How employment tribunal decisions can impact your business

by Louise Brown

December 5 2016 - Whatever the size of your business, employers need to keep abreast of changes in employment law. There have been some interesting cases in 2016 which have given clarification on key decisions which employers may face in the workplace:

Using 'protected conversations' - how protected are you?

Protected conversations were introduced to enable employers to discuss a mutually agreeable termination package with an employee without it being referred to in any future unfair dismissal claim. In the case of Faithorn Farrell Timms Plc v Bailey (June 2016), the claimant brought claims for constructive unfair dismissal and indirect sex discrimination. One issue before the court was whether such protected conversations could be referred to in the evidence in the Tribunal claim.

This case demonstrated how carefully such conversations must be treated, as evidence of these discussions may be admitted for a discrimination claim, but remain excluded regarding the unfair dismissal claim.

However, the Employment Appeal Tribunal (which handles appeals against the Employment Tribunal where a legal mistake may have been made) found that the current legislation covered not only the content of protected conversations, and later management conversations that referred to the original protected conversations and any offers made, but also the fact they had occurred. This is potentially a wider safeguard than that offered by the law on 'without prejudice' discussions.

Is it unlawful to ban a woman from wearing a hijab?

It was found in the case of Bougnaoui v Micropole SA (July 2016) that it was unlawful to ban a woman from wearing a hijab.

The employee was employed by Micropole SA as a design engineer and she was a practising Muslim. She wore a headscarf (hijab) at work and when she visited clients. The headscarf covered her head but left her face exposed. A client complained and asked that there should be "no veil next time". She was subsequently asked not to wear her headscarf when visiting clients. She refused to do so and was dismissed.

Originally her claim was dismissed. The case was then referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling on whether Micropole's requirement that an employee remove her hijab when in contact with clients was a "genuine and determining occupational requirement" under Article 4(1) of the Equal Treatment Directive.

The CJEU decided that her dismissal for wearing a hijab when in contact with customers, in defiance of a clear instruction, did amount to unlawful direct discrimination on the grounds of religion or belief, overturning the original decision. Some exceptions to this finding were envisaged where, for example, there were health and safety reasons.

Employing women with childcare responsibilities and Indirect Sex Discrimination

In the case of XC Trains Ltd v CD & Anor (July 2016) the Employment Appeal Tribunal (EAT) held that the Employment Tribunal had to weigh up the legitimate business aims of the employer against the alleged indirect sex discrimination of the employee who complained that the requirements of her employer indirectly discriminated against her.

The employee was a single mother who had three children under the age of five. She had various challenges in arranging childcare. As she was required to work over 50% of rosters and on Saturdays, it was found that this did disadvantage women as a group.

The original decision was in favour of the employee but on appeal the EAT considered whether the requirements of the employer were a proportionate means of achieving a legitimate aim. It found the law had been misapplied against the employer by failing to balance the discriminatory effect of the working conditions against the legitimate aims of XC Trains to run a train service and fulfil their contractual obligations under the franchise and the rights and needs of the workforce.

The appeal was allowed and this case shows the EAT is keen to give as much priority to the employer's business needs as it is to the employee's needs so long as the employer can show business justifications.

Tribunal balancing act

These cases show how the Tribunals have a fine balancing act to carry out between the competing needs of employers and employees. With a "hard Brexit" now seeming likely and freedom from the European Courts eventually becoming a reality, it may be that cases such as these may start to lean more in favour of employers' needs. However, all cases are fact sensitive showing the need to take legal advice before costly mistakes are made.

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