Does an employer’s requirement that an employee work on a Sunday amount to discrimination?
In this month’s E-News, we consider whether it was discriminatory for an employer to require a Christian employee to work on a Sunday; the issues an employer should take into account when considering whether an employee is disabled within the meaning of the Equality Act 2010, and how extensive an investigation should be when investigating an employee’s alleged gross misconduct. In this month’s News, we consider some important changes recently announced by the Government.
Does an employer’s requirement that an employee work on a Sunday, amount to discrimination?
The case of Mba v London Borough of Merton considered whether it is discriminatory for a Christian employee to be required to work on Sundays.
Ms Mba worked as a carer in a children’s home which cared for children with complex special needs. She was a strict Christian who requested not to be rostered to work on a Sunday even though her contract provided otherwise. Ms Mba’s request was accommodated for the first two years of her employment. Thereafter, she was required to work on Sundays as the home was understaffed. Ms Mba refused to work when required. Following a disciplinary hearing, Ms Mba resigned and alleged that the arrangement for Sunday work amounted to a provision, criterion or practice (PCP) and amounted to indirect discrimination.
An Employment Tribunal (ET) found that the requirement for Ms Mba to work on a Sunday was a proportionate means of achieving a legitimate aim and therefore there was no discrimination. The ET had heard evidence from a Bishop who stated that it was not a core tenet of his belief to abstain from working on a Sunday.
On appeal, the Employment Appeal Tribunal (EAT) found that the ET had not applied the correct analysis of the PCP and the discriminatory impact that it would have on Ms Mba. The correct comparator should have been the group in general (Christians who shared the same belief as Ms Mba). However, this did not affect the overall outcome at first instance. The EAT also held that it was not for the ET to consider what should or should not be a core tenet of the Christian faith; however the ET was correct to consider how many Christians shared the same belief as Ms Mba since this related to the proportionality test. The test was whether the requirement was a proportionate means of achieving a legitimate aim. Here, the legitimate aim put forward by Merton, was to provide continuity of care for the children. The requirement for Ms Mba to work on a Sunday was a proportionate means of achieving the legitimate aim.
The reality of this case is not one that is clear cut. It demonstrates that each case where discrimination on the grounds of religion or belief is alleged, will turn on its own facts. In particular employers should consider what alternative options might be available in order to accommodate an employee’s request not to work on a particular day.
In addition, the very recent European Court of Human Rights decision of Eweida and others v United Kingdom (see this month’s employment briefing), is reflective of a focus towards personal expression of faith rather than a disadvantage experienced by a particular group, so this may again affect any future stance adopted by a Court or Tribunal.
Whether an employee is disabled within the meaning of the Equality Act 2010?
The case of Aderemi v London and South Eastern Railway Limited considers the correct approach an employer should take when determining whether an employee is disabled within the meaning of the Equality Act 2010.
The Claimant, Mr Aderemi was a station assistant who was required to stand for long periods of time as part of his normal day-to-day activities at work. He was dismissed by his employer on grounds of capability as a result of a back condition which prevented him from standing for longer than 25 minutes at a time. An ET held that Mr Aderemi was not disabled within the meaning of the Equality Act 2010, which provides that a person is disabled if he has a physical or mental impairment that has a substantial and long-term adverse effect of their ability to carry out normal day-to-day activities.
The EAT upheld Mr Aderemi’s appeal and stated that the ET had utilised the wrong approach. The ET had (wrongly) focussed on what Mr Aderemi could do rather than what he was unable to do as a result of his impairment, (he was unable to stand for longer than 25 minutes, bend, stretch or carry). The EAT held that once the ‘adverse ability’ test is met, one should then consider whether the impairment is ‘minor’ or ‘trivial’. If neither, the impairment must be treated as substantial. This requires an analysis of how an employee carries out their day-to-day activities both with and without the impairment complained of, in order to ascertain if the impairment is substantial. The case was subsequently remitted back to the ET for rehearing.
This case provides useful guidance to employers who are dealing with employees who could be defined as disabled within the meaning of the Equality Act 2010. Employers should consider whether the impairment could be described as having more than a ‘minor’ or ‘trivial’ impact upon an employee’s ability to carry out normal day-to-day activities. The correct approach is to consider what tasks the employee is unable to do, rather than those that they are still able to carry out.
How thorough does an investigation have to be where allegations of gross misconduct are considered?
The case of Stuart v London City Airport case suggests that a higher threshold may apply in cases where an employee is dismissed following an allegation of gross misconduct or where their integrity is called into question.
The case of British Home Stores Limited v Burchell stipulates that an employer need hold only reasonable grounds for believing that an employee is guilty of misconduct, if seeking to dismiss that particular employee for conduct reasons. Accordingly, any response must fall within a band of reasonable responses.
Mr Stuart worked at London City Airport. He queued up to purchase some items from the airport’s duty free store. Whilst queuing, he stepped outside the store briefly to talk to a colleague whilst still holding the items. He was accused of stealing them by a police officer.
A disciplinary hearing was held and oral statements were taken from Mr Stuart and the store manager. An employee of the store provided a written statement. The disciplining officer explored the layout of the shop as Mr Stuart stated that he believed he had not left the shop area. No CCTV footage was reviewed and no other employees present were interviewed.
Mr Stuart was subsequently dismissed for dishonest conduct and breach of trust and confidence.
Mr Stuart brought a claim for unfair dismissal. At first instance the ET held that the investigation was reasonable and that it was fair for London and City Airport to have dismissed Mr Stuart. Mr Stuart subsequently appealed on the grounds that the decision was perverse. He stated that he had an unblemished record and a thorough investigation of all the circumstances was not conducted. For instance, the CCTV footage should have been reviewed in order to ascertain the facts.
The Employment Appeal Tribunal allowed the appeal. The EAT acknowledged that the allegation of dishonesty was a very serious one indeed and, in their view the allegation of dishonesty had not been properly investigated.
The EAT held that careful consideration should be given where an employee’s honesty has been called into question. In this case, there had been a direct conflict in the evidence that had been collected (between the shop assistant and that of Mr Stuart). Accordingly, further investigations should have been undertaken. Ultimately, the ET’s decision was overturned.
This case serves as a reminder that employers must consider all of the evidence before them and undertake a thorough investigation when dealing with an employee who has allegedly committed misconduct or whose integrity is called into question. If the employee raises a plausible defence, this remains even more crucial.
In the news
The Government has confirmed:
A cap will be imposed on the unfair dismissal compensatory award of twelve months’ pay (which is still capped at the current limit if twelve months’ pay is greater). In its response to the consultation, the Government confirmed that, despite a concern over the discriminatory impact on some Claimants, parties would be more likely to enter into negotiations if they had a realistic impression of what they could reasonably expect.
TUPE may be amended to remove service provision change from the definition.
The Department for Work and Pensions has announced that a new Health & Work Advisory and Assessment Service will be introduced in 2014, which will provide state funded occupational health tests for employees who are on sick leave for more than four weeks. This comes as a response to the report on sickness absence in Great Britain carried out by Dame Carol Black in 2011. There are many other services planned to be introduced under the service.
New Compensation Limits
The Tribunal compensation limits are set to increase from tomorrow as follows:-
Current 1 — February 2013
The maximum compensatory award for unfair dismissal …….£72,300 …. £74,200
The maximum limit on a week’s pay …………………………….£430 …….. £450
The minimum basic award for certain unfair dismissals ……. £5,300 …. £5,500
If you have any questions relating to this article, please contact Alexandra Gess or Sejal Raja.
t: 020 7227 6700
t: 020 7227 7410
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.