working with colleagues with less continuous service who had the Level 3 qualification and did not work every weekend must have caused significant upset and distress. It also noted that he had persevered with his aspirations to obtain better qualifications for several years whilst receiving no support. It considered that the appropriate level of compensation should be near the top of the lower band and assessed this as £8,400.
There was no error of law by the ET to place the award of injury to feelings compensation in the lower of the Vento bands. The consideration to be made was the impact of the act on the Claimant and not the gravity of the Respondent’s actions. The EAT made clear that it is not only one-off acts that fall within the lower Vento band. The tribunal had fully considered the impact on the Claimant and was entitled to place his award at the top end of the lowest band.