Thursday, 2 June 2016
An employer can prevent a Muslim employee from wearing an Islamic headscarf if the ban is based on a general rule prohibiting political or religious symbols at work, according to a top European lawyer’s opinion.
Religious dress at workEstablish workplace dress code
Should a female Muslim employee be allowed to wear a veil or headscarf?
Quick reference: religious clothing at work
She informed her employer that she was going to begin wearing a headscarf in the workplace.
The receptionist’s employer told her that the wearing of any visible religious symbols was contrary to its rules on neutrality, which applied during contact with clients.
The employer subsequently amended its written rules on workplace dress and appearance. It introduced a uniform and banned workers from wearing any visible symbols expressing their political, philosophical or religious beliefs.
The Muslim receptionist’s refusal to go to work without a headscarf ultimately resulted in her dismissal.
She brought a domestic discrimination claim and Belgium’s labour appeal court referred her case to the ECJ.
The Belgian court sought guidance from the ECJ on whether or not a rule forbidding all staff from wearing any visible political or religious symbols could lead to direct discrimination against Muslims who wish to wear a headscarf at work.
Advocate general Juliane Kokott, giving her opinion in advance of the full binding ECJ decision in Achbita and another v G4S Secure Solutions NV, suggested that there is no direct religious discrimination in these circumstances.
Muslim headscarves at work: Advocate general’s opinion“Unlike sex, skin colour, ethnic origin, sexual orientation, age or a person’s disability, the practice of religion is not so much an unalterable fact as an aspect of an individual’s private life, and one, moreover, over which the employees concerned can choose to exert an influence.
“While an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behaviour or (as in the present case) his clothing.”
She pointed out that there was no evidence that the followers of one particular religion or belief were singled out.
The Advocate General gave the examples of a confirmed atheist who expresses through dress and appearance an anti-religious stance, or an employee who wears items that display an allegiance to a political party.
According to the Advocate General, the employer would have applied its neutrality rule to those employees in the same way.
Advocate General Kokott admitted that a ban on Muslim headscarves could constitute indirect religious discrimination.
However, she went on to say that the rule could be justified to enforce an employer’s policy of religious and ideological neutrality, as long as the application of the rule is proportionate.
While stressing that it is for the domestic courts to strike a fair balance between the needs of the employer and the employee’s individual rights, Advocate General Kokott believed that the employer’s stance in this case was justified.
The Advocate General opinion in this case, which is not binding on EU member states, has been given in advance of the full ECJ decision. No date has been set for the publication of the full judgment.
The ECJ has also heard Bougnaoui and another v Micropole Univers, a French case that involved very similar circumstances.
There, a Muslim IT engineer was dismissed after refusing to remove her Muslim headscarf while visiting clients, some of whom had complained.
It is likely that the ECJ judgments in Achbita and Bougnaoui will be published at the same time.
My thanks to Personnel Today for this piece see them at:
Wednesday, 1 June 2016
The Immigration Act 2016 has received Royal Assent, introducing a range of measures to crack down on businesses that employ migrants illegally.
The Government said the aim of the new rules is to “tackle the exploitation of low-skilled workers”.
Immigration minister James Brokenshire said: “Some employers seem to think that by employing workers who are less likely to complain, including vulnerable migrants, they can undercut the local labour market and mistreat them with impunity.
“The unscrupulous need to know that breaking the law is a high-risk activity and the full force of the state will be applied to them.”
The Immigration Act 2016 makes a number of changes to the criminal offence of employing illegal workers. A Government factsheet on the new legislation says: “By making the test more objective we are making it easier to prove the offence.”
Foreign workers resourcesPermission to work in the UK contract clause
Letter asking a job applicant to provide evidence of his or her right to work in the UK
Employing people from abroad policy
Further, it introduces a completely new power to close premises for up to 48 hours where a business employs illegal migrants.
If the employer can prove that it has conducted the appropriate checks, the “closure notice” may be cancelled.
