Medical Professionals and Conscientious Objection

Two devoutly Roman Catholic midwives who refused to take even supervisory roles in the termination of pregnancies have failed to convince the Supreme Court that their NHS employer trampled on their right to conscientiously object.

The women pointed to the terms of the Abortion Act 1967, which gives all medical professionals the right to choose not to ‘participate’ in abortions, except where the procedure is necessary to save a pregnant woman from death or serious injury to health. They were dissatisfied with the arrangements put in place by their employer to accommodate their objections. However, their grievances were rejected.

After the women mounted a successful judicial review challenge, their employer was directed to reconsider its policy in respect of conscientious objectors. However, in allowing the employer’s appeal, the Court found that, as a matter of pure statutory interpretation, the word ‘participate’ meant ‘actually taking part’.

The employer had rightly taken the view that delegation, supervision and support did not amount to ‘participating’ in abortions. Given the nature of the proceedings, wider issues as to whether the women’s human right to respect for their religious beliefs had been unlawfully restricted did not fall to be considered.

Obesity Can Constitute a Disability, ECJ Rules

obeseThe European Court of Justice (ECJ) has ruled that obesity can constitute a ‘disability’ within the meaning of EU Directive 2000/78/EC, which establishes a general framework for equal treatment in employment.

The ruling came in response to a question referred to the ECJ by the Danish District Court after an overweight childminder who in 2007 had a body mass index of 54 claimed that his dismissal from his employment with the local council resulted from unlawful discrimination on grounds of obesity.

The ECJ ruled that EU legislation does not prohibit discrimination on grounds of obesity per se. However, obesity can fall within the concept of disability within the meaning of the Directive in circumstances where a worker is prevented by ‘long-term physical, mental of psychological impairments’ from effective participation in the workplace on an equal basis with other workers.

In the ECJ’s view, the reason for a worker’s obesity is not in point, as making a distinction as to cause would run counter to the aim of the Directive.

In practical terms, employers with workers whose size has a disabling effect on a day-to-day basis on their ability to do their job must be prepared to make reasonable adjustments to accommodate their needs.

Government Acts to Prevent Large Backdated Holiday Pay Claims

In a move described by the TUC as a ‘blatant attempt to water down’ last month’s decision of the Employment Appeal Tribunal in Bear Scotland v Fulton that holiday pay should reflect non-guaranteed overtime that is routinely worked, the Government has laid before Parliament regulations amending the Employment Rights Act 1996 and the Working Time Regulations 1998 so as to limit Employment Tribunal (ET) claims on this issue to two years before the date on which the ET1 claim for unlawful deduction of wages is lodged and clarifying that the right to payment in respect of annual leave is not intended to operate in such a way as to provide that right under a worker’s contract. It is a separate statutory right.

There will be a transitional period before the two-year time limit is introduced. It will only apply to complaints presented to the ET on or after 1 July 2015.

Disloyal Employee Receives £50,000 Damages Bill

A senior recycling company employee who violated the duty of good faith and fidelity he owed his bosses when he upped sticks and set up a rival business paid a heavy price for his disloyalty when the High Court ordered him to pay more than £50,000 in damages.

The man, who managed one of the company’s depots, successfully argued that he did not owe a fiduciary duty to his employers and that restrictive covenants in his contract were unenforceable. However, the Court nevertheless found that he had breached his contract by ‘directly and intimately’ involving himself in setting up a competing business.

His new employers had ‘conspired’ with him to breach his contract and both were held liable to pay the company damages of £51,822. The man was also left facing heavy legal costs bills after his counterclaim that he had been wrongfully dismissed by the company was rejected.

Extra-Territorial Reach of Employment Tribunals Considered

A novel attempt to deploy human rights legislation to extend the territorial reach of UK employment tribunals, so that they could deal with whistleblowing cases from around the globe, has fallen on fallow ground but may be a sign of things to come.

An Italian investment banker claimed to have been unfairly dismissed from his post in Singapore after he made allegations of financial malpractice. The matter’s sole connection to Britain was that the employer bank had its headquarters in London.

The banker had his claim under the Employment Rights Act 1996 (ERA) struck out by the Employment Tribunal on the basis that it lacked territorial jurisdiction. In challenging that ruling before the Employment Appeal Tribunal (EAT), the banker’s lawyers raised issues which had not previously been considered.

In arguing that a ‘looser’ territorial test should be applied to whistleblowing cases, it was submitted that such a broad interpretation of the ERA was necessary to achieve compliance with the right to freedom of expression enshrined within Article 10 of the European Convention on Human Rights (ECHR). In an increasingly small world where companies operated globally, UK citizens, it was argued, had ‘a right to hear’ disclosures made abroad concerning British employers.

In dismissing the banker’s appeal, the EAT noted that neither the ECHR nor any provision of European Union law held sway in Singapore. It was a step too far to suggest that the mere fact that the bank had its headquarters in Britain was enough to bring the matter within the reach of domestic tribunals, given that the banker was a foreigner who made his disclosures abroad.

Controversial Employment Tribunal Fees Are Lawful

Controversial charges imposed on those who use Employment Tribunals (ETs) have been approved by the High Court – despite a trade union’s plea that they discriminate against the poor, weak and vulnerable, rendering their employment rights illusory.

Access to ETs and the Employment Appeal Tribunal (EAT) was free of charge until July 2013, when the Government for the first time introduced fees. Since that time, there has been a dramatic decline in the number of cases being heard. Only those on very low incomes are exempted, or partially exempted, from the charges.

