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Latest Brief - Week Ending 29 May 2015
A possible trip too far?
A nursery did not discriminate against a job applicant when it made clear at interview that its uniform policy meant that any garment worn should not present a tripping hazard. The Claimant, Ms Begum, was Muslim and wore a full length jilbab (covering her from neck to ankles). 25% of the nursery’s employees were Muslim; 4 of these wore head coverings and one wore a full length jilbab. Ms Begum was offered a job working at the nursery following the interview in which the uniform policy was discussed. She refused the offer and brought a claim for indirect discrimination on grounds of religion or belief.
The Employment Appeal Tribunal (EAT) held that this was not a provision, criterion or practice (PCP) which indirectly discriminated against Muslim women who wore jilbabs.
Having found there to be no PCP, the EAT did not have to consider the issue of justification. However, both the EAT and the tribunal regarded the nursery manager as best-placed to make a common sense assessment of the risk to health and safety presented by the applicant's jilbab. Had the requirement to wear a garment which did not present a tripping hazard been discriminatory, it would have been justified.
Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) UKEAT/0309/13.
Zero hours exclusivity clause unlawful
The Government has finally implemented legislation with effect from 26 May 2015 to ban exclusivity clauses in zero hours workers’ contracts which would prevent them from being able to work for other employers.
The cost of getting it wrong
Again from 26 May 2015, the maximum penalty for breach of the national minimum wage legislation has been increased to £20,000 in respect of each underpaid worker.
Latest Brief - 30 April 2015
Woolworths Collective Consultation Decision
The European Court of Justice has today given its decision in the Woolworths case, tackling the thorny issue of what is meant by an “establishment,” for the purposes of collective redundancy consultation.
An employer must collectively consult where it is proposing to dismiss as redundant 20 or more employees at one establishment within a 90 day period. There has, however, been some controversy over the meaning of an establishment, following an earlier ruling by the Employment Appeal Tribunal.
The good news for employers is that the ECJ has now confirmed that “establishment” refers to an individual workplace (or more technically, the entity to which the redundant workers are assigned to carry out their duties), rather than the employer’s business as a whole.
This means that when counting the number of affected employees, a company only needs to collectively consult at the individual establishments where it proposes to make 20 or more employees redundant – there is no need for it to add together dismissals at other establishments across the rest of the business. It is also not essential for the individual site to have an independent management function, for it to be considered an establishment.
So in this case, Woolworths was entitled to treat each store as a separate “establishment”, meaning it did not need to collectively consult, other than where each individual store had 20 or more employees at risk of redundancy.
This decision will still need to be formally implemented by the Court of Appeal, but is a welcome clarification for employers.