Since our last bulletin, we have the result of the referendum but obviously not yet a clear idea of how it will affect businesses, and employment law in general. The Government indicated during a High Court hearing on 19th July that it will not trigger Article 50 before the end of the year. The uncertainty will therefore continue for some time yet. In the meantime, leading employment law commentators have predicted that:-
- TUPE will remain;
- Most of the Working Time Regulations will remain;
- The Agency Worker Regulations are likely to be repealed because of their unpopularity both with employers and, to a lesser extent, trade unions.
- Discrimination and protected characteristics are likely to be unaffected: the UK had introduced legislation some time before the EU required it to do so. However, there may be a call for discrimination compensation to be capped after we have left the EU.
Staying in the UK …..
As for other developments, a recent press report has highlighted the importance of employers having in place robust social media policies, and of the need for employees to be extra careful not to post anything on Facebook which might bring their employer in to disrepute. In this report, The British Council has said it will investigate comments allegedly made by one of its employees criticising the Royal Family, and Prince George in particular.
Hijab ban: Direct Discrimination
Remaining with the subject of the EU, we can report that the Advocate General of the CJEU has advised that it is unlawful for an employer to ban a Muslim employee from wearing her Islamic headscarf when in contact with clients. Any such ban will only be lawful if it is based on a genuine ‘occupational requirement’.
This is only an opinion, however, and the CJEU might reach a different conclusion.
ACAS Code of Conduct
The Employment Appeal Tribunal has said that this Code does not apply to ill-health dismissals. The Claimant argued that the employer’s failure to follow the Code entitled him to an uplift in his award. The EAT confirmed that the Code does, however, apply to all cases where the employee’s misconduct or poor performance led to the dismissal and the subsequent claim.
Abuse of Migrant Workers
The Supreme Court handed down a judgment on 22nd June saying that abuse of migrant workers on grounds of their status as vulnerable migrants does not amount to unlawful discrimination. The two Nigerian workers, in the UK under domestic migrant visas, were abused by their employers. After escaping, they brought discrimination claims as well as claims under the minimum wage legislation. Their discrimination claims ultimately failed because their mistreatment was due to their vulnerable status and not because of their nationality.
Please contact us for further information and explanation of all the above matters, and for advice on social media policies.
call Jennie Borgnis on 01328 852830 or e-mail click here