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MARCH 2010


Welcome to the latest edition of the Employment Law Update brought to you by the employment team at Russell-Cooke. The aim of this service is to keep you informed of recent developments in this fast moving field of law so that you are better prepared to deal with issues as they arise in your workplace and recognise when professional advice might be required.

Contact details for members of the team are provided at the end of the Update. If you have a query about the issues covered or about any employment law related matter please do not hesitate to get in touch.

In this update:

  • Eweida v British Airways – Employer’s uniform policy requiring employees to conceal religious symbols was not discriminatory
  • Paul Buckland v Bournemouth University Higher Education Corporation - Employers cannot ‘cure’ a fundamental breach of an employee’s contract through an inquiry or appeal.
  • Mr Z H Shah v First West Yorkshire Limited – Working Time Regulations can be interpreted to allow an employee to reclaim holiday lost due to an overlapping period of sick leave
  • Bateman & Others v ASDA Stores Ltd – Employer was entitled to rely on a contractual variation clause
  • Whistle blowing: Employment Tribunals to notify relevant regulators of whistleblowing complaints from April 2010


Eweida v British Airways [2010] EWCA Civ 80

Uniform policy requiring employees to conceal religious symbols was not discriminatory.

The Court of Appeal dismissed the claim that a requirement to conceal jewellery of a religious symbol was indirect religious discrimination under the Employment Equality (Religion or Belief) Regulations 2003. The claimant, an observant Christian, was employed as a member of BA’s check in staff. The uniform policy did not at that time allow staff to wear any visible jewellery around the neck if they were in a public facing role. The Claimant attended work wearing a visible cross and refused to conceal it. She was sent home and subsequently suspended without pay. She also refused BA’s offer of a transfer without loss of pay to a role without contact with the public, where she would be free to wear a visible cross at work. The case garnered substantial publicity at the time and due to this, British Airways subsequently changed their uniform policy to allow staff to wear visible faith or charity symbols. However BA maintained that the old policy was not discriminatory.

The Tribunal was critical of the Claimant and dismissed her claim, holding that she had failed to show that Christians were placed at a particular disadvantage by the rule. However, the Tribunal also held that if the rule had placed Christians at a particular disadvantage, it would not have been justified. The Claimant appealed and BA cross appealed on the issue of justification.

The Court of Appeal considered the Regulations and upheld the Tribunal’s conclusion that BA’s prohibition on jewellery did not disadvantage Christians as a group as the Claimant had failed to show evidence of any other Christian who had been affected by the rule and she had accepted that it was her personal choice to wear a visible cross and not a religious requirement. The Court of Appeal upheld BA’s cross appeal on justification. They noted that the Claimant had previously complied with the rule for 7 years without complaint and that when objections to the rule were raised, BA had considered the objections and sought to accommodate staff diversity where appropriate. BA had not delayed unreasonably in investigating the Claimant’s grievance and had offered her an alternative role without loss of pay to resolve the situation. Consequently, even if the rule had placed Christians at a particular disadvantage and had been indirectly discriminatory, it would have been a proportionate way of achieving a legitimate aim. This decision reaffirms the clear distinction which has been drawn in previous cases between holding a belief and manifesting that belief in the workplace. Employers will generally have a greater discretion to limit manifestations of religion or belief at work in order to meet a legitimate aim.


Paul Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121

Employers cannot ‘cure’ a fundamental breach of an employee’s contract through an inquiry or appeal. In addition, the range of reasonable responses test does not apply when assessing whether an employer has fundamentally breached the employment contract.

The Claimant held a chair in environmental archaeology in the Respondent University. His duties included marking exam papers. All exam papers were routinely marked a second time and in 2006, the papers marked by the Claimant were re-marked and endorsed. The board of examiners confirmed the results. There was a particularly high failure rate and it was noted that the causes of this should be addressed.

The leader on the course subsequently re-marked the papers a third time. This was done because of a legitimate concern about the second marking, but was not properly authorised by the chair of the board of examiners. Due to concerns about possible appeals, the papers were re-marked a fourth time by another employee. These marks were close to those awarded by the Claimant but elevated some students from a straight fail to a marginal zone where marks in other subjects might mean that the student could achieve an overall pass.

