Legal News
A number of Equality Bill related items have hit the news over the past month.
Harriet Harman has called on businesses to disclose the steps they are taking to improve gender equality in management before the Equality Bill is passed. The EHRC is currently consulting over the draft Code to accompany the Bill when it is passed as law, and consultation is open until 2nd April so interested parties still have a chance to have their say.
The Code will help to clarify the legislation and will cover practical examples of what constitutes a belief. As the Code is currently drafted, vegans and vegetarians will have protection from discrimination so employers may want to have a say.
Another Government think tank, NEF, has come up with the crazy idea that we should all reduce our working week to 21 hours a week. I cannot see many volunteers for the accompanying pay cut, despite the obvious advantages to quality of life and more time with the kids.
Also hitting the headlines relating to pay is the news that more than 50% of the workforce are not expecting a pay rise this year. I suspect the lack of expectation is due to the fact that many are thankful for secure employment in the current climate.
Private pensions also continue to be in decline which reflects what I have seen in reality, as few employees in the private sector now have final salary pension schemes.
Case Law
The case of the Christian who was banned from wearing a Crucifix over her British Airways Uniform has been before the courts again.
In Eweida v British Airways plc [2010], the Court of Appeal has upheld the decision of the Employment Appeal Tribunal that she was not indirectly discriminated against on the grounds of religion or belief. The central issue before the Court was whether a group disadvantage was necessary in order to establish indirect discrimination.
The Court found that it was necessary, and in this case there was no evidence that Christians were put at a particular disadvantage by the policy compared to non-Christians. I was not surprised by the decision as it had already been established by lower courts that the visible display of a cross was not a requirement of the Christian faith.
Another holiday pay decision has been made following the recent barrage of decisions. The case of Lyons v Mitie Security Ltd [2010] dealt with the issue of whether the failure by an employee to comply with the contractual notice period for taking holiday meant he would lose his holiday at the end of the holiday year.
Mr Lyons made a request for 9 days' holiday on 6th March but did not give his contractual notice of four weeks for the leave, as the holiday year expired on 31st March and he wanted to use the holiday rather than lose his 9 days. The Employment Appeal Tribunal held that the notice requirements were not superseded by the right to take leave within the holiday year, so the employee lost his holiday.
The same principle would apply to holiday and notice under the Working Time Regulations. These specifically state that a worker can take the leave he is entitled subject to any notice requirements imposed on him by his employer.
I think that whilst the decision must be right with the legislation as it is currently drafted, this decision is contrary to recent decisions before the European Court of Justice where employees must be permitted to carry over leave when they are sick, so should be treated with caution. I expect that we will see changes before long in the current Working Time Regulations to take effect the raft of related decisions that have come from Europe over the past 12 months.
Sarah King
Sarah King is a Partner at the niche employment law firm PJH Law. You can read their blog here.
Also hitting the headlines relating to pay is the news that more than 50% of the workforce are not expecting a pay rise this year. I suspect the lack of expectation is due to the fact that many are thankful for secure employment in the current climate.
Private pensions also continue to be in decline which reflects what I have seen in reality, as few employees in the private sector now have final salary pension schemes.
Case Law
The case of the Christian who was banned from wearing a Crucifix over her British Airways Uniform has been before the courts again.
In Eweida v British Airways plc [2010], the Court of Appeal has upheld the decision of the Employment Appeal Tribunal that she was not indirectly discriminated against on the grounds of religion or belief. The central issue before the Court was whether a group disadvantage was necessary in order to establish indirect discrimination.
The Court found that it was necessary, and in this case there was no evidence that Christians were put at a particular disadvantage by the policy compared to non-Christians. I was not surprised by the decision as it had already been established by lower courts that the visible display of a cross was not a requirement of the Christian faith.
Another holiday pay decision has been made following the recent barrage of decisions. The case of Lyons v Mitie Security Ltd [2010] dealt with the issue of whether the failure by an employee to comply with the contractual notice period for taking holiday meant he would lose his holiday at the end of the holiday year.
Mr Lyons made a request for 9 days' holiday on 6th March but did not give his contractual notice of four weeks for the leave, as the holiday year expired on 31st March and he wanted to use the holiday rather than lose his 9 days. The Employment Appeal Tribunal held that the notice requirements were not superseded by the right to take leave within the holiday year, so the employee lost his holiday.
The same principle would apply to holiday and notice under the Working Time Regulations. These specifically state that a worker can take the leave he is entitled subject to any notice requirements imposed on him by his employer.
I think that whilst the decision must be right with the legislation as it is currently drafted, this decision is contrary to recent decisions before the European Court of Justice where employees must be permitted to carry over leave when they are sick, so should be treated with caution. I expect that we will see changes before long in the current Working Time Regulations to take effect the raft of related decisions that have come from Europe over the past 12 months.
Sarah King
Sarah King is a Partner at the niche employment law firm PJH Law. You can read their blog here.
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