Message from the Editors,
Dan Hobbs & Clare Harrington
'Five from 5' is the free bi-monthly employment law bulletin created by the employment team at 5 Essex Court in association with Bloomsbury Law Online.
This month's bulletin contains five short articles on (i) settlement agreements; (ii) approaching changes in employment law; (iii) holiday pay; (iv) judicial assessment; and (v) shared parental leave.
The editors continue to draw upon the vast pool of experience and knowledge held by the 5 Essex Court employment law team whose members include Queen's Counsel, part-time employment judges and those appointed by the Attorney General to represent the Crown.
Was dismissing a Muslim employee for refusing to take off her hijab when visiting clients unlawful direct religious discrimination?
In Bougnaoui v Micropole SA  (Case C 188/15) Ms Bougnaoui, a practicing Muslim, refused to comply with her private-sector employer’s instruction not to wear a hijab (Islamic veil leaving face clear) when in contact with clients, and was subsequently dismissed.
The French Labour Tribunal held that the dismissal was well-founded on the basis of a “genuine and serious reason” and dismissed her claim for unlawful religious discrimination, a decision upheld on appeal.
A referral was made to the CJEU (Court of Justice of the European Union) seeking a preliminary ruling on whether Micropole’s customer’s wish, resulting in the instruction, was a “genuine and determining occupational requirement” under Article 4(1) of the Equal Treatment Directive (2000/78/EC).
In contrast to the recent opinion of Advocate General Kokott in Achbita v G4S Secure Solutions NV  (Case C-157/15), Advocate General Sharpston’s opinion stated that the prohibition on direct discrimination extends to manifestations of religion or belief, and the dismissal was unlawful direct discrimination on the grounds of religion or belief.
Such discrimination would only be lawful if based on a genuine and determining occupational requirement, limited to matters which are “absolutely necessary” to undertake the activity in question (such as health and safety). Commercial interest would not justify the application of the narrow Article 4(1) derogation.
Strike out in response to improper conduct of proceedings
In Arriva London North Ltd. v Maseya, the Employment Appeal Tribunal reinforced the exceptionality of circumstances in which it is appropriate for a tribunal to strike out a party’s case due to the manner in which it conducted proceedings.
The tribunal struck out the employer’s response under Rule 37 (1) (b), on the basis that it conducted the proceedings in a scandalous and unreasonable manner. The cause for the tribunal’s dissatisfaction were perceived disclosure failings by the respondent and putting forward a ‘false defence’.
The EAT found that the tribunal fundamentally misunderstood the case, there was no attempt to deceive and the strike out was unlawful. Even had there been scandalous or vexatious conduct, the discretion to strike out should only be exercised where that conduct has rendered a fair trial impossible (applying Arrow Nominees v. Blackledge  EWCA Civ 200). Even where a tribunal concludes that a fair trial is not possible, it is necessary to consider whether a lesser remedy is a more proportionate course to adopt. In this case, such a remedy could have included an adjournment where the respondent paid the costs. The tribunal failed to consider this and so erred in law.
This judgment confirms that strike out in response to dubious conduct is the exception rather than the rule and makes ‘slaps on the wrist’ (via the imposition of costs orders) a more likely sanction even when scandalous/vexatious conduct is properly found on the facts.
What's on trend for next season in the world of employment law?
The ACAS publication ‘Workplace Trends 2016’ is the second report ACAS has produced with the aim of identifying some of the trends it thinks will impact on the workplace in the coming year.
In this years report, one of the trends identified is workplace bullying. Practitioners are very used to allegations of bullying arising in cases brought to the employment tribunal. The term is often used by witnesses, frequently inaccurately, to describe poor relations with workplace colleagues both in cases involving allegations of discrimination and straightforward unfair dismissal.