Challenging the fees, the trade union Unison argued that they were unlawful under domestic and European law. They were said to make it ‘virtually impossible or at least exceptionally difficult’ for large numbers of people to access ETs and the EAT. They were also alleged to discriminate against women, ethnic minorities and the disabled, who would be less likely to be able to afford them.

Dismissing Unison’s case, however, the Court noted that, despite a wealth of statistics showing the huge impact of the charges on the number of cases passing through ETs and the EAT, there was little evidence of ‘actual cases’ in which people had been denied access to justice as an effective way of redressing wrongs.

The Government’s objective in introducing charges was to pass on about a third of the annual cost of running ETs and the EAT to litigants who could afford to pay fees. They were also designed to discourage unmeritorious claims, thereby making the system faster and more efficient, and to encourage other means of dispute resolution instead of treating litigation as ‘a first resort’. The Court found that those aims were ‘perfectly proper’ and justified any ‘very small’ discriminatory impact that the introduction of fees might have.

Do You Comply With Display Screen Health and Safety Laws?

Many workers spend a large part of their day looking at a computer screen, laptop or touch screen. However, a survey commissioned by Specsavers, covering 138 companies of varying sizes in both the public and private sectors, has revealed that fewer than half of all employers (47 per cent) fully understand the Health and Safety (Display Screen Equipment) Regulations 1992, which deal with the health and safety issues associated with regularly working with Display Screen Equipment (DSE) – i.e. on a daily basis for continuous periods of an hour or more.

Employers have a duty to ensure the provision of appropriate eye and eyesight tests, on request, to users of DSE and to any employees who are to become users. If the eye test shows that the user needs glasses specifically for DSE work, the employer must pay for a basic pair of frames and lenses. However, 49 per cent of employers who took part in the survey merely offer a contribution towards DSE eyecare and 10 per cent expect the employee to pay for it themselves.

Furthermore, 27 per cent of employers failed to comply with the Regulations either by not having an eyecare policy or by not communicating their policy to employees, which is one of the stipulations of the legislation.

The Health and Safety Executive has a free leaflet, ‘Working with display screen equipment (DSE)’, which gives advice for employers and employees on minimising risks and ensuring compliance with the law.

National Security Can Trump Individual Employment Rights

In a case which involved a tricky balance being struck between national security and individual employment rights, a Muslim immigration officer who was dismissed from his post without any explanation has failed to convince a tribunal that he is entitled to know at least the gist of the reasons which lay behind his sacking.

The officer had his security clearance withdrawn before being suspended and ultimately dismissed. The Home Office gave no reasons whatsoever for any of those decisions. He launched proceedings, claiming that his unexplained treatment was due to discrimination against him on grounds of his race and religion.

Following a preliminary hearing, an employment judge acceded to a Home Office request that parts of the proceedings should be held behind closed doors in the absence of the immigration officer and his legal advisers. Although he would be represented during the ‘closed’ hearings by a special advocate, he was refused access to any information relating to the reasons for his dismissal.

Challenging the judge’s decision before the Employment Appeal Tribunal (EAT), the immigration officer’s lawyers argued that, due to the tight secrecy of the closed hearings and the complete absence of information, he would have no opportunity to properly instruct the special advocate or to answer the case against him.

However, in dismissing the officer’s appeal, the EAT noted that the judge had had to strike a balance between the public interest in maintaining national security and his private interest in obtaining the means to fight his case effectively. The procedure followed in national security matters depended on the particular facts of each case and the immigration officer had no absolute right to be told anything at all about the reasons for his dismissal.

Computer Programmer Breached Employer’s Copyright

A computer programmer and former non-executive director who breached his employer’s copyright by leaking specialist software to a trade rival is facing a substantial High Court damages claim after his wrongdoing was revealed.

The man had written the recruitment software for his employer but had covertly made it available to another company operating in the same field. The Court found that he had acted in his own interests and in breach of the fiduciary duty he owed as a director, a position from which he had only subsequently resigned.

His employer had not been aware of, or consented to, his deliberate infringement of copyright and his failure to reveal what he had done amounted to a further breach of duty. His plea that his employer had left it too late to sue him – a six-year time limit applies to breach of copyright cases – was defeated by his attempt to conceal his wrongdoing. The ruling entitled the employer to seek damages or an account of any profits which the man had garnered from his copyright infringements.

Holiday Pay and Overtime – UNITE Will Not Appeal Against EAT Decision

In the latest case on workers’ remuneration in respect of annual leave (Bear Scotland Ltd. and Others v Fulton and Others), the Employment Appeal Tribunal (EAT) ruled that employers should include ‘non-guaranteed’ overtime that is routinely worked when calculating an employee’s holiday pay.

The EAT held that this only applies to the 20 days’ annual leave entitlement guaranteed under the Working Time Directive (WTD), not the additional eight days’ entitlement granted under Regulation 13A of the Working Time Regulations 1998, and claims for unlawful deductions from holiday pay will be subject to the three-month limitation period for bringing claims laid down by the Employment Rights Act 1996. This will limit any retrospective liability on the part of employers, particularly as the EAT ruled that additional leave under Regulation 13A should be ‘the last to be agreed upon during the course of a leave year’.

Recognising the importance of the issues, the EAT granted the parties leave to appeal to the Court of Appeal on all points on which they lost, but doubted whether an appeal against its main finding as regards guaranteed overtime and normal remuneration would succeed.

However, the trade union Unite, which acted for the claimants, has indicated that it will not be appealing against the decision on limitations on retrospective claims.

That is unlikely to be the end of the matter but, for the time being at least, employers should include non-guaranteed overtime when calculating holiday pay, as well as other payments which constitute a worker’s normal remuneration.

We can advise you on your individual circumstances.