Where it cannot, the business may be placed under special compliance requirements, including a period of continued closure.
The Immigration Act also makes illegal working a criminal offence in its own right, with a maximum custodial sentence of six months and/or a fine. Wages paid to the illegal worker can be seized as the proceeds of crime.
Aside from illegal working, the Act creates a new Director of Labour Market Enforcement to oversee the public bodies that enforce the different minimum standards for workers, including HM Revenue and Customs.
There is also a visa levy (immigration skills charge) on employers that use foreign labour.
Clio Springer, senior employment law editor at XpertHR said: “While employers that comply with the immigration rules when employing foreign nationals are unlikely to be affected by many of the Immigration Act’s enforcement provisions, those that sponsor migrants under tier two of the Government’s points-based system may, in future, find themselves having to pay the visa levy (immigration skills charge).
“The details are yet to be decided and the Government has said that there will be a consultation so employers should look out for further developments.”
In addition, all public-sector employees who work directly with the public will be required to speak fluent English (or English or Welsh if they are in Wales), and the Government will issue a code of practice to help public authorities identify fluency.
Although the Immigration Act 2016 is now law, the majority of the measures will be commenced only once regulations are made.
The Government has produced a range of factsheets on the Immigration Act.
My Comment: clients have said they feel uncomfortable asking someone if they have the right to work, get over it! you must ask! Personnel Today kindly supplied this information in full
A mistake by a private security company during a training exercise led to a fake bomb being left in a toilet at Old Trafford, resulting in the evacuation of 75,000 fans at Manchester United’s final league game of the season. Estimates put the cost of rearranging the game at £3 million. What is the legal position for employers when an employee makes a single serious mistake at work?
While the Acas code of practice on disciplinary and grievance procedures requires employers to give employees a series of warnings before they dismiss an employee for poor performance, it is well established from case law that it may be lawful to dismiss an employee for a one-off act if it constitutes a very serious mistake.
Stephen Simpson rounds up five examples from case law in which employees have been dismissed for one-off mistakes at work.
1. Catastrophic mistake endangering lives can lead to fair dismissal
Poor performance at workCan an employer dismiss an employee for a one-off act of poor performance?
Capability: line manager briefing
Performance improvement procedure
In that case, the Court of Appeal held that it was fair to dismiss an airline pilot whose negligent landing put the lives of passengers at risk.
The pilot’s actions amounted to gross incompetence and could have had deadly consequences. The airline was entitled not to take the risk of a recurrence.
While employers must operate a series of warning, the courts and tribunals will normally understand if an employer dismisses an employee for an action that has potentially serious safety consequences.
2. But serious errors are not an automatic reason to dismissThe courts and tribunals are less likely to allow employers to dismiss an employee for a mistake that is unrelated to health and safety.
In the 1981 case Inner London Education Authority v Lloyd, the Court of Appeal limited the application of its own ruling in Taylor v Alidair Ltd.
There, the Court of Appeal distinguished between making a mistake that could endangers lives (as was the case in Alidair) and gross incompetence where an employee has not been given the proper support to do his or her training (which was the case in LLoyd).
The lesson from Inner London Education Authority v Lloyd is that gross incompetence will only “excuse” a serious failure to follow proper dismissal procedures where continuing with employment would prove a risk to health and safety of others.
3. Employee’s mistake that put his own life at risk was fair reason for dismissalIn a number of cases involving one-off mistakes, employees have put themselves at risk, but there was no danger to anyone else. Should this make a difference?
In Mulla v Nestle UK Ltd, an experienced employee entered a a high-risk piece of machinery without following the correct procedures.
The machine had just been brought back into operation after a fatal accident. Strict rules had been introduced involving a system of master and slave keys and a requirement to wear an orange tabard.
The employee, who was wearing a green tabard (the wrong colour), entered the machine without a key for a short period (less than a minute).
Following his dismissal, the employment tribunal concluded that he had given no consideration to workplace safety and had acted thoughtlessly.