Whether a person’s conduct amounts to bullying and how that conduct relates to the claims brought before the tribunal are obviously questions of fact in each case but it is clear that ACAS considers that such behaviour is on the increase (last year, they received over 20,000 calls on the ACAS helpline on bullying and harassment) and that employers should be reviewing their approach and management of such complaints.
Many employers will have an anti-bullying policy but, in isolation, this is unlikely to adequately address the unwanted behaviours. ACAS refers to the need to adequately train managers so that they are alert to bullying behaviour and have the people skills to know ‘how and when to intervene’.
Although extremely difficult, the employer can also agree standards of what acceptable and unacceptable behaviours should look like. This provides the manager with a positive framework when assessing particular conduct.
ACAS also points to an example of positive action by an NHS Trust in the appointment of an anti-bullying Tsar. Whilst most employers are unlikely to feel the need to create such a post, it is important that behavioural concerns are dealt with when necessary. The observation is made that often small acts of unprofessionalism, left unchecked will, over time, transform into fully fledged bullying behaviours.
What next for ACAS Codes of Practice?
Victoria von Wachter
Two recent case have placed a question mark over the extent to which the Tribunal will demand or expect the use of the ACAS Codes of Practice when navigating dismissals.
In Holmes v Qinetic (UKEAT/0206/15) the formidable Mrs Justice Simmler held that an Employment Tribunal had not erred in refusing to grant an uplift in compensation (s207A(2) TULR( C) A) in the case of a security guard who was dismissed for reasons unrelated to conduct or performance. Mr Homes was dismissed on grounds of ill health/attendance. There were no disciplinary issues associated with the dismissal and so the employer was not obliged to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.
This case was followed closely by another EAT case, that of Phoenix House Ltd v Stockman. This case involved the dismissal of Ms Stockman for SOSR (Some Other Substantial Reason) pursuant to s98(1)(b) ERA. The dismissal centred on a breakdown in the relationship between the Claimant and her management involving a number of dubious grievances. Despite disagreeing with an earlier and provisional EAT case (Hussain v Jury’s Inn Group Ltd) which placed the SOSR dismissal within the ambit of the ACAS Codes of Practice, the EAT held that the terms of the ACAS Codes do not encompass SOSR dismissals and therefore there is no need to comply with them. This came with the caveat that elements of the Codes can and should be applied to SOSR dismissals although the further step of punishing employers for non-compliance with them could not be what Parliament intended.
One note of caution for employers is that this ‘exemption’ can only work if the reason for dismissal is the same from start to finish. Where the reason for dismissal starts off as being for performance or conduct then the ACAS Codes will apply and a penalty considered for non-compliance even if, at some later stage during the process, SOSR becomes the active reason for dismissal. (Lund v ST Edmunds School Canterbury).
BREXIT: What could it mean for employers?
A month might seem like an eternity…but it was only one month ago that the UK public voted in the Referendum to leave the European Union. Whatever our personal feelings may be, Brexit is now very much a reality.
However, there is no need for businesses and employers to panic. After all, Article 50 of the Lisbon Treaty makes it quite clear that EU Treaties (i.e. European Law) shall cease to apply to the UK two years after the UK has notified the European Council of its intention to withdraw, unless the Council, in agreement with the UK, unanimously decides to extend this period.
The reality is therefore that there will be no impact on UK employment law until September 2018 at the earliest.
Even then, unfair dismissal law and the National Living Wage, for example, are unlikely to be affected. This is because these areas of employment law are purely domestic and have no foundation in EU Law. However, other key areas may be affected, such as unlawful discrimination, family friendly rights, working time, collective redundancy consultation & business transfers. All of these areas have many foundations in EU Law.
Even then, though, the position is far from clear. If, for example, the UK elected as part of the Brexit negotiations to remain a member of the European Economic Area, then EU employment laws would continue to apply (as they do in Norway).
Whatever the position, things are not going to change instantly. Any repeals or amendments to UK employment law are likely to take place on a piecemeal basis.
So the advice to businesses and employers is simple: Keep calm…and watch this space!