The Claimant was unhappy about these events and the University instigated an inquiry into what had happened. The Claimant considered that the chair of the inquiry was not sufficiently independent. He made written submissions but refused to appear before the inquiry. The remit of the inquiry did not cover the teaching on the course but would only deal with the unauthorised re-marking of the exam papers. The inquiry’s findings supported the Claimant, noting that the marks should have been final once they had been confirmed by the board of examiners. The inquiry also criticised the process in relation to second markers and made recommendations for the future. However, the Claimant felt that his integrity had been impugned; he resigned and brought a claim for constructive unfair dismissal.

The Tribunal held that the re-marking of the exam papers for the third time was a fundamental breach of contract that was calculated to destroy the relationship of trust and confidence between the parties. The Tribunal went on to conclude that the inquiry, although fully independent, did not offer the Claimant the appropriate vindication or exoneration in the circumstances. The Employment Appeal Tribunal disagreed and held that the University had ‘cured’ the breach of contract in its inquiry.

The Claimant appealed. The Court of Appeal held that the test for a fundamental breach of contract was objective and based on a contractual question rather than any test for reasonableness. In addition, it is not possible to ‘cure’ a breach of contract. This is a concept that was incorrectly imported from the law surrounding unfair dismissal. As a result, the Claimant was entitled to resign and claim constructive dismissal, regardless of the independent inquiry which vindicated him. Employers should therefore be careful in all their dealings with employees as actions that amount to a breach of the employee’s contract cannot be cured by a favourable finding on the employee’s grievance, the upholding of the employee’s case on appeal, or any other attempt made to put the wrong right after it has been committed. This means that, if the employee remains dissatisfied, he will still be entitled to claim constructive dismissal. Employers should be fully aware of employees’ contracts and their own practices and policies when managing staff to minimise the risk of claims of constructive dismissal.


Mr Z H Shah v First West Yorkshire Limited Case No. 1809311/2009

Employee allowed to reclaim holiday lost due to an overlapping period of sick leave.

Employment Tribunal decisions are not binding on other Tribunals and are not usually reported. However, this is the first Tribunal decision on the ability to recover holiday when an employee falls sick during their leave. This follows the European case of Francisco Vicente Pereda v Madrid Movilidad SA (ECJ) C-277/08, where it was held that under the Working Time Directive, employees must receive the full benefit of their annual leave and as sick leave was for a different purpose (recuperation), the two could not overlap.

In this case, Mr Shah had booked four weeks’ holiday up to 21 March 2009. His employer’s leave year runs from 1 April to 31 March each year. He broke his ankle in January 2009 and was off on sick leave until April 2009. During his absence, he received both sick pay and holiday pay (which was at a higher rate). The Claimant sought to take his lost holiday when he returned to work but was told that he had ‘lost’ it as the company was now in a new holiday year.

The Tribunal held that Regulation 13 of the Working Time Regulations, which requires that employees take their annual leave in the current holiday year and says that they cannot be paid in lieu, is designed to ensure that employees actually take annual leave regularly. The Tribunal held that an additional section could be added to the end of Regulation 13(9) so that it applied “ save where a worker has been prevented by illness from taking a period of holiday leave and returns from sick leave, covering that period of holiday leave, with insufficient time to take that holiday leave within the relevant year; in which case they must be given the opportunity of taking that holiday leave in the following leave year.” As a result, Mr Shah was entitled to take his lost holiday in the new leave year. He would however have to account for any overpayment of holiday pay.

Employers need to be aware of the risk that employees have the right to reclaim lost holiday due to overlapping sick leave and make changes to contracts and policies to regulate claims from employees and reduce the risk of abuse.


Bateman & Others v ASDA Stores Ltd UKEAT/0221/09/ZT

Employer entitled to rely on a contractual variation clause in relation to pay.

ASDA sought to harmonise its terms and conditions for all staff. Around 8500 staff members consented to the new terms but the remaining employees (around 7000) refused and the new contracts were imposed without consent. Hundreds of claims for unpaid wages and breach of contract declarations were brought against ASDA. 6 employees were selected as test cases.

The ASDA employee handbook had been incorporated into the contract of employment and contained a clause allowing the employer to make variations. The Employment Appeal Tribunal considered the wording of the clause objectively and concluded that it was unambiguous and allowed ASDA to make variations to reflect the changing needs of its business. While any ambiguity in a contract would be construed against the party relying on it, there was no uncertainty in this wording.

Employment contracts should include appropriate variation clauses to give employers flexibility. The courts have noted that such clauses must be clear or they will be interpreted in the employee’s favour. This case confirms that a sensibly drafted contractual variation clause can provide real flexibility for an employer.


Whistle blowing: employment tribunals to share information with regulators

Claimants can bring a complaint to the employment tribunal where they believe that they have been dismissed or suffered a detriment because they have made a protected disclosure under the Public Interest Disclosure Act. Around 1,700 claims of this type were received by the Employment Tribunal last year.

The Employment Tribunal deals only with the employment claim and the extent to which the employee was dismissed or treated unfairly because of the disclosure they made. The Tribunal does not consider the validity of the disclosure made by the employee, or take any action in relation to this. Under new regulations, from 6 April 2010, a Claimant may give consent for the Employment Tribunals Service to pass information relating to public interest disclosures to the appropriate regulator.

The government launched a consultation on new procedures in relation to whistle blowing claims in July 2009. The responses to the consultation have now been published and the government has confirmed that a new system will be put in place from 6 April 2010. The ET1 form will be revised to include a tick box for the Claimant to indicate that they give consent for information to be passed to the appropriate regulator in the case of a public interest disclosure claim. The Tribunal Secretary has discretion as to whether all or part of the ET1 form should be forwarded to the regulator, who will then address the substance of the allegations where appropriate.

This is likely to result in a rise in the number of complaints being sent to regulators and will have particular significance for charities operating in the field of health and social care. It is important to implement written whistleblowing policies to ensure that employees raise concerns internally, as well as warning of sanctions which might apply if allegations are not made in good faith.


Voluntary Sector Legal Handbook

Written by the team of leading charity lawyers at Russell-Cooke Solicitors and Sandy Adirondack, The Russell-Cooke Voluntary Sector Legal Handbook is an essential guide to the law as it applies to charities, community groups and other voluntary organisations.

The entire book has been comprehensively updated for its third edition. It not only reflects legal changes that are in force, but also future changes that will or might take place.

This title covers the law of England and Wales. Some areas of law are the same in Scotland and NI but some are different and these are not covered.

The book covers:
- The organisation
- Governance
- Employees, workers, volunteers and other staff
- Services and activities
- Funding and fundraising
- Finance
- Property
- Background to the law

The book can be purchased at the following website http://www.dsc.org.uk/Publications/Law/@15924


Contact us:

The Employment Team
Russell-Cooke Solicitors,
2 Putney Hill,
SW15 6AB

Tel: 020 8789 9111


This material does not give a full statement of the law. It is intended for guidance only, and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke.

© Copyright: Russell-Cooke,

The Employment Team at Russell-Cooke
Anthony Sakrouge (Partner) – 020 8394  6504  Anthony.Sakrouge@russell-cooke.co.uk
Alex Bearman (Partner) – 020 8394 6524  Alex.Bearman@russell-cooke.co.uk
Fudia Smartt (Solicitor) – 020 8394 6525 Fudia.Smartt@russell-cooke.co.uk
Emma O'Byrne (Solicitor) – 020 8394 6537 Emma.O'Byrne@russell-cooke.co.uk

Specialists in advising charities, not for profits and public bodies
Jane Klauber (Partner) – 020 8394 6483  Jane.Klauber@russell-cooke.co.uk
Deborah Nathan (Solicitor) – 020 8394 6437 Deborah.Nathan@russell-cooke.co.uk   

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