His unfair dismissal claim was rejected.
4. Recent example of fair dismissal for isolated incidentEmployers looking at the law on dismissals for one-off mistakes may be concerned that the leading case Taylor v Alidair Ltd is from a very long time ago.
Are there any more recent examples from the case law?
Warnings: tasksIssue an employee with a formal verbal warning for misconduct
Give an employee a first written warning for misconduct
Deliver a final written warning for misconduct
In that case, the employer dismissed a cleaner who was caught wearing headphones while cleaning a train exterior.
Due to the serious – potentially fatal – risks posed by working on and around trains, the company has strict health and safety rules on wearing headphones while working.
The employment tribunal dismissed his claims, including for unfair dismissal. The tribunal found that dismissal was an appropriate sanction in the circumstances.
5. Serious mistake is no excuse for an on-the-spot dismissalEven when an employer believes that an employee has become a liability, it should still follow the Acas code of practice on disciplinary and grievance procedures as far as possible.
In Vickery v Kars of Tiverton Ltd, an inexperienced garage mechanic was instantly dismissed for not tightening a bolt on a car that he had been working on.
The employment tribunal held that the dismissal was unfair because the employer had not followed a fair procedure under the Acas code.
The tribunal pointed out that the claimant was in the first year of an apprenticeship and under the direct supervision of an experienced mechanic, who should have checked his work.
Dismissal for a single serious mistake may not be fair if the individual is inexperienced and is not being supervised properly.
My Comment: don't "shoot from the hip" seek proper advice and weigh up the risks before making any decision. Personnel Today very kindly provided this informative item see their full article here
Can you withdraw a job offer once it has been made? We look at the risks employers face if they change their recruitment plans.
Sometimes, employers need to withdraw an offer of a job. The hiring situation may change because of a general recruitment freeze, a restructure within the organisation or a change of management. Or perhaps the funding for the post has been withdrawn.
Alternatively, the employer may become aware that the selected candidate is not suitable after all.
Job offers can be withdrawn after they are made, but there are risks associated with doing this; withdrawing an offer because circumstances have changed looks like bad planning and could affect the employer’s reputation. Furthermore, the employee may be able to bring a tribunal claim for breach of contract.
When is the contract of employment formed?An employment contract is formed once an unconditional job offer is made and accepted. If the employer withdraws an unconditional job offer once it has been accepted, it is effectively terminating the contract and could be liable for damages for the individual’s loss.
Even though the individual has not started working, there will be a notice period due – just as with other terminations. Damages could amount to what the individual would have received if the employer had given proper notice – including any pay and benefits due if he or she would have started work during the notice period.
What if recruitment plans change?If an employer’s recruitment plans change due to business needs and it has to withdraw job offers, it should notify the recruits as soon as possible to try to limit the damage and enable them to mitigate their potential loss.
The selected candidate might not have resigned from the current employer yet. Or, if they have, they may still be able to ask for their old job back – the sooner this is done the better.
Further, any notice period for termination of the contract is more likely to end before the individual would otherwise have started work, if the employer withdraws the job offer quickly.
Obviously, if the employer is withdrawing the job offer in these circumstances, it should explain its reasons and apologise.
Pre-recruitment checks and job offersMost job offers are conditional on the new recruit satisfying certain conditions. For example, the selected candidate may need to provide references or evidence of qualifications, or they may need to demonstrate their right to work in the UK.
If the individual does not satisfy one or all of those requirements, the employer can withdraw the job offer without being liable for damages.
However, if it does not make clear that the job offer is conditional, and then withdraws the offer because the recruit has not satisfied one of its requirements, this will amount to a breach of contract and the employer may be liable for damages.
Therefore, offers of employment should make absolutely clear that they are conditional on certain requirements being met. Failure to do so can be costly.
My Comment: as in all things, do take advice before you do anything that impact or invite litigation. my grateful thanks to those good people at "personnel today" for their informative piece